Summary
allowing defendant to renew motion for sanctions based on claims no longer before the court
Summary of this case from Int'l Techs. Mktg., Inc. v. Verint Sys., Ltd.Opinion
01 Civ. 10080 (RWS)
March 25, 2004
THOMAS J. FLEMING, ESQ., KENNETH J. RUBINSTEIN, ESQ., MICHAEL B. FISHER, ESQ., Of Counsel, OLSHAN GRUNDMAN FROME ROSENZWEIG WOLOSKY, New York, NY, for Plaintiff
EDWARD H. POMERANZ, ESQ., NANCY R. SILLS, ESQ., Of Counsel, GRAUBARD MILLER, New York, NY, for Defendant
OPINION
Plaintiff Steven A. Greenberg ("Greenberg") has moved to amend a judgment of this Court entered on or about October 24, 2003 which granted defendant Steven Chrust ("Chrust") summary judgment against Greenberg. For the reasons stated below, Greenberg's motion is denied.
Prior Proceedings and Background
This action was commenced on November 14, 2001, by the filing of a complaint alleging causes of action for (1) common law fraud; (2) securities fraud; (3) negligent misrepresentations; and (4) breach of fiduciary duty. The procedural history and facts of this case have been set forth in previous opinions disposing of the parties' motions, familiarity with which is assumed. See Greenberg v. Chrust, 198 F. Supp.2d 578 (S.D.N.Y. 2002) ("Greenberg I"); Greenberg v. Chrust, No. 01 Civ. 10080 (RWS), 2002 WL 31444902, 2002 U.S. Dist. LEXIS 21103 (S.D.N.Y. Oct. 31, 2002) ("Greenberg II"); Greenberg v. Chrust, No. 01 Civ. 10080 (RWS), 2003 WL 367067, 2003 U.S. Dist. LEXIS 2209 (S.D.N.Y. Feb. 10, 2003) ("Greenberg III"); Greenberg v. Chrust, 282 F. Supp.2d 112 (S.D.N.Y. 2003) ("Greenberg IV"); Greenberg v. Chrust, 297 F. Supp.2d 699 (S.D.N.Y. 2004) ("Greenberg V").
Chrust's motion for summary judgment was granted in an opinion and order dated September 10, 2003, which concluded with the phrase "Enter judgment on notice." See Greenberg IV at 123. A judgment in accordance with that opinion and order, dated October 24, 2003 ("the October Judgment"), was subsequently entered on the docket.
In relevant part, the text of the October Judgment explains "[t]hat for the reasons stated in the Court's Opinion . . . and Order dated September 10, 2003, defendant's motion for summary judgment is granted; accordingly, the case is closed."
Each of the parties thereafter moved for sanctions against the other, and in an opinion and order dated January 20, 2004, both motions were denied. See Greenberg V. That opinion and order, like its predecessor, concluded with the phrase "Enter judgment on notice." See id. at 706.
On or about February 3, 2004, Greenberg filed a notice of settlement and a proposed amended judgment which would add to the October Judgment a reference to the fact that the parties' respective motions for sanctions were denied pursuant to Greenberg V. Chrust subsequently opposed the entry of Greenberg's proposed amended judgment and submitted a proposed counter-judgment that reflects only the opinion and order set forth inGreenberg V and makes no mention of Greenberg IV or the October Judgment. Letter-briefs were exchanged between the parties and treated as a motion which was marked fully submitted on February 25, 2004.
The text of the proposed amended judgment reads, in relevant part: "[F]or the reasons stated in the Court's Opinion and Order dated September 10, 2003 and its Opinion and Order dated January 20, 2004, judgment is hereby entered in favor of defendant, with no award of sanctions against any of the parties hereto."
Discussion
Greenberg seeks to amend the October Judgment on the ground that it was filed without notice and thus in contravention of the Court's September 10, 2003 opinion and order. Greenberg claims that he received no notification of any proposed judgment prior to entry of the October Judgment, nor any notification of the entry of the October Judgment itself thereafter from either the Court or Chrust.
Chrust opposes Greenberg's motion, arguing that Greenberg is attempting to obtain a new time period in which to file an appeal of the Court's opinion and order in Greenberg IV which resulted in the October Judgment. Chrust further asserts that Greenberg's motion is not timely under Federal Rule of Civil Procedure 59(e).
To the extent the October Judgment deemed this case closed, it is hereby re-opened.
I. Standard for a Motion to Amend a Judgment
Where there is no indication as to which Federal Rule of Civil Procedure applies to a motion to amend a judgment, courts may construe the motion as within the purview of any of several applicable rules. See, e.g., Association for Retarded Citizens of Connecticut, Inc. v. Thorne, 68 F.3d 547, 553 (2d Cir. 1995). "Under the Federal Rules of Civil Procedure, there are three types of motions by which a judgment may be amended (as opposed to set aside): (1) a motion to `alter or amend a judgment' under Fed.R.Civ.P. 59(e); (2) a motion to correct `[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission' under Fed.R.Civ.P. 60(a); and (3) a motion for relief from the judgment under Fed.R.Civ.P. 60(b)."Hodae ex rel. Skiff v. Hodge, 269 F.3d 155, 158 (2d Cir. 2001).
If Greenberg's motion were construed as being brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, it would necessarily be deemed untimely. See Fed.R.Civ.P. 59(e)("Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment."). For that reason, Greenberg's motion will not be considered here under the rubric of Rule 59(e). See Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991)("If a motion to modify or set aside the judgment is served more than 10 days after entry of the judgment, it is properly considered a motion under Fed.R.Civ.P. 60 (b), not one under Rule 59(e)."); accord Association for Retarded Citizens of Connecticut, Inc., 68 F.3d at 553.
In any event, a judgment should be modified under Rule 59(e) "`only where the moving party demonstrates that the Court has overlooked factual matters or controlling decisions that were presented to it on the underlying motion.'" Perreca v. Gluck, 262 F. Supp.2d 269, 272 (S.D.N.Y. 2003) (quoting Whiteman v. Federal Republic of Austria, No. 00 Civ. 8006 (SWK), 2002 WL 31368236, at *1 (S.D.N.Y. Oct. 21, 2002)). Greenberg has made no such showing here.
Nor may Greenberg's motion be considered under Rule 60(a), as Rule 60(a) motions are available only "to correct a judgment `for the purpose of reflecting accurately a decision that the court actually made.'"Hodge, 269 F.3d at 158 (quoting Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995); see also Dudley v. Penn-America Ins. Co., 313 F.3d 662, 671 (2d Cir. 2002) (Sotomayor, J., concurring) ("A Rule 60(a) motion is directed to errors or omissions in the essentially ministerial act of transcribing the court's rendered judgment into writing . . ."). Greenberg has not alleged that the October Judgment inaccurately reflectsGreenberg IV or that amendment of the October Judgment is required to correct any clerical error contained in the October Judgment, making it inappropriate to consider this motion one brought under Rule 60(a).
Rule 60(b), the only remaining option, sets forth the grounds on which a court, in its discretion, may rescind or amend a final judgment. It provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . ., (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . . or (6) any other reason justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b). What the recitation of these reasons "justifying relief from the operation of the judgment" makes clear is that Rule 60(b) pertains to efforts to revisit and revise the actual conclusions expressed and relief granted in a judgment. Greenberg, however, is not seeking to revise the substance of the October Judgment or to obtain relief from the substantive effect of that Judgment. Indeed, the amended judgment Greenberg proposes expressly adopts the reasons set forth in Greenberg IV as the basis for judgment being entered in favor of Chrust, just as the October Judgment does. What Greenberg is seeking to alter is not the substantive effect of the October Judgment but, it appears, the effective date of the judgment's entry. Rule 60(b) does not seem to be the appropriate vehicle for making such an amendment. Nonetheless, for the purposes of evaluating Greenberg's motion, it will be assumed that Rule 60(b) provides a proper basis for such a motion.
It should be noted that even were this Court inclined to grant Greenberg's motion, the amendment proposed would be unlikely to affect Greenberg's ability to appeal Greenberg IV. "Where a judgment is reentered, and the subsequent judgment does not alter the substantive rights affected by the first judgment, the time for appeal runs from the first judgment." Farkas v. Rumore, 101 F.3d 20, 22 (2d Cir. 1996) (citation omitted); see also FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12 (1952) ("[T]he mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken . . . begin to run anew.") (footnotes omitted); accord Rezzonico. v. HR Block, Inc., 182 F.3d 144, 150 (2d Cir. 1999).
II. Standard for a Rule 60(b) Motion
The Second Circuit has instructed that Rule 60(b) provides "extraordinary judicial relief" which can be granted "only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also Employers Mut. Cas. Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996) ("A movant under Rule 60(b) must demonstrate `exceptional circumstances' justifying the extraordinary relief requested."). In evaluating a Rule 60(b) motion, the courts of this circuit also require that the evidence in support of the motion be highly convincing, that the movant show good cause for the failure to act sooner, and that no undue hardship be imposed on the other parties as a result. See, e.g., Kotlicky v. United States Fidelity Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987); Williams v. New York City Dep't of Corrections, 219 F.R.D. 78, 84 (S.D.N.Y. 2003); Kellogg v. Strack, No. 96 Civ. 2118 (DLC), 2000 WL 565189, at *2 (S.D.N.Y. May 8, 2000). In light of Greenberg's allegations concerning the purportedly erroneous and seemingly unexpected entry of the October Judgment, this Court will construe Greenberg's motion as if brought under Rule 60(b) (1), which provides for relief from judgment in light of mistake, inadvertence, surprise, or excusable neglect. III. Greenberg Has Not Met His Burden Under Rule 60(b)
"All Rule 60(b) motions must be made within a reasonable time, and motions under Rule 60(b)(1), (2) and (3) must be made within one year after the judgment." Kotlicky v. United States Fidelity Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987) (internal quotation marks and citations omitted). Accordingly, Greenberg's motion is timely.
A party may not depend on the broad "any other reason" provision of Rule 60(b)(6) where the basis for the Rule 60(b) motion may be construed under any other clause of Rule 60(b). See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863-64 n. 11 (1988) (citing Klapprott v. United States, 335 U.S. 601, 613 (1949)). Greenberg's motion therefore will not be construed under Rule 60(b) (6).
Greenberg has not established the requisite exceptional circumstances that would permit him to prevail under Rule 60(b)(1), nor has he demonstrated good cause for failing to act sooner.
The parties do not dispute that Greenberg IV directed the entry of judgment on notice. Nonetheless, neither party purports to have made any efforts to submit proposed forms of judgment reflecting the holding ofGreenberg IV until at least January 2004. Although Greenberg IV contained no express direction as to the time period for the parties to submit forms of judgment, the absence of any such direction should not be taken to suggest that the time period in which such forms may be submitted is limitless, nor does it excuse the parties' failure to do so during the weeks that followed the issuance of Greenberg IV. Delay of the sort exhibited here is not to be encouraged. Cf. Matteson v. United States, 240 F.2d 517, 519 (2d Cir. 1956) (" [I] n these days of unusual public interest in and criticism of the law's delays we can think of nothing more deserving of criticism than so bootless a delay as that of the two months here involved . . . while winning counsel are formally verbalizing a result already reached and announced.").
Greenberg's counsel claims to have contacted the Clerk of the Court after receiving the Court's opinion in Greenberg V to discuss entry of judgment in connection with Greenberg IV. (Letter of Thomas J. Fleming to the Court, dated Feb. 6, 2004, at 1-2.)
Although the submission of forms of judgment may have traditionally been left to the prevailing party, now either party may request that judgment be entered pursuant to Fed.R.Civ.P. 58(d). See also Fed.R.Civ.P. 58 Advisory Committee Notes (2002 Amendments) (noting that the new text of Rule 58(d) "allowing any party to move for entry of judgment on a separate document will protect all needs for prompt commencement of the periods for motions, appeals, and execution or other enforcement").
In light of the parties' delay, the entry of the October Judgment some six weeks after the issuance of Greenberg IV — while contrary to the direction of that opinion and order that the parties enter judgment on notice — was eminently reasonable and is fully consonant with the tenor of Rule 58 of the Federal Rules of Civil Procedure, which urges the clerk and the court to enter judgments promptly. See Fed.R.Civ.P. 58 Advisory Committee Notes; see also 11 C. Wright, A. Miller M. Kane,Federal Practice and Procedure § 2786 (2d ed. 1995 Supp. 2003). Therefore, the entry of the October Judgment will not be deemed a mistake for purposes of Rule 60(b)(1), nor may any purported surprise occasioned by the October Judgment's entry be said to rise to the level of the exceptional circumstances required to grant a motion under Rule 60(b).
Greenberg has made no arguments to justify his neglect to enter judgment on notice following the issuance of Greenberg IV and prior to the entry of the October Judgment, so the "excusable neglect" factor under Rule 60(b)(1) is not relevant here.
Moreover, Greenberg's conduct provides no basis for granting the relief sought under Rule 60(b), as he has failed to show good cause for not acting sooner to amend the October Judgment. Greenberg's sole argument for not having acted sooner appears to be that he was not aware of the October Judgment's entry. Parties, however, have "an obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal" or otherwise contest. United States ex rel. McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir. 2001) (citations omitted). This obligation may not be neglected simply because the parties are not expecting entry of an order or judgment at a certain time. See In re O.P.M. Leasing Svcs. Inc., 769 F.2d 911, 916 (2d Cir. 1985).
As Greenberg has not shown good cause for failing to act sooner, the other two factors for consideration under Rule 60(b) — the submission of highly convincing evidence and the lack of undue hardship to other parties — need not be reached.
In certain circumstances, as evidenced in the Second Circuit's holding in Mennen Co. v. Gillette Co., a court may excuse a failure to monitor the docket where, as here, the district court has directed the parties to enter judgment on notice. See Mennen Co. v. Gillette Co., 719 F.2d 568 (2d Cir. 1983) (reversing district court's order denying plaintiff's motion for an extension of time to appeal under Fed.R.App.P. 4(a)(5)). In Mennen, a district court dismissed a lawsuit, directing the parties to submit judgment on notice. See id. at 569. The parties complied within three weeks of the issuance of the opinion, but subsequently learned that, despite the district court's direction, the court's clerk had already entered a judgment four days after issuance of the opinion in question, thereby beginning the plaintiff's 30-day appeals period. See id. The plaintiff appears only to have become aware of the "phantom judgment" entered by the clerk some two weeks after the 30-day appeals period had run. See id.
Under these circumstances, the Second Circuit concluded that the record did not support "an inference of procrastination, ineptitude or dilatoriness" but instead reflected "good faith error by a party who was deceived by a chain of unfortunate events upon which it was entitled to, and did, rely." Id. at 571. This was so despite the fact that "it is customarily the duty of trial counsel to monitor the docket and to advise himself when the court enters an order against which he wishes to protest." Id. at 570 (citing MCA, Inc. v. Wilson, 425 F. Supp. 457, 459 (S.D.N.Y. 1977)). While a failure by trial counsel to do so is "indeed negligent, . . where the omission occurs because the party has been misled by action of the court or its officers, such neglect may be excusable." Mennen, 719 F.2d at 570 (citations omitted).
No such excuse is warranted here in evaluating Greenberg's failure to act sooner to amend the October Judgment. Greenberg (along with Chrust) failed to comply with the direction to enter judgment on notice set forth in Greenberg IV during the six weeks following its issuance. Greenberg also, by his own admission, only became aware of the existence of the October Judgment some twelve weeks following its entry on the public docket, suggesting that, were it not for the October Judgment, Greenberg would have let eighteen weeks elapse before even attempting to comply with the Court's direction in Greenberg IV. These circumstances suggest that, far from showing good cause for his delay in moving to amend the October Judgment, Greenberg has displayed a marked disregard for both the Court's direction and the evolution of the docket.
That Greenberg claims not to have received notice of the entry of the October Judgment or been aware of it prior to January 2004 is irrelevant to the direction to enter judgment on notice, which refers to the submission of proposed forms of judgment on notice to all interested parties prior to entry of any judgment. This direction does not, as Greenberg appears to believe, refer to an obligation to notify parties of the entry of the judgment itself. In any event, a party's purported lack of notice "of the entry of the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed . . ." Fed.R.Civ.P. 77(d); see Rezzonico. v. HR Block, Inc., 182 F.3d 144, 151-52 (2d Cir. 1999); Mennen, 719 F.2d at 570.
Conclusion
For the reasons set forth, Greenberg's motion is denied. The parties are directed to enter judgment on notice in reference to Greenberg V no later than April 7, 2004, whereupon this case will be closed.It is so ordered.