RLI Insurance Company v. JDJ Marine, Incorporated

Filing

PER CURIAM NON- DISPOSITIVE OPINION, FILED.[933455] [12-3871]

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12-3871-cv
RLI Insurance Co. v. JDJ Marine, Inc.

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UNITED STATES COURT OF APPEALS

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FOR THE SECOND CIRCUIT

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August Term, 2012

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(Submitted: March 8, 2013

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Docket No.

Decided: May 10, 2013)
12-3871-cv

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RLI Insurance Co.,
Plaintiff-Counter-Defendant-Appellee,

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v.
JDJ Marine, Inc.,
Movant-Defendant-Counter-Claimant-Appellant,
Commerce Bank, N.A.,
Intervenor.
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B e f o r e:

NEWMAN, WINTER, and CABRANES, Circuit Judges.

Motion to reinstate an appeal after a dismissal based on a

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failure to file a brief in compliance with a scheduling order.

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The motion is denied.

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John F. Karpousis, Freehill, Hogan & Mahar,
LLP, New York, New York, for MovantDefendant-Counter-Claimant-Appellant.

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PER CURIAM:
Appellant JDJ Marine, Inc., moves to reinstate an appeal

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dismissed after its failure to comply with this court’s second

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scheduling order for filing a brief.

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The motion is denied.

BACKGROUND
On September 28, 2012, appellant filed its notice of appeal.

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It filed a scheduling letter on November 13, 2012 pursuant to

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Local Rule 31.2(a)(1)1 selecting a date of January 15, 2013 on

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which its opening brief and appendix would be due.

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The court so-

ordered the deadline.
On January 10, 2013, five days before the brief was due,

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appellant filed a motion for an extension of time.

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accompanying the motion, appellant stated that counsel had been

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unable to complete the brief because his offices were

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significantly affected by the October 28, 2012 storm Hurricane

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Sandy.

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(Jan. 10, 2013).

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In the papers

Aff. in Supp. of Mot. for Extension to File Br. at 1-2

On January 17, 2013, we granted the motion for an extension

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giving counsel an additional month and one-half, as requested, to

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file a brief.

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normally granted but was believed by the court to be justified by

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the storm.

This extension was considerably longer than those

However, the order stated,

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Local 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,
2013 unless a brief is filed by that date. A
motion for reconsideration or other relief
will not stay the effectiveness of this order.
RLI Ins. Co. v. JDJ Marine, Inc., No. 12-3871 (2d Cir. Jan. 17,
2013).
On February 26, 2013, three days before the extended due

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date, appellant moved for another extension, this time for thirty

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days.

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other cases, out-of-state business travel, and responsibilities

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as a mediator precluded him from submitting the brief by the due

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date.

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(Feb. 26, 2013).

Counsel’s supporting affidavit stated that preparation for

Aff. in Supp. of Mot. for Extension to File Br. at 1-2

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Because this court’s order of January 17, 2013, directed

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that the appeal “is dismissed effective March 1 unless a brief is

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filed by that date” and that “a motion for reconsideration or

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other relief will not stay the effectiveness of this order,” the

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second motion for an extension, decided on March 8, 2013, was

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denied as moot in light of the dismissal of the appeal.

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On March 8, 2013, appellant filed the present motion to

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reinstate the appeal.

In the accompanying affidavit, counsel

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stated that he was “prejudiced” because, rather than “decide [his

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motion] on a timely basis,” this court left the motion “open and

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undecided . . . seven . . . full days after the filing deadline.”

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Aff. in Supp. of Mot. to Reinstate at 2 ¶¶ 5-6.

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again in the affidavit the press of other business as the reason

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for the failure to file a brief.
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Counsel outlined

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DISCUSSION
A brief discussion is necessary to understand our decision

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to deny the motion.

About ten years ago, the court faced a

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caseload crisis.

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calendared for argument was at an historic low, so low that

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calendars sometimes could not be filled.

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of a diminished caseload; in fact, pending cases numbered in the

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thousands above historic levels because of a huge influx of

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immigration matters.

The number of cases briefed and ready to be

This was not the result

See, e.g., Comm. on Federal Courts, The

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Ass’n of the Bar of the City of N.Y., The Surge of Immigration

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Appeals and Its Impact on the Second Circuit Court of Appeals

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(2004), available at

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http://www.nycbar.org/pdf/report/AppealSurgeReport.pdf.

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The problem of so few cases ready for argument was

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determined to be the result of a culture in which the bar had

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come to believe that the 40- (for appellant) and 30- (for

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appellee) day time periods set out in Federal Rule of Appellate

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Procedure 31(a)(1) were meaningless and that motions for

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extensions of time, usually for 30 days, to file briefs would be

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routinely granted time after time.

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of the fact that the orders granting the extensions would just as

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routinely state, in boldface type no less, that only

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“EXTRAORDINARY CIRCUMSTANCES” would justify another extension.

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The cause of the failure of the “EXTRAORDINARY CIRCUMSTANCES”

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warnings was that the Clerk’s Office, which ruled on the motions,

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was reluctant to resort to coercive measures -– and was so
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This belief existed in spite

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perceived by the bar.

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for extensions would be sent to a judge for decision and that,

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with warnings appropriate to the particular case, coercive

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measures, including dismissal, would be used when the warnings

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failed to produce a brief.

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It was, therefore, decided that motions

Altering a culture in which much of the bar had come to

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believe that briefing schedules were issued only to be

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automatically extended until convenient for counsel to file a

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brief was difficult.

After the new system of judge-decided

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motions was in place for several years, the number of cases ready

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for calendaring had increased, but problems remained.

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particular, the Clerk’s Office often had to process, and the

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extensions judge had to decide, 50-75 extension motions per week.

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Experiments were undertaken with some attorneys who had

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numerous appeals pending before the court and were filing equally

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numerous motions for extensions of time.

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attorneys were asked to propose a schedule for filing the briefs

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in all pending cases the attorney had before the court on the

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understanding that the schedule would be met without further

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extension motions.

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present method of allowing all parties to appeals and petitions

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for review to select a filing date within a 91-day period after

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the ready date, see supra Note 1, or in the case of appellees,

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after the appellant’s brief is filed.

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considerably longer than that allowed by Federal Rule of

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Appellate Procedure 31(a)(1).

In

In particular, some

The success of this experiment led to the

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Our 91-day period is

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However, allowing counsel to choose a date within such an

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extended period of time has a consequence:

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to comply with the date chosen and extensions of time are granted

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grudgingly and only for brief periods of time.

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27.1(f).

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counsel is expected

See 2d Cir. R.

Moreover, for appellants in civil actions, the extension is

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often granted with a provision for automatic dismissal of the

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appeal if the appellant’s brief was not filed by the extended

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date.

See 2d Cir. R. 31.2(d) (“The Court may dismiss an appeal

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. . . for failure to timely file a brief or to meet a deadline

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. . . .”).

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accompanied by a warning to counsel that further motions will not

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stay the effectiveness of the order.

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simply restates a rule of this court that a motion for an

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extension of time to file a brief does not stay the effectiveness

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of the scheduling order already in force.

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27.1(f)(1).

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When entered, the automatic dismissal provision is

This particular warning

See 2d Cir. R.

When appellees seek extensions, dismissal of the appeal is

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inappropriate for the obvious reason that a dismissal would

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benefit the appellee, and an order is often entered that provides

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for treating the case as ready for calendaring on the extension

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date whether or not appellee’s brief is filed.

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In the present matter, appellant has demonstrated a

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persistent indifference to the court’s scheduling orders and

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local rules.

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inadequate because the press of other business is not an

First, the motion for a second extension was

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“extraordinary circumstance” justifying an extension under our

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rules, especially given the liberal policy of allowing lawyers to

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establish their own dates for filing briefs within 91 days of the

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ready date.

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circumstance, such as serious personal illness or death in

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counsel’s immediate family, the court will not grant a motion to

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extend the time to file a brief.”).

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See 2d Cir. R. 27.1(f)(1) (“Absent an extraordinary

Moreover, appellant violated a local rule by waiting until
the last minute to file both extension motions.

2d Cir. R.

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27.1(f)(3) (“A party seeking to extend the time to file a brief

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must move as soon as practicable after the extraordinary

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circumstance arises.”).

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extension was filed just five days before the filing date

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selected by counsel.

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occurred months before the brief’s due date and even before

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counsel selected that date.

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was granted.

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days before the date on which the brief was due but relied upon

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grounds –- trials and mediation –- known for some time, perhaps

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even before the first extension motion was filed.

Appellant’s first motion for an

Still, it relied on events that had

Nevertheless, a six-week extension

The second motion for an extension was filed three

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Appellant was, therefore, afforded ample time, and

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considerable choice in selecting dates, in which to file its

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brief and appendix and given an explicit warning of the

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consequences of failing to meet the extended deadline.

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granting the first motion extended the time for filing well

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beyond the 91-day period and plainly stated that the appeal “is
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The order

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dismissed effective March 1” unless a brief was filed by that

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date.

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would not stay the effectiveness of the dismissal order.

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notice simply reflected our rules that a “deadline for a brief

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remains in effect unless the court orders otherwise,” 2d Cir. R.

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27.1(f)(1), and “[t]he court may dismiss an appeal . . . for

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failure to timely file a brief or to meet a deadline.”

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R. 31.2(d).2

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docket and to prevent counsel from triggering “automatic”

It stated, further, that a filing of a subsequent motion
This

2d Cir.

The purpose of these rules is to maintain an orderly

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extensions simply by filing motions for extensions and waiting

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for the rulings.

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by the court’s “delay” in deciding the second extension motion,

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the prejudice is entirely the result of its lack of familiarity

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with the January 17 order and the court’s rules.

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We deny the motion for reinstatement.

While appellant claims to have been prejudiced

It may well be that

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the indifference to our scheduling orders and rules described

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above alone would justify denial.

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fact that the motion for reinstatement does not append to it

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appellant’s proposed brief or an appropriately detailed statement

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demonstrating that the appeal is meritorious.

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not even mention the merits of the appeal, an important factor in

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determining whether reinstatement of an appeal is appropriate.

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However, we also consider the

Indeed, it does

The 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,

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481 F.3d 137, 139 (2d Cir. 2007) (per curiam) (denying the motion

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for reinstatement because the underlying claims were meritless).

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From the District Court’s thorough opinion, it appears that the

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appeal is entirely without merit.

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We note that the appellee has consented to the

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reinstatement.

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in favor of granting the motion, we deem it outweighed by the

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court’s institutional concerns over handling its docket and

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While this is certainly a factor to be considered

requiring adherence to its rules.

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CONCLUSION
For the reasons set forth above, the motion to reinstate the
appeal is denied.

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