Kosilek v. Department of Corr, et al

Filing 583

Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHELLE L. KOSILEK,
Plaintiff,
v.
LUIS S. SPENCER, in his official
capacity as Commissioner of the
Massachusetts Department of
Correction,
Defendant.

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C.A. No. 00-12455-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

November 9, 2012

The court now realizes that its October 24, 2012 Memorandum
and Order directed that certain submissions be made on a federal
holiday,

November

12,

2012.

In

addition,

the

court

did

not

establish a deadline for plaintiff to respond to defendant's
opposition to the motion for costs and attorneys' fees. Therefore,
it is hereby ORDERED that the submissions due on November 12, 2012
shall be filed by November 13, 2012. Plaintiff's reply to the
opposition to the motion for attorneys' fees, or a motion to extend
the time to make that submission, shall also be filed by November
13, 2012.
In addition, it appears that plaintiff's timely filed Motion
to Amend Judgment under Federal Rule of Civil Procedure 52(b) (the
"Motion") destroys the finality of the judgment. See 9-52 James Wm.
Moore et al., Moore's Federal Practice - Civil §52.62 (2012) ("A
timely Rule 52(b) motion to amend or add to the findings of fact or

conclusion of law destroys the finality of the judgment, whether
the motion is made before or after an appeal has been taken."). It
also appears that defendant's notice of appeal may be rendered
inoperative by the Motion. See Fed. R. Civ. P. 52(b); Fed. R. App.
P. 4(a)(4)(A)(ii);1 Fed. R. App. P. 4(a)(4)(B)(i);2 Baker Indus.,
Inc. v. Howard Electrical & Mech., Inc., 794 F.2d 965, 967 (5th
Cir. 1986); 15A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure §3914.9 (2d ed.); 9-52 James Wm. Moore et
al., Moore's Federal Practice - Civil §52.62 (2012); see also Rio
Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 67 (1st Cir.
2005).
If the Motion is not denied at the November 19, 2012 hearing,
it will likely require further discovery, briefing and evidentiary
hearings. See Sept. 4, 2012 Memorandum and Order on Electrolysis at
2-3

("Nor

is

the

court

now

issuing

any

order

concerning

electrolysis, in part because the sex reassignment surgery that has

1

Federal Rule of Appellate Procedure 4(a)(4)(A) states: "If
a party timely files in the district court any of the following
motions under the Federal Rules of Civil Procedure, the time to
file an appeal runs for all parties from the entry of the order
disposing of the last such remaining motion: . . . (ii) to amend
or make additional factual findings under Rule 52(b), whether or
not granting the motion would alter the judgment."
2

Federal Rule of Appellate Procedure 4(a)(4)(B)(i)
provides: "If a party files a notice of appeal after the court
announces or enters a judgment – but before it disposes of any
motion listed in Rule 4(a)(4)(A) – the notice becomes effective
to appeal a judgment or order, in whole or in part, when the
order disposing of the last such remaining motion is entered."
2

been ordered will be a material change in circumstances regarding
any

arguable

serious

medical

need

Kosilek

may

have

for

electrolysis."). Therefore, the Motion has the potential to delay
the progress of the appeal that plaintiff has expressed a desire to
have decided as soon as possible.
Accordingly, unless an extension is requested, plaintiff
shall, by November 13, 2012, inform defendant and the court whether
he

wishes

to

withdraw

his

request

to

re-open

the

issue

of

electrolysis and, if not, address the implications of the Motion
for the pending appeal.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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