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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