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United States District Court, S.D. New York

March 25, 2004.

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

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


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.


  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 motion under Fed.R.Civ.P. 60 (b), not one under Rule 59(e)."); accord Association for Retarded Citizens of Connecticut, Page 6 Inc., 68 F.3d at 553.*fn3

  Nor may Greenberg's motion be considered under Rule 60(a), as Rule 60(a) motions are available only "to correct a judgment `for the purpose of reflecting accurately a decision that the court actually made.'" Hodge, 269 F.3d at 158 (quoting Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995); see also Dudley v. Penn-America Ins. Co., 313 F.3d 662, 671 (2d Cir. 2002) (Sotomayor, J., concurring) ("A Rule 60(a) motion is directed to errors or omissions in the essentially ministerial act of transcribing the court's rendered judgment into writing . . ."). Greenberg has not alleged that the October Judgment inaccurately reflects Greenberg IV or that amendment of the October Judgment is required to correct any clerical error contained in the October Judgment, making it inappropriate to consider this motion one brought under Rule 60(a).

  Rule 60(b), the only remaining option, sets forth the grounds on which a court, in its discretion, may rescind or amend a final judgment. It provides, in pertinent part: Page 7


On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . ., (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . . or (6) any other reason justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b). What the recitation of these reasons "justifying relief from the operation of the judgment" makes clear is that Rule 60(b) pertains to efforts to revisit and revise the actual conclusions expressed and relief granted in a judgment. Greenberg, however, is not seeking to revise the substance of the October Judgment or to obtain relief from the substantive effect of that Judgment. Indeed, the amended judgment Greenberg proposes expressly adopts the reasons set forth in Greenberg IV as the basis for judgment being entered in favor of Chrust, just as the October Judgment does. What Greenberg is seeking to alter is not the substantive effect of the October Judgment but, it appears, the effective date of the judgment's entry.*fn4 Rule 60(b) does not seem Page 8 to be the appropriate vehicle for making such an amendment. Nonetheless, for the purposes of evaluating Greenberg's motion, it will be assumed that Rule 60(b) provides a proper basis for such a motion.

  II. Standard for a Rule 60(b) Motion

  The Second Circuit has instructed that Rule 60(b) provides "extraordinary judicial relief" which can be granted "only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also Employers Mut. Cas. Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996) ("A movant under Rule 60(b) must demonstrate `exceptional circumstances' justifying the extraordinary relief requested."). In evaluating a Rule 60(b) motion, the courts of this circuit also require that the evidence in support of the motion be highly convincing, that the movant show good cause for the failure to act sooner, and that no undue hardship be imposed on the other parties as a result. See, e.g., Kotlicky v. United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987); Williams v. New York City Dep't of Corrections, 219 F.R.D. 78, 84 (S.D.N.Y. 2003); Kellogg v. Strack, No. 96 Civ. 2118 (DLC), 2000 WL 565189, at *2 (S.D.N.Y. May 8, 2000). In light of Greenberg's allegations concerning the purportedly erroneous and seemingly unexpected entry of the October Judgment, this Court will Page 9 construe Greenberg's motion as if brought under Rule 60(b) (1),*fn5 which provides for relief from judgment in light of mistake, inadvertence, surprise, or excusable neglect.*fn6

  III. Greenberg Has Not Met His Burden Under Rule 60(b)

  Greenberg has not established the requisite exceptional circumstances that would permit him to prevail under Rule 60(b)(1), nor has he demonstrated good cause for failing to act sooner.

  The parties do not dispute that Greenberg IV directed the entry of judgment on notice. Nonetheless, neither party purports to have made any efforts to submit proposed forms of judgment reflecting the holding of Greenberg IV until at least January 2004*fn7. Although Greenberg IV contained no express direction as to the time period for the parties to submit forms of judgment, the Page 10 absence of any such direction should not be taken to suggest that the time period in which such forms may be submitted is limitless, nor does it excuse the parties' failure to do so during the weeks that followed the issuance of Greenberg IV. Delay of the sort exhibited here is not to be encouraged. Cf. Matteson v. United States, 240 F.2d 517, 519 (2d Cir. 1956) (" [I] n these days of unusual public interest in and criticism of the law's delays we can think of nothing more deserving of criticism than so bootless a delay as that of the two months here involved . . . while winning counsel are formally verbalizing a result already reached and announced.").*fn8

  In light of the parties' delay, the entry of the October Judgment some six weeks after the issuance of Greenberg IV — while contrary to the direction of that opinion and order that the parties enter judgment on notice — was eminently reasonable and is fully consonant with the tenor of Rule 58 of the Federal Rules of Civil Procedure, which urges the clerk and the court to enter judgments promptly. See Fed.R.Civ.P. 58 & Advisory Committee Notes; see also 11 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2786 (2d ed. 1995 & Supp. 2003). Therefore, the Page 11 entry of the October Judgment will not be deemed a mistake for purposes of Rule 60(b)(1), nor may any purported surprise occasioned by the October Judgment's entry be said to rise to the level of the exceptional circumstances required to grant a motion under Rule 60(b).*fn9

  Moreover, Greenberg's conduct provides no basis for granting the relief sought under Rule 60(b), as he has failed to show good cause for not acting sooner to amend the October Judgment.*fn10 Greenberg's sole argument for not having acted sooner appears to be that he was not aware of the October Judgment's entry. Parties, however, have "an obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal" or otherwise contest. United States ex rel. McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir. 2001) (citations omitted). This obligation may not be neglected simply because the parties are not expecting entry of an order or judgment at a certain time. See In re O.P.M. Leasing Svcs. Inc., 769 F.2d 911, 916 (2d Cir. 1985).

  In certain circumstances, as evidenced in the Second Page 12 Circuit's holding in Mennen Co. v. Gillette Co., a court may excuse a failure to monitor the docket where, as here, the district court has directed the parties to enter judgment on notice. See Mennen Co. v. Gillette Co., 719 F.2d 568 (2d Cir. 1983) (reversing district court's order denying plaintiff's motion for an extension of time to appeal under Fed.R.App.P. 4(a)(5)). In Mennen, a district court dismissed a lawsuit, directing the parties to submit judgment on notice. See id. at 569. The parties complied within three weeks of the issuance of the opinion, but subsequently learned that, despite the district court's direction, the court's clerk had already entered a judgment four days after issuance of the opinion in question, thereby beginning the plaintiff's 30-day appeals period. See id. The plaintiff appears only to have become aware of the "phantom judgment" entered by the clerk some two weeks after the 30-day appeals period had run. See id.

  Under these circumstances, the Second Circuit concluded that the record did not support "an inference of procrastination, ineptitude or dilatoriness" but instead reflected "good faith error by a party who was deceived by a chain of unfortunate events upon which it was entitled to, and did, rely." Id. at 571. This was so despite the fact that "it is customarily the duty of trial counsel to monitor the docket and to advise himself when the court enters an order against which he wishes to protest." Id. at 570 (citing MCA, Inc. v. Wilson, 425 F. Supp. 457, 459 (S.D.N.Y. 1977)). While a failure by trial counsel to do so is "indeed negligent, . . Page 13 where the omission occurs because the party has been misled by action of the court or its officers, such neglect may be excusable." Mennen, 719 F.2d at 570 (citations omitted).

  No such excuse is warranted here in evaluating Greenberg's failure to act sooner to amend the October Judgment. Greenberg (along with Chrust) failed to comply with the direction to enter judgment on notice set forth in Greenberg IV during the six weeks following its issuance. Greenberg also, by his own admission, only became aware of the existence of the October Judgment some twelve weeks following its entry on the public docket, suggesting that, were it not for the October Judgment, Greenberg would have let eighteen weeks elapse before even attempting to comply with the Court's direction in Greenberg IV.*fn11 These circumstances suggest that, far from showing good cause for his delay in moving to amend the October Judgment, Greenberg has displayed a marked disregard for both the Court's direction and the evolution of the docket. Page 14


  For the reasons set forth, Greenberg's motion is denied. The parties are directed to enter judgment on notice in reference to Greenberg V no later than April 7, 2004, whereupon this case will be closed.

  It is so ordered.

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