the date of entry of the order granting the motion, whichever is later, but [a court] may not extend it further." Endicott Johnson Corp. v. Liberty Mutual Ins. Co., 116 F.3d 53, 56 (2d Cir. 1997). The court thus reasoned that in this case no extension to appeal was permitted beyond December 30, 1996. As such, the court dismissed both appeals for lack of appellate jurisdiction.
Liberty now moves this Court to vacate the October 30, 1996 judgment of this Court and reenter that judgment to permit Liberty to pursue an appeal.
As an initial matter, Endicott argues that the Second Circuit's determination that the doctrine of "unique circumstances" does not apply to this case forecloses decision on Endicott's Rule 60(b) motion. However, Liberty's Rule 60(b) motion presents a different question, which is governed by a different standard, then that considered by the Second Circuit. Therefore, the doctrine of law of the case does not compel that Endicott's motion be denied.
By its terms, Rule 60(b) permits the court to relieve a party from a final judgment because of (1) "mistake, inadvertence, surprise or excusable neglect"; or (2) "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(1),(6). In the instant case, Liberty argues that the erroneous interpretation of Fed. R. App. P. 4(a) by both the parties and the Court provides a basis for vacating the prior judgment of this Court and reentering that judgment to permit an appeal. This Court disagrees.
It is firmly established that ignorance of the law is not the type of "mistake, inadvertence, surprise or excusable neglect" contemplated by Rule 60(b)(1). See, e.g., Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). Here, Endicott and Liberty made several motions requesting time extensions to file an appeal, which the Court had no power to grant. Thus, Liberty shares responsibility for the erroneous interpretation of Fed. R. App. P. 4(a), and accordingly, Liberty's motion under Rule 60(b)(1) must be denied.
Second, Rule 60(b)(1) and 60(b)(6) are mutually exclusive, and thus ordinarily a claim that falls under an enumerated ground for relief under 60(b)(1) cannot form a basis for relief under 60(b)(6). See, e.g., United States v. Cirami, 535 F.2d 736, 740 (2d Cir. 1976). Assuming arguendo that Liberty's claim does not fall within the bounds of Rule 60 (b)(1), this case does not present, as Rule 60(b)(6) requires, "extraordinary circumstances." See, e.g., Klapprott v. United States, 335 U.S. 601, 614-615, 93 L. Ed. 266, 69 S. Ct. 384 (1949). In contrast to this case, "extraordinary circumstances" have been found where the losing party fails to receive notice of the judgment in time to file an appeal. See, e.g., Felshina v. Schweiker, 707 F.2d 71, 72 (2d Cir. 1983) (holding that a district court may vacate judgment and reenter judgment when losing party fails to receive notice of entry of judgment). Felshina and other so-called "failure of notice" cases are inapposite to this case. Here, Liberty chose not to file a notice of appeal based upon its shared misunderstanding of the law. Consequently, Liberty's motion also is denied under Rule 60(b)(6).
For the reasons stated above, Liberty's motion is DENIED.
IT IS ORDERED.
Dated November 28, 1997
at Binghamton New York
Thomas J. McAvoy
Chief U.S. District Judge
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