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Mallery v. NBC Universal

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 21, 2008

CLIFTON MALLERY A/K/A ENJAI OMAA EELE AND AMNAU KARAM EELE, PLAINTIFFS,
v.
NBC UNIVERSAL, INC., NBC UNIVERSAL TELEVISION STUDIO, TAILWIND PRODUCTIONS, TIM KRING, DENNIS HAMMER, ALLAN ARKUSH, JEPH LOEB AND BRYAN FULLER, DEFENDANTS.

The opinion of the court was delivered by: Denise Cote, District Judge

MEMORANDUM OPINION AND ORDER

On December 4, 2007, an Opinion and Order was entered on the docket in this action granting summary judgment for the defendants in this copyright action. Following several failed attempts to electronically file a notice of appeal from this Opinion and Order, plaintiffs moved on February 5, 2008, pursuant to Rule 4(a)(5), Fed. R. App. P., for an extension of time to file their notice of appeal. Defendants have filed opposition. For the reasons stated below, plaintiffs' motion is denied as moot, as the notice of appeal filed by plaintiffs on February 5, 2008, in connection with their motion is timely and no extension of time under Rule 4(a)(5) is required.

Following the entry of the December 4, 2007, Opinion and Order on the docket, judgment was not set forth on a separate document as required by Rule 58, Fed. R. Civ. P. Thus, pursuant to Rule 4(a)(7)(A)(ii), Fed. R. App. P., judgment has not yet been "entered" within the meaning of Rule 4(a)(1)(A). As a result, the 30-day time limitation provided by Rule 4(a)(1)(A) has not yet begun to run, and will not begin to run until the earlier of (1) the setting forth of the judgment on a separate document as required by Rule 58, Fed. R. Civ. P., or (2) 150 days from the entry of the December 4, 2007, Opinion and Order. The plaintiffs' notice of appeal filed on February 4, 2008, is therefore timely as filed under Rule 4, Fed. R. App. P.*fn1

CONCLUSION

Plaintiffs' February 5, 2008, motion for an extension of time to file a notice of appeal is denied as moot, and the notice of appeal filed on February 5, 2008, is deemed timely. The Clerk of Court is directed to enter judgment in favor of the defendants pursuant to this Court's Opinion and Order of December 4, 2007.

SO ORDERED:


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