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
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 motion under Fed.R.Civ.P. 60 (b), not one under Rule
59(e)."); accord Association for Retarded Citizens of Connecticut,
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:
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
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
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
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
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).
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
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, . .
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.
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.