UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
April 20, 1979
GLORIA HEWLETT GLOVER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT.
GENERAL MOTORS ACCEPTANCE CORPORATION, INC., GENERAL MOTORS CORPORATION, INC., LESLIE J. BLAHA, JOHN L. LOFFREDO, VIRGIL D. SMITH, BERNARD M. PLAUT, ALLEN S. BRUSH, JOHN ZIMMERMAN, CALVERT THOMAS, AND EUGENE HARTWIG, JOINTLY AND SEVERALLY, DEFENDANTS-APPELLEES .
Appeal from the United States District Court for the Southern District of New York.
Present: HONORABLE IRVING R. KAUFMAN, Chief Judge.
HONORABLE J. JOSEPH SMITH, Circuit Judge.
HONORABLE RICHARD OWEN, District Judge, sitting by designation.
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel for the appellees and by appellant pro se.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the appeal from a judgment and order of said District Court be and it hereby is affirmed in part and dismissed in part.
1. The final judgment dismissing this action under Rule 41(b) for failure to prosecute was entered on January 9, 1978, and the notice of appeal was not filed until May 11, 1978. Accordingly, to the extent that Ms. Glover has attempted to appeal from the January 9 final judgment, the appeal is untimely and must be dismissed. See Federal Rules of Appellate Procedure 4(a); Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53, 56 (2d Cir.) (per curiam), cert. denied, 429 U.S. 862 (1976); Guido v. Ball, 367 F.2d 882 (2d Cir. 1966) (per curiam).
2. We do, however, have jurisdiction over Judge Griesa's denial of relief under Rule 60(b), for the order denying relief was signed April 11, 1978, and a notice of appeal was timely filed on May 11. That the April 11 order was not entered on the docket sheet until August 11 is of little moment. Judge Griesa's decision was clearly final on April 11, and appellees have not suffered prejudice by the technically premature notice of appeal. See In re Grand Jury, 541 F.2d 373, 376-77 (3d Cir. 1976); cf. Foman v. Davis, 371 U.S. 178, 181 (1962).
3. Dismissals under Rule 41(b) for failure to prosecute and motions to vacate under Rule 60(b) are both committed to the sound discretion of the district court, and they will not be reversed absent abuse of that discretion. See, e.g., Dominguez v. United States, 583 F.2d 615 (2d Cir. 1978) (per curiam), cert. denied, 47 U.S.L.W. 3483 (Jan. 15, 1979) (No. 78-934); Redac Project 6426, Inc. v. Allstate Insurance Co., 412 F.2d 1043 (2d Cir. 1969); 5 Moore's Federal Practice P41.11, at 41-152 to -156 (2d ed. 1977).
4. Under the circumstances of this case, we cannot say that Judge Griesa abused his discretion in finding that Ms. Glover's conduct did not constitute "excusable neglect" within the meaning of Rule 60(b)(1). Appellant has a law degree, yet she did not inform the court of her address between April 1977 and March 1978, nor did she make arrangements for her mail to be forwarded to her in Washington. Judge Griesa's finding that Ms. Glover's failure to receive notice of the December 16 and January 6 pretrial conferences was due to her own conduct is not clearly erroneous, see Federal Rules of Civil Procedure 52(a), and it supports his denial of relief under Rule 60(b)(1).
5. Moreover, Judge Griesa properly denied relief under Rule 60(b)(6), for it is well settled that subdivision (6) of the Rule may not be used to evade the rigors of subdivisions (1), (2), and (3). See Klapprott v. United States, 335 U.S. 601 (1949); 7 Moore's Federal Practice P60.27, at 343-46 (2d ed. 1971). In any event, appellant has not shown sufficient circumstances to justify relief under Rule 60(b)(6).
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