United States District Court, S.D. New York
December 28, 2005.
PAUL DEXTER, Plaintiff,
DEPOSITORY TRUST AND CLEARING CORP., et al., Defendants.
The opinion of the court was delivered by: GERARD LYNCH, District Judge
OPINION AND ORDER
Plaintiff Paul Dexter charged the National Association of
Securities Dealers ("NASD") with negligence and violations of
section 6(b) of the Securities Exchange Act of 1934, and the
Depository Trust and Clearing Corporation ("DTC"), and Cede &
Company ("Cede") with negligence and conversion, in connection
with a distribution of proceeds from a Litigation Trust.
Defendants moved to dismiss, principally on the ground that they
were immune from suit, and in an Opinion and Order dated
September 21, 2005, those motions were granted. The case was
closed and judgment for defendants was entered on September 23.
Plaintiff did not file a notice of appeal within thirty days as
required by Fed.R.App.P. 4(a)(1)(A). Instead, on November 1,
2005, a week after the time to file a notice of appeal lapsed,
plaintiff filed a motion to extend his time to file a notice of
appeal, arguing that plaintiff's counsel did not receive notice
of the entry of the judgment, that he only discovered on October
28, 2005 that the judgment had been entered, and that late filing
of a notice of appeal should thus be permitted pursuant to Rules
4(a)(5)(A) and 4(a)(6). For the following reasons, that motion
will be granted. The thirty-day time limit set forth in Rule 4(a)(1)(A) for
filing a notice of appeal is mandatory and jurisdictional, Cohen
v. Empire Blue Cross & Blue Shield, 176 F.3d 35, 40 (2d Cir.
1999), but can be extended in certain instances. Under Rule
4(a)(5)(A), the district court may reopen the time for filing a
notice of appeal where, inter alia, the moving party "shows
excusable neglect or good cause" for the failure to file a timely
notice of appeal. In this case, plaintiff contends that he
qualifies for relief under either of these standards because the
failure to file a timely notice of appeal was due to non-receipt
of notice from the Clerk's Office of the entry of either the
September 21 Opinion and Order or the judgment. Assuming arguendo
that plaintiff did not receive such notice (and that such notice
was never sent), that is an insufficient basis for a finding of
either "excusable neglect" or "good cause." First, because
"parties have an obligation to monitor the docket sheet to inform
themselves of the entry of orders they wish to appeal," United
States ex rel. McAllan v. City of New York, 248 F.3d 48, 53 (2d
Cir. 2001), "good cause," which is reserved for those "situations
in which there is no fault excusable or otherwise," is
inapplicable. Fed.R.App.P. 4 advisory committee's note (2002).
For essentially the same reason, "the mere failure to discover
that . . . judgment ha[s] been entered, even when the clerk ha[s]
failed to mail a notice of judgment as directed by
Fed.R.Civ.P. 77(d), does not constitute excusable neglect." Avolio v.
County of Suffolk, 29 F.3d 50, 52 (2d Cir. 1994).
However, even if plaintiff cannot show either "excusable
neglect" or "good cause," the instant motion may be granted under
Rule 4(a)(6) if plaintiff can establish:
(1) that he was entitled to notice of the entry of
the judgment; (2) that he did not receive such notice
from the clerk or any party within 21 days of its
entry; (3) that no party would be prejudiced by the
extension; and (4) that he moved within 180 days of
entry of the judgment or within 7 days of his receipt
of such notice, whichever is earlier. Avolio, 29 F.3d at 52. Here, the sole issue is
whether plaintiff "did not receive [notice of the
entry of the judgment] from the clerk or any other
party within 21 days of its entry." There is no
argument that plaintiff was not entitled to notice of
entry of the judgment; the motion to extend time was
itself timely filed; and defendants claim, and the
Court can detect, no prejudice from the week-long
delay between the expiration of time to file a notice
of appeal and the filing of this motion. Cf.
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355,
366-67 (2d Cir. 2003) (observing, in the Rule 4(a)(5)
context, that "the prejudice to the non-movant will
often be negligible" where a motion to extend time is
"filed within thirty days of the last day for filing
a timely notice of appeal" (quotation omitted)).
Plaintiff's counsel declares that he did not receive e-mail or
mail notification from the Court or any party of the entry of the
September 21 Opinion and Order or the judgment. (Decl. Lee
Squiteri ¶ 3.) As an initial matter, it is undisputed that
defendants did not send notice of the entry of these documents to
plaintiff. As for e-mail notification from the Clerk's Office,
the docket sheet reflects that such notification was sent only to
defendants' counsel. (Docket Sheet Receipts, Entries 33-34.) The
reason for this is that plaintiff's counsel filed this action
using the name "Lee Squiteri" and not "Olimpio Lee Squiteri,"
which is name for plaintiff's counsel on file with the Clerk's
Office for electronic notification purposes, and the only name
for which that office has an e-mail address.*fn1
for the purposes of a Rule 4(a)(6) motion, it does not matter why
or how plaintiff's counsel failed to receive e-mail notification
of the entry of the judgment, and specifically whether it was
plaintiff's counsel's fault that he did not receive such
notification. Avolio, 29 F.3d at 54 (holding that denial of
Rule 4(a)(6) relief may not be premised on movant's "inexcusable neglect"). Finally, while the
docket sheet indicates that mail notification was to be sent to
plaintiff's counsel, the Clerk's Office informs the Court that
such notification was ultimately not sent. Therefore, the Court
finds that plaintiff "did not receive [notice of the entry of the
judgment] from the clerk or any other party within 21 days of its
entry." Because all of the conditions for relief under Rule
4(a)(6) are satisfied, plaintiff's motion to extend time is
For the reasons stated above, plaintiff's motion to extend the
time to file a notice of appeal is granted. The extended period
to file a notice of appeal shall expire 14 days after the date
when this Order is entered.
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