When a district court dismisses a complaint and gives the plaintiff a deadline to amend the complaint, a notice of appeal of the dismissal must be filed within 30 days of the last day set for the plaintiff to amend the complaint to be timely, according to the Eleventh Circuit in Burt v. Univ. of Fla., No. 23-12616 (11th Cir. 2025).
An English professor at the University of Florida sued the university, alleging that he had been punished for First Amendment protected activity and that his procedural due process rights had been violated. The district court dismissed the complaint on June 21, but in its order, the court gave the professor until July 3 to file an amended complaint. The order specifically instructed the clerk to enter judgment if the professor did not amend by that date. Although the professor did not amend his complaint, the clerk did not enter judgment until July 14. The professor filed his notice of appeal on August 10, which was within 30 days of July 14 but over thirty days after July 3. The university argued that the professor’s appeal was untimely.
The Eleventh Circuit agreed. In an opinion written by Judge Grant and joined by Judges William Pryor and Kidd, the court held that a 1986 holding in Schuurman v. Motor Vessel Betty K V, 798 F.2d 442 (11th Cir. 1986) required it to find that the appeal was untimely. Federal Rule of Appellate Procedure 4(a)(1)(A) provides that for a notice of appeal to be timely, that notice must be filed with the district clerk within 30 days after entry of judgment or order appealed from. In Schuurman, the court held that when a court dismisses a complaint and specifies a particular date by which the plaintiff may amend, the dismissal order becomes a final judgment on the date by which the plaintiff must amend the complaint. The order accordingly becomes final on that date, trigging the right to appeal, whether or not the clerk actually files an order dismissing the case.
The professor argued that because the district court’s order specifically directed the clerk to file a separate dismissal order if he failed to amend, the Schuurman rule does not apply. The Eleventh Circuit rejected that argument, holding that Schuurman does not contain any exceptions.
Although the court applied Schuurman, it expressed considerable doubt over whether the Schuurman rule is still valid. The Schuurman rule, according to the court, “sits uneasily with” the Supreme Court’s holding from Jung v. K. &D. Mining Co., 356 U.S. 335 (1958). And even though post-Schuurman amendments to Rule 58 in 2002 also suggest that the Schuurman rule is no longer necessary, the Eleventh Circuit has applied Schuurman after 2002. Even with its doubts, the court held that it was bound to apply Schuurman under its prior-panel-precedent rule.
The court accordingly dismissed the professor’s appeal as untimely.