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
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
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
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
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 ...