MIGUEL G. PEREZ, individually and on behalf of other persons similarly situated who were employed by AC Roosevelt Food Corp., d/b/a/ Champion Food Supermarket or any other entities affiliated with or controlled by AC Roosevelt Food Corp. and Antonio Collado, Plaintiff-Appellee,
AC ROOSEVELT FOOD CORPORATION, or any other entities affiliated with or controlled by AC Roosevelt Food Corp. doing business as Champion Food Supermarket, and ANTONIO COLLADO, Defendants-Appellants
Submitted October 17, 2013.
Amended: December 10, 2013.
Appeal from an order of the United States District Court for the Eastern District of New York (John Gleeson, Judge), granting a motion for attorneys' fees. We hold that the appeal is not timely.
ANDREW SQUIRE, Brooklyn, NY, for Appellants.
LADONNA M. LUSHER, Virginia & Ambinder, LLP, New York, NY, for Appellee.
Before: WINTER, JACOBS, STRAUB, Circuit Judges. JACOBS, Circuit Judge, dissenting.
Straub, Circuit Judge :
AC Roosevelt Food Corporation and Antonio Collado appeal from an August 13, 2012 order of the United States District Court for the Eastern District of New York (John Gleeson, Judge ), as memorialized in a January 7, 2013 judgment, granting Miguel Perez's motion for attorneys' fees. We hold that (1) a final order solely on the issue of attorneys' fees is appealable without entry of a separate document; and (2) a subsequent, identical judgment does not re-start the time to appeal. Because the entry of judgment did not restart the time to appeal, we DISMISS the appeal as untimely.
The facts of this c ase as relevant to this appeal are as follows. Perez commenced this action for overtime wages on October 20, 2010. Defendants initially failed to appear and default was entered on January 18, 2011. Perez sought certification as a class on February 22, 2011, which was granted on May 3, 2011, and notice published. Defendants appeared on October
31, 2011, and default was vacated. The class was voluntarily de-certified on February 9, 2012, and a settlement reached by June 1, 2012. On August 13, 2012, the District Court approved the settlement and resolved the only outstanding issue by granting Perez's motion for attorneys' fees in an order that stated, " [t]he Clerk of the Court is respectfully directed to close the case." The August 13 order, therefore, was the final order of the District Court, resolving all pending issues and ending the case. Defendants, however, failed to pay, and on November 8, 2012, Perez filed to reopen the case and have judgment entered. This motion was granted on November 19, 2012, and judgment entered on January 7, 2013. Defendants' notice of appeal was filed on February 6, 2013. In their appeal, Defendants challenge only the District Court's decision on Perez's motion for attorneys' fees.
Perez argues that Defendants' appeal is untimely under Federal Rule of Appellate Procedure 4. The time limit provided for by Rule 4 is " jurisdictional in civil cases." M.E.S., Inc. v. Snell, 712 F.3d 666, 668 (2d Cir. 2013); see Napoli v. Town of New Windsor, 600 F.3d 168, 170 (2d Cir. 2010) (" The timely filing of a notice of appeal in a civil case is a jurisdictional requirement." (internal quotation marks and brackets omitted)). " It is common ground that jurisdiction is a threshold matter that must exist before a court may decide the merits of an appeal." Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 146 (2d Cir. 2013).
" [W]e have consistently held that an order awarding attorneys' fees and costs is not an appealable final order until the amount of fees and costs has been set by the district court." Honeywell Int'l, Inc. v. Purolator Prods. Co., 468 F.3d 162, 164 (2d Cir. 2006); see O & G Indus., Inc. v. Nat'l R.R. Passenger Corp., 537 F.3d 153, 167 (2d Cir. 2008) (applying the same rule). In this ...