RLI Insurance Co. v. JDJ Marine, Inc.

12-3871-cv
RLI Insurance Co. v. JDJ Marine, Inc.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2012 3
(Submitted: March 8, 2013 Decided: May 10, 2013) 4
Docket No. 12-3871-cv 5
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RLI Insurance Co., 8 Plaintiff-Counter-Defendant-Appellee, 9
v. 10
JDJ Marine, Inc., 11 Movant-Defendant-Counter-Claimant-Appellant, 12
13 Commerce Bank, N.A., 14 Intervenor. 15
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B e f o r e: NEWMAN, WINTER, and CABRANES, Circuit Judges. 19
Motion to reinstate an appeal after a dismissal based on a 20
failure to file a brief in compliance with a scheduling order. 21
The motion is denied. 22
23
24 John F. Karpousis, Freehill, Hogan & Mahar, 25 LLP, New York, New York, for Movant- 26 Defendant-Counter-Claimant-Appellant. 27
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PER CURIAM: 1
Appellant JDJ Marine, Inc., moves to reinstate an appeal 2
dismissed after its failure to comply with this court’s second 3
scheduling order for filing a brief. The motion is denied. 4
BACKGROUND 5
On September 28, 2012, appellant filed its notice of appeal. 6
It filed a scheduling letter on November 13, 2012 pursuant to 7
Local Rule 31.2(a)(1) 1 selecting a date of January 15, 2013 on 8
which its opening brief and appendix would be due. The court so- 9
ordered the deadline. 10
On January 10, 2013, five days before the brief was due, 11
appellant filed a motion for an extension of time. In the papers 12
accompanying the motion, appellant stated that counsel had been 13
unable to complete the brief because his offices were 14
significantly affected by the October 28, 2012 storm Hurricane 15
Sandy. Aff. in Supp. of Mot. for Extension to File Br. at 1-2 16
(Jan. 10, 2013). 17
On January 17, 2013, we granted the motion for an extension 18
giving counsel an additional month and one-half, as requested, to 19
file a brief. This extension was considerably longer than those 20
normally granted but was believed by the court to be justified by 21
the storm. However, the order stated, 22
1Local Rule 31.2(a) establishes the court’s brief scheduling procedure.
Under this rule, parties set their own deadlines within a period of 91 days of
the applicable “ready date” –- typically, for appellants, the date on which
the last transcript is received, and, for appellees, the date on which an
appellant’s brief is filed.
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[T]he appeal is dismissed effective March 1, 1 2013 unless a brief is filed by that date. A 2 motion for reconsideration or other relief 3 will not stay the effectiveness of this order. 4
5
6 RLI Ins. Co. v. JDJ Marine, Inc., No. 12-3871 (2d Cir. Jan. 17, 7
8 2013). 9
10 On February 26, 2013, three days before the extended due 11
date, appellant moved for another extension, this time for thirty 12
days. Counsel’s supporting affidavit stated that preparation for 13
other cases, out-of-state business travel, and responsibilities 14
as a mediator precluded him from submitting the brief by the due 15
date. Aff. in Supp. of Mot. for Extension to File Br. at 1-2 16
(Feb. 26, 2013). 17
Because this court’s order of January 17, 2013, directed 18
that the appeal “is dismissed effective March 1 unless a brief is 19
filed by that date” and that “a motion for reconsideration or 20
other relief will not stay the effectiveness of this order,” the 21
second motion for an extension, decided on March 8, 2013, was 22
denied as moot in light of the dismissal of the appeal. 23
On March 8, 2013, appellant filed the present motion to 24
reinstate the appeal. In the accompanying affidavit, counsel 25
stated that he was “prejudiced” because, rather than “decide [his 26
motion] on a timely basis,” this court left the motion “open and 27
undecided . . . seven . . . full days after the filing deadline.” 28
Aff. in Supp. of Mot. to Reinstate at 2 ¶¶ 5-6. Counsel outlined 29
again in the affidavit the press of other business as the reason 30
for the failure to file a brief. 31
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DISCUSSION 1
A brief discussion is necessary to understand our decision 2
to deny the motion. About ten years ago, the court faced a 3
caseload crisis. The number of cases briefed and ready to be 4
calendared for argument was at an historic low, so low that 5
calendars sometimes could not be filled. This was not the result 6
of a diminished caseload; in fact, pending cases numbered in the 7
thousands above historic levels because of a huge influx of 8
immigration matters. See, e.g., Comm. on Federal Courts, The 9
Ass’n of the Bar of the City of N.Y., The Surge of Immigration 10
Appeals and Its Impact on the Second Circuit Court of Appeals 11
(2004), available at 12
http://www.nycbar.org/pdf/report/AppealSurgeReport.pdf. 13
The problem of so few cases ready for argument was 14
determined to be the result of a culture in which the bar had 15
come to believe that the 40- (for appellant) and 30- (for 16
appellee) day time periods set out in Federal Rule of Appellate 17
Procedure 31(a)(1) were meaningless and that motions for 18
extensions of time, usually for 30 days, to file briefs would be 19
routinely granted time after time. This belief existed in spite 20
of the fact that the orders granting the extensions would just as 21
routinely state, in boldface type no less, that only 22
“EXTRAORDINARY CIRCUMSTANCES” would justify another extension. 23
The cause of the failure of the “EXTRAORDINARY CIRCUMSTANCES” 24
warnings was that the Clerk’s Office, which ruled on the motions, 25
was reluctant to resort to coercive measures -– and was so 26
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perceived by the bar. It was, therefore, decided that motions 1
for extensions would be sent to a judge for decision and that, 2
with warnings appropriate to the particular case, coercive 3
measures, including dismissal, would be used when the warnings 4
failed to produce a brief. 5
Altering a culture in which much of the bar had come to 6
believe that briefing schedules were issued only to be 7
automatically extended until convenient for counsel to file a 8
brief was difficult. After the new system of judge-decided 9
motions was in place for several years, the number of cases ready 10
for calendaring had increased, but problems remained. In 11
particular, the Clerk’s Office often had to process, and the 12
extensions judge had to decide, 50-75 extension motions per week. 13
Experiments were undertaken with some attorneys who had 14
numerous appeals pending before the court and were filing equally 15
numerous motions for extensions of time. In particular, some 16
attorneys were asked to propose a schedule for filing the briefs 17
in all pending cases the attorney had before the court on the 18
understanding that the schedule would be met without further 19
extension motions. The success of this experiment led to the 20
present method of allowing all parties to appeals and petitions 21
for review to select a filing date within a 91-day period after 22
the ready date, see supra Note 1, or in the case of appellees, 23
after the appellant’s brief is filed. Our 91-day period is 24
considerably longer than that allowed by Federal Rule of 25
Appellate Procedure 31(a)(1). 26
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However, allowing counsel to choose a date within such an 1
extended period of time has a consequence: counsel is expected 2
to comply with the date chosen and extensions of time are granted 3
grudgingly and only for brief periods of time. See 2d Cir. R. 4
27.1(f). 5
Moreover, for appellants in civil actions, the extension is 6
often granted with a provision for automatic dismissal of the 7
appeal if the appellant’s brief was not filed by the extended 8
date. See 2d Cir. R. 31.2(d) (“The Court may dismiss an appeal 9
. . . for failure to timely file a brief or to meet a deadline 10
. . . .”). When entered, the automatic dismissal provision is 11
accompanied by a warning to counsel that further motions will not 12
stay the effectiveness of the order. This particular warning 13
simply restates a rule of this court that a motion for an 14
extension of time to file a brief does not stay the effectiveness 15
of the scheduling order already in force. See 2d Cir. R. 16
27.1(f)(1). 17
When appellees seek extensions, dismissal of the appeal is 18
inappropriate for the obvious reason that a dismissal would 19
benefit the appellee, and an order is often entered that provides 20
for treating the case as ready for calendaring on the extension 21
date whether or not appellee’s brief is filed. 22
In the present matter, appellant has demonstrated a 23
persistent indifference to the court’s scheduling orders and 24
local rules. First, the motion for a second extension was 25
inadequate because the press of other business is not an 26
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“extraordinary circumstance” justifying an extension under our 1
rules, especially given the liberal policy of allowing lawyers to 2
establish their own dates for filing briefs within 91 days of the 3
ready date. See 2d Cir. R. 27.1(f)(1) (“Absent an extraordinary 4
circumstance, such as serious personal illness or death in 5
counsel’s immediate family, the court will not grant a motion to 6
extend the time to file a brief.”). 7
Moreover, appellant violated a local rule by waiting until 8
the last minute to file both extension motions. 2d Cir. R. 9
27.1(f)(3) (“A party seeking to extend the time to file a brief 10
must move as soon as practicable after the extraordinary 11
circumstance arises.”). Appellant’s first motion for an 12
extension was filed just five days before the filing date 13
selected by counsel. Still, it relied on events that had 14
occurred months before the brief’s due date and even before 15
counsel selected that date. Nevertheless, a six-week extension 16
was granted. The second motion for an extension was filed three 17
days before the date on which the brief was due but relied upon 18
grounds –- trials and mediation –- known for some time, perhaps 19
even before the first extension motion was filed. 20
Appellant was, therefore, afforded ample time, and 21
considerable choice in selecting dates, in which to file its 22
brief and appendix and given an explicit warning of the 23
consequences of failing to meet the extended deadline. The order 24
granting the first motion extended the time for filing well 25
beyond the 91-day period and plainly stated that the appeal “is 26
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dismissed effective March 1” unless a brief was filed by that 1
date. It stated, further, that a filing of a subsequent motion 2
would not stay the effectiveness of the dismissal order. This 3
notice simply reflected our rules that a “deadline for a brief 4
remains in effect unless the court orders otherwise,” 2d Cir. R. 5
27.1(f)(1), and “[t]he court may dismiss an appeal . . . for 6
failure to timely file a brief or to meet a deadline.” 2d Cir. 7
R. 31.2(d). 2 The purpose of these rules is to maintain an orderly 8
docket and to prevent counsel from triggering “automatic” 9
extensions simply by filing motions for extensions and waiting 10
for the rulings. While appellant claims to have been prejudiced 11
by the court’s “delay” in deciding the second extension motion, 12
the prejudice is entirely the result of its lack of familiarity 13
with the January 17 order and the court’s rules. 14
We deny the motion for reinstatement. It may well be that 15
the indifference to our scheduling orders and rules described 16
above alone would justify denial. However, we also consider the 17
fact that the motion for reinstatement does not append to it 18
appellant’s proposed brief or an appropriately detailed statement 19
demonstrating that the appeal is meritorious. Indeed, it does 20
not even mention the merits of the appeal, an important factor in 21
determining whether reinstatement of an appeal is appropriate. 22
2The caveat regarding dismissal for failure to comply not only is
included in our local rules, but it is also stated -- in boldface type -- on
our website. See United States Court of Appeals for the Second Circuit,
Clerk’s Office,
http://www.ca2.uscourts.gov/clerk/forms_and_instructions/How_to_appeal/Civil_c
ase/Briefing_schedule.htm (last visited Mar. 25, 2013).
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See, e.g., Lattanzio v. Comm’n on Massage Therapy Accreditation, 1
481 F.3d 137, 139 (2d Cir. 2007) (per curiam) (denying the motion 2
for reinstatement because the underlying claims were meritless). 3
From the District Court’s thorough opinion, it appears that the 4
appeal is entirely without merit. 5
We note that the appellee has consented to the 6
reinstatement. While this is certainly a factor to be considered 7
in favor of granting the motion, we deem it outweighed by the 8
court’s institutional concerns over handling its docket and 9
requiring adherence to its rules. 10
CONCLUSION 11
For the reasons set forth above, the motion to reinstate the 12
appeal is denied. 13
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