Brewer v. Rutland Herald et al

Filing 114

SUMMARY ORDER - That Brewer's motion to reopen the time to file an appeal pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure (Dkt. No. 92) is DENIED. That parties shall notify the Second Circuit of this Summary Order within thirty (30) days of the date of this Summary Order. Signed by Senior Judge Gary L. Sharpe on 3/2/2017. (Copy served via regular and certified)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ROBERT BREWER,
Plaintiff,

3:14-cv-958
(GLS/DEP)

v.
RUTLAND HERALD et al.,
Defendants.
________________________________
SUMMARY ORDER
Judgment was entered dismissing this matter on August 18, 2016;
the Clerk served the judgment on plaintiff pro se Robert Brewer by both
regular and certified mail the same day. (Dkt. No. 90.) On September 15,
2016, the certified mailing was returned to the court as unclaimed. (Dkt.
No. 91.) One week later, the court received a letter dated September 21,
2016, indicating that Brewer “check[s] his mailbox regularly,” but only
received the judgment on September 20, presumably by regular mail. (Dkt.
No. 92.) The Second Circuit has directed the court to construe that letter
as a motion to reopen the time to file an appeal and “to consider whether
such motion should be granted.” (Dkt. No. 102.) Defendants were ordered
by this court to advise it of their position on the issue raised by the Circuit’s

order (Dkt. No. 103), and they have done so, (Dkt. Nos. 104, 105, 108,
109). Despite no invitation to do so, Brewer took it upon himself to file an
additional affidavit bearing on the issue too. (Dkt. Nos. 111, 113.)
As relevant here, Rule 4(a)(6) of the Federal Rules of Appellate
Procedure empowers the district court with discretion to “reopen the time to
file an appeal for a period of [fourteen] days after the date when its order to
reopen is entered” if: (1) “the court finds that the moving party did not
receive notice . . . of the entry of judgment . . . within [twenty-one] days
after entry”; (2) “the motion is filed . . . within [fourteen] days after the
moving party receives notice . . . of the entry”; and (3) “the court finds that
no party would be prejudiced.” Even if all the criteria of Rule 4(a)(6) are
met, the court may properly exercise its discretion to deny such a motion if,
in the court’s view, the moving party’s own fault brought about the failure to
receive timely notice. See In re WorldCom, Inc., 708 F.3d 327, 338 (2d
Cir. 2013) (“[A]t a minimum, a district court exercising discretion under
Rule 4(a)(6) should give substantial weight to indications that the failure of
receipt was the litigant’s fault.”).
Here, accepting as true Brewer’s contention that he received the
judgment for the first time on September 20 — a notion which seems at
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odds with his admission that he regularly checks his mail, (Dkt. No. 92) —
and finding that all requirements under Rule 4(a)(6) are facially met, the
court declines to exercise its discretion because Brewer’s failure to timely
receive notice of entry of judgment was his own fault. While Brewer
mentions a medical condition that causes “inner ear disturbances resulting
in vertigo and equilibrium imbalance” in his filing, he also readily admits
that his condition does not impede his ability to “regularly” check his mail.
(Dkt. No. 92.) His other excuses — “a heavy workload,” “technology
[dis]advantage,” and “simple justice” — do not alter the court’s view of the
issue either. (Dkt. No. 111 at 2-3.) Service of notice of entry of judgment
is “‘merely for the convenience of litigants’ and . . . litigants at all times
have an ‘obligation to monitor the docket sheet to inform themselves of the
entry of orders they wish to appeal.’” In re WorldCom, Inc., 708 F.3d at
341 (quoting Fed. R. Civ. P. 77 advisory committee’s note to the 1946
amendment). For all of these reasons, Brewer’s motion, (Dkt. No. 92), is
denied.
Accordingly, it is hereby
ORDERED that Brewer’s motion to reopen the time to file an appeal
pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure (Dkt.
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No. 92) is DENIED; and it is further
ORDERED that parties shall notify the Second Circuit of this
Summary Order within thirty (30) days of the date of this Summary Order;
and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
March 2, 2017
Albany, New York

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