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GREENBERG v. CHRUST

March 25, 2004.

STEVEN A. GREENBERG, Plaintiff, -against- STEVEN CHRUST, Defendant


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

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 Page 3 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.*fn1

  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.*fn2 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 in Greenberg V and makes no mention of Greenberg IV or the October Judgment. Letter-briefs were exchanged between the parties and treated as a motion Page 4 which was marked fully submitted on February 25, 2004.

 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 Page 5 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 ...


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