Koninklijke Ahold, N.V. v. Millbrook Commons, LLC et al

Filing 64

ORDER that: (1) Millbrook's 63 Motion to Extend Time for Filing Notice of Appeal is GRANTED as further set out in the order, and; (2) the deadline for filing a Notice of Appeal action is EXTENDED through and including 1/20/2012. Signed by Honorable Judge Mark E. Fuller on 12/18/2012. (dmn, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KONINKLIJKE AHOLD, N.V.,
Plaintiff/Counterclaim-Defendant,
v.
MILLBROOK COMMONS, LLC, et al.,
Defendants/CounterclaimPlaintiffs.

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CASE NO. 2:10-cv-1060-MEF
(WO – Do Not Publish)

ORDER
Before the Court is Defendant/Counterclaim Plaintiff Millbrook Commons’
(“Millbrook”) Motion to Extend Time for Filing Notice of Appeal. (Doc. #63.) Millbrook
moves this Court to enter an order declaring that, pursuant to Federal Rule of Appellate
Procedure 4(a)(4), Millbrook’s timely-filed Federal Rule of Civil Procedure 54(d)(2) Motion
for Reasonable Attorneys’ Fees and Costs of Litigation, or, in the Alternative, Motion to
Alter or Amend (Doc. #61) has the same effect on the deadline for filing a Notice of Appeal
as a motion made under Federal Rule of Civil Procedure 59 to alter or amend the judgment.
See Fed. R. App. P. 4(a)(4)(A)(iii) (providing that the time for filing an appeal begins to run
on the date the district court enters an order disposing of a Civil Rule 54 motion for
attorneys’ fees, if the district court extends the time to appeal under Civil Rule 58).
The Court entered final judgment in this case on November 20, 2012. (Doc. #60.)
Pursuant to Appellate Rule 4(a)(1)(A), the parties’ time for filing a notice of appeal is due
to expire on December 20, 2012. See Fed. R. App. P. 4(a)(1)(A) (providing that a notice of

appeal “must be filed with the district clerk within 30 days after entry of the judgment or
order appealed from.”).
On December 4, 2012, Millbrook timely filed a Rule 54(d)(2) motion seeking
reasonable attorneys’ fees and costs. (Doc. #61). The Court then ordered that Plaintiff
Koninklijke Ahold (“Ahold”) show cause as to why Millbrook’s Rule 54 motion should not
be granted, with a response deadline of December 21, 2012. (Show Cause Order, Doc. #62
at 1.)
Federal Rule of Civil Procedure 58(e) provides:
[I]f a timely motion for attorney’s fees is made under Rule 54(d)(2), the court
may act before a notice of appeal has been filed and become effective to order
that the motion have the same effect under Federal Rule of Appellate
Procedure 4(a)(4) as a timely motion under Rule 59.
Fed. R. Civ. P. 58)(e). Because Millbrook timely filed its Rule 54(d)(2) motion for
attorneys’ fees, which has the same effect on the appeal deadline as a timely motion made
under Civil Rule 59, and because this Court has the authority under Rule 58(e) to extend the
notice of appeal deadline in this case, the Court finds that the parties’ notice of appeal
deadline is due to be extended.
Accordingly, it is hereby ORDERED that:
(1) Millbrook’s Motion to Extend Time for Filing Notice of Appeal (Doc. #63) is
GRANTED, and;

(2) The deadline for filing a Notice of Appeal in the above-styled action is
EXTENDED through and including January 20, 2012.
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DONE this the 18th day of December, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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