RLI Ins. Co. v. JDJ Marine, Inc., No. 12-3871 (2d Cir. 2013)

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Justia Opinion Summary

JDJ Marine moved to reinstate an appeal dismissed after its failure to comply with the court's second scheduling order for filing a brief. The court concluded that JDJ Marine had demonstrated a persistent indifference to the court's scheduling orders and local rules. Accordingly, the court denied the motion to reinstate the appeal.

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12-3871-cv RLI Insurance Co. v. JDJ Marine, Inc. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2012 4 (Submitted: March 8, 2013 5 Docket No. Decided: May 10, 2013) 12-3871-cv 6 7 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 8 9 RLI Insurance Co., Plaintiff-Counter-Defendant-Appellee, 10 11 12 13 14 15 16 17 v. JDJ Marine, Inc., Movant-Defendant-Counter-Claimant-Appellant, Commerce Bank, N.A., Intervenor. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 18 19 20 B e f o r e: NEWMAN, WINTER, and CABRANES, Circuit Judges. Motion to reinstate an appeal after a dismissal based on a 21 failure to file a brief in compliance with a scheduling order. 22 The motion is denied. 23 24 25 26 27 28 29 30 31 32 33 John F. Karpousis, Freehill, Hogan & Mahar, LLP, New York, New York, for MovantDefendant-Counter-Claimant-Appellant. 1 1 2 PER CURIAM: Appellant JDJ Marine, Inc., moves to reinstate an appeal 3 dismissed after its failure to comply with this court s second 4 scheduling order for filing a brief. 5 6 The motion is denied. BACKGROUND On September 28, 2012, appellant filed its notice of appeal. 7 It filed a scheduling letter on November 13, 2012 pursuant to 8 Local Rule 31.2(a)(1)1 selecting a date of January 15, 2013 on 9 which its opening brief and appendix would be due. 10 11 The court so- ordered the deadline. On January 10, 2013, five days before the brief was due, 12 appellant filed a motion for an extension of time. 13 accompanying the motion, appellant stated that counsel had been 14 unable to complete the brief because his offices were 15 significantly affected by the October 28, 2012 storm Hurricane 16 Sandy. 17 (Jan. 10, 2013). 18 In the papers Aff. in Supp. of Mot. for Extension to File Br. at 1-2 On January 17, 2013, we granted the motion for an extension 19 giving counsel an additional month and one-half, as requested, to 20 file a brief. 21 normally granted but was believed by the court to be justified by 22 the storm. This extension was considerably longer than those However, the order stated, 1 Local Rule 31.2(a) establishes the court s brief scheduling procedure. Under this rule, parties set their own deadlines within a period of 91 days of the applicable ready date - typically, for appellants, the date on which the last transcript is received, and, for appellees, the date on which an appellant s brief is filed. 2 1 2 3 4 5 6 7 8 9 10 11 [T]he appeal is dismissed effective March 1, 2013 unless a brief is filed by that date. A motion for reconsideration or other relief will not stay the effectiveness of this order. RLI Ins. Co. v. JDJ Marine, Inc., No. 12-3871 (2d Cir. Jan. 17, 2013). On February 26, 2013, three days before the extended due 12 date, appellant moved for another extension, this time for thirty 13 days. 14 other cases, out-of-state business travel, and responsibilities 15 as a mediator precluded him from submitting the brief by the due 16 date. 17 (Feb. 26, 2013). Counsel s supporting affidavit stated that preparation for Aff. in Supp. of Mot. for Extension to File Br. at 1-2 18 Because this court s order of January 17, 2013, directed 19 that the appeal is dismissed effective March 1 unless a brief is 20 filed by that date and that a motion for reconsideration or 21 other relief will not stay the effectiveness of this order, the 22 second motion for an extension, decided on March 8, 2013, was 23 denied as moot in light of the dismissal of the appeal. 24 On March 8, 2013, appellant filed the present motion to 25 reinstate the appeal. In the accompanying affidavit, counsel 26 stated that he was prejudiced because, rather than decide [his 27 motion] on a timely basis, this court left the motion open and 28 undecided . . . seven . . . full days after the filing deadline. 29 Aff. in Supp. of Mot. to Reinstate at 2 ΒΆΒΆ 5-6. 30 again in the affidavit the press of other business as the reason 31 for the failure to file a brief. 3 Counsel outlined 1 2 DISCUSSION A brief discussion is necessary to understand our decision 3 to deny the motion. About ten years ago, the court faced a 4 caseload crisis. 5 calendared for argument was at an historic low, so low that 6 calendars sometimes could not be filled. 7 of a diminished caseload; in fact, pending cases numbered in the 8 thousands above historic levels because of a huge influx of 9 immigration matters. The number of cases briefed and ready to be This was not the result See, e.g., Comm. on Federal Courts, The 10 Ass n of the Bar of the City of N.Y., The Surge of Immigration 11 Appeals and Its Impact on the Second Circuit Court of Appeals 12 (2004), available at 13 http://www.nycYCbar.org/pdf/report/AppealSurgeReport.pdf. 14 The problem of so few cases ready for argument was 15 determined to be the result of a culture in which the bar had 16 come to believe that the 40- (for appellant) and 30- (for 17 appellee) day time periods set out in Federal Rule of Appellate 18 Procedure 31(a)(1) were meaningless and that motions for 19 extensions of time, usually for 30 days, to file briefs would be 20 routinely granted time after time. 21 of the fact that the orders granting the extensions would just as 22 routinely state, in boldface type no less, that only 23 EXTRAORDINARY CIRCUMSTANCES would justify another extension. 24 The cause of the failure of the EXTRAORDINARY CIRCUMSTANCES 25 warnings was that the Clerk s Office, which ruled on the motions, 26 was reluctant to resort to coercive measures - and was so 4 This belief existed in spite 1 perceived by the bar. 2 for extensions would be sent to a judge for decision and that, 3 with warnings appropriate to the particular case, coercive 4 measures, including dismissal, would be used when the warnings 5 failed to produce a brief. 6 It was, therefore, decided that motions Altering a culture in which much of the bar had come to 7 believe that briefing schedules were issued only to be 8 automatically extended until convenient for counsel to file a 9 brief was difficult. After the new system of judge-decided 10 motions was in place for several years, the number of cases ready 11 for calendaring had increased, but problems remained. 12 particular, the Clerk s Office often had to process, and the 13 extensions judge had to decide, 50-75 extension motions per week. 14 Experiments were undertaken with some attorneys who had 15 numerous appeals pending before the court and were filing equally 16 numerous motions for extensions of time. 17 attorneys were asked to propose a schedule for filing the briefs 18 in all pending cases the attorney had before the court on the 19 understanding that the schedule would be met without further 20 extension motions. 21 present method of allowing all parties to appeals and petitions 22 for review to select a filing date within a 91-day period after 23 the ready date, see supra Note 1, or in the case of appellees, 24 after the appellant s brief is filed. 25 considerably longer than that allowed by Federal Rule of 26 Appellate Procedure 31(a)(1). In In particular, some The success of this experiment led to the 5 Our 91-day period is 1 However, allowing counsel to choose a date within such an 2 extended period of time has a consequence: 3 to comply with the date chosen and extensions of time are granted 4 grudgingly and only for brief periods of time. 5 27.1(f). 6 counsel is expected See 2d Cir. R. Moreover, for appellants in civil actions, the extension is 7 often granted with a provision for automatic dismissal of the 8 appeal if the appellant s brief was not filed by the extended 9 date. See 2d Cir. R. 31.2(d) ( The Court may dismiss an appeal 10 . . . for failure to timely file a brief or to meet a deadline 11 . . . . ). 12 accompanied by a warning to counsel that further motions will not 13 stay the effectiveness of the order. 14 simply restates a rule of this court that a motion for an 15 extension of time to file a brief does not stay the effectiveness 16 of the scheduling order already in force. 17 27.1(f)(1). 18 When entered, the automatic dismissal provision is This particular warning See 2d Cir. R. When appellees seek extensions, dismissal of the appeal is 19 inappropriate for the obvious reason that a dismissal would 20 benefit the appellee, and an order is often entered that provides 21 for treating the case as ready for calendaring on the extension 22 date whether or not appellee s brief is filed. 23 In the present matter, appellant has demonstrated a 24 persistent indifference to the court s scheduling orders and 25 local rules. 26 inadequate because the press of other business is not an First, the motion for a second extension was 6 1 extraordinary circumstance justifying an extension under our 2 rules, especially given the liberal policy of allowing lawyers to 3 establish their own dates for filing briefs within 91 days of the 4 ready date. 5 circumstance, such as serious personal illness or death in 6 counsel s immediate family, the court will not grant a motion to 7 extend the time to file a brief. ). 8 9 See 2d Cir. R. 27.1(f)(1) ( Absent an extraordinary Moreover, appellant violated a local rule by waiting until the last minute to file both extension motions. 2d Cir. R. 10 27.1(f)(3) ( A party seeking to extend the time to file a brief 11 must move as soon as practicable after the extraordinary 12 circumstance arises. ). 13 extension was filed just five days before the filing date 14 selected by counsel. 15 occurred months before the brief s due date and even before 16 counsel selected that date. 17 was granted. 18 days before the date on which the brief was due but relied upon 19 grounds - trials and mediation - known for some time, perhaps 20 even before the first extension motion was filed. Appellant s first motion for an Still, it relied on events that had Nevertheless, a six-week extension The second motion for an extension was filed three 21 Appellant was, therefore, afforded ample time, and 22 considerable choice in selecting dates, in which to file its 23 brief and appendix and given an explicit warning of the 24 consequences of failing to meet the extended deadline. 25 granting the first motion extended the time for filing well 26 beyond the 91-day period and plainly stated that the appeal is 7 The order 1 dismissed effective March 1 unless a brief was filed by that 2 date. 3 would not stay the effectiveness of the dismissal order. 4 notice simply reflected our rules that a deadline for a brief 5 remains in effect unless the court orders otherwise, 2d Cir. R. 6 27.1(f)(1), and [t]he court may dismiss an appeal . . . for 7 failure to timely file a brief or to meet a deadline. 8 R. 31.2(d).2 9 docket and to prevent counsel from triggering automatic It stated, further, that a filing of a subsequent motion This 2d Cir. The purpose of these rules is to maintain an orderly 10 extensions simply by filing motions for extensions and waiting 11 for the rulings. 12 by the court s delay in deciding the second extension motion, 13 the prejudice is entirely the result of its lack of familiarity 14 with the January 17 order and the court s rules. 15 We deny the motion for reinstatement. While appellant claims to have been prejudiced It may well be that 16 the indifference to our scheduling orders and rules described 17 above alone would justify denial. 18 fact that the motion for reinstatement does not append to it 19 appellant s proposed brief or an appropriately detailed statement 20 demonstrating that the appeal is meritorious. 21 not even mention the merits of the appeal, an important factor in 22 determining whether reinstatement of an appeal is appropriate. 2 However, we also consider the Indeed, it does The caveat regarding dismissal for failure to comply not only is included in our local rules, but it is also stated -- in boldface type -- on our website. See United States Court of Appeals for the Second Circuit, Clerk s Office, http://www.ca2.uscourts.gov/clerk/forms_and_instructions/How_to_appeal/Civil_c ase/Briefing_schedule.htm (last visited Mar. 25, 2013). 8 1 See, e.g., Lattanzio v. Comm n on Massage Therapy Accreditation, 2 481 F.3d 137, 139 (2d Cir. 2007) (per curiam) (denying the motion 3 for reinstatement because the underlying claims were meritless). 4 From the District Court s thorough opinion, it appears that the 5 appeal is entirely without merit. 6 We note that the appellee has consented to the 7 reinstatement. 8 in favor of granting the motion, we deem it outweighed by the 9 court s institutional concerns over handling its docket and 10 While this is certainly a factor to be considered requiring adherence to its rules. 11 12 13 CONCLUSION For the reasons set forth above, the motion to reinstate the appeal is denied. 9