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ENDICOTT JOHNSON CORP. v. LIBERTY MUT. INS. CO.

November 28, 1997

ENDICOTT JOHNSON CORPORATION, Plaintiff, against LIBERTY MUTUAL INSURANCE COMPANY, Defendant.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 A. Introduction

 Presently before the Court is a motion by defendant Liberty Mutual Life Insurance Company ("Liberty"), pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, to vacate this Court's final judgment of October 30, 1996, and reenter that judgment to permit Liberty to pursue an appeal. According to Liberty, Rule 60(b) provides the Court with broad discretion to grant the relief requested to prevent injustice.

 Plaintiff Endicott Johnson Corporation ("Endicott"), in turn, argues that (1) the doctrine of law of the case requires rejection of Liberty's motion; and (2) Liberty has not demonstrated the presence of exceptional circumstances to permit the relief Liberty seeks under Rule 60(b).

 For the reasons that follow, Liberty's motion is DENIED.

 B. Facts and Procedural History

 This case arose when Endicott instituted a declaratory action to determine the coverage provided by certain insurance policies issued by Liberty. This Court granted summary judgment to Endicott, and the final judgment was entered on October 30, 1996. Under Fed. R. App. P. 4(a), the parties had 30 days from October 30, 1996 to file a notice of appeal, i.e., until November 29, 1996.

 On November 29, 1996, Liberty moved, pursuant to Fed. R. App. P. 4(a)(5), for a 30-day extension to file an appeal. On that same day, this Court granted Liberty's request to extend the time to appeal until December 30, 1996. However, no notice of appeal was ever filed by December 30, 1996.

 Instead, on December 23, 1996, the parties submitted a joint motion to extend the time to appeal until January 15, 1997. According to the sides, an extension of the time to file an appeal was necessary because the parties were attempting to settle the matter. This Court granted the motion.

 In similar fashion, the sides moved for and were granted two additional extensions, which extended the time to file an appeal until February 28, 1997. The parties, however, never reached a settlement.

 Liberty and Endicott each respectively filed a notice of appeal on February 27, 1997 and March 7, 1997. Thereafter, Endicott moved to dismiss the appeal of Liberty for lack of appellate jurisdiction. The Second Circuit held that Fed. R. App. P. 4(a)(5) permits a district court, "on a showing of good cause or excusable neglect, [to] extend the 30-day appeal period for up to 30 days from the original deadline or until 10 days after 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 ...


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