Loss Prevention Works, LLC v. March Networks,Inc. et al
Filing
104
MEMORANDUM OPINION AND ORDER re: 94 MOTION for Extension of Time to File Notice of Appeal filed by Loss Prevention Works, LLC. LPW's May 2, 2011 motion for an extension of time to file its notice of appeal is granted. (Signed by Judge Denise L. Cote on 11/17/2011) (jar)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
LOSS PREVENTION WORKS, LLC
:
Plaintiff,
:
:
-v:
:
MARCH NETWORKS, INC. and MARCH
:
NETWORKS, CORP.,
:
Defendants. :
:
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APPEARANCES:
For Plaintiff:
Gary H. Fechter
McCarter & English, LLP
245 Park Avenue, 27th Floor
New York, NY 10167
Scott S. Christie
Jonathan Short
Mark H. Anania
McCarter & English, LLP
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102
Lucian Ulmet
J.C. Neu & Associates
318 Newman Springs Road
Red Bank, NJ 07701
Steven Glen Mintz
Terrence William McCormick
Mintz & Gold LLP
470 Park Ave. South, 10th Fl. North
New York, NY 10016
10 Civ. 7616 (DLC)
MEMORANDUM OPINION &
ORDER
For Defendants:
Robert D. Goldstein
J. William Cook
Aime Dempsey
Nicholas S. Allison
Epstein Becker & Green, P.C.
250 Park Avenue
New York, NY 10177
DENISE COTE, District Judge:
On May 2, 2011, plaintiff Loss Prevention Works (“LPW”)
moved for an extension of time to file its notice of appeal.
For the following reasons, the motion is granted.
BACKGROUND
On March 1, 2011, following a verdict rendered by a jury in
favor of LPW, defendants March Networks, Inc., and March
Networks, Corp. (collectively “MNI”) renewed their motion for a
directed verdict.
court.
The motion was granted on the record in open
The Court stated that it would decide any post-trial
motions and then the parties would have their “appeal rights,
whatever they are, depending on who wins or loses at the end of
the day.”
By Order dated March 1, a briefing schedule was set
for any post-trial motions.
The motions were due by April 1.
The March 1 Order, however, did not refer to the directed
verdict that had been announced on March 1, and no entry of the
decision was entered on the Court’s docket.
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Neither LPW nor MNI
made a post-verdict motion except for MNI’s motion for an award
of attorney’s fees.
On April 5 -- more than thirty days after the Court had
announced a directed verdict in favor of MNI -- LPW filed a
notice of appeal.
At that time, both plaintiff’s counsel and
the Clerk of Court requested that the Court enter an order with
language referring to the directed verdict.
On April 13, an
Order was entered (the “April 13 Order”) stating:
“For the
reasons stated on the record on March 1, 2011, it was then
ORDERED that defendant’s motion for a directed verdict was
granted, thereby disposing of the merits of the action.”
On
April 14, the clerk uploaded the Notice of Appeal to the docket
sheet and linked it to the April 13 Order as the event to which
it related.
On May 2, LPW filed a motion for an order to extend the
time to file a notice of appeal pursuant to Rule 4(a)(5)(A)
and/or 4(a)(6) of the Federal Rules of Appellate Procedure.
motion became fully submitted on May 31.
The
On June 24, the Court
received a supplemental letter from LPW to which MNI responded
in a letter dated June 28.
A final letter from LPW was received
on June 30.
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DISCUSSION
The parties assert a number of arguments concerning LPW’s
time for taking an appeal from the directed verdict.
Citing the
United States Code and the Federal Rules of Appellate and Civil
Procedure, the parties variously contend that the clock began
either in early March or as late as April 13.
The parties
agree, however, that plaintiff’s notice of appeal is timely if
LPW is awarded an extension of time pursuant to Rule 4(a)(5)(A),
Fed. R. App. P.
Rule 4(a)(5)(A) provides that a district court may grant an
extension of time to file a notice of appeal if:
(1) a party so
moves no later than thirty days after its prescribed time under
Rule 4(a) expires; and, (2) the party shows excusable neglect or
good cause.
The test for determining what constitutes excusable
neglect is “liberal.”
Williams v. KFC Nat. Management Co., 391
F.3d 411, 415 (2d Cir. 2004).
[T]he determination is at bottom an equitable one,
taking account of all relevant circumstances,
including: (1) the danger of prejudice to the nonmoving party, (2) the length of delay and impact on
judicial proceedings, (3) the reason for the delay,
including whether it was within the reasonable control
of the moving party, and (4) whether the moving party
acted in good faith.
Id. (citation omitted).
When the non-moving party objects to
the validity of the explanation for the delay, however, the
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third-factor, the reason for delay “predominates, and the other
three are significant only in close cases.”
Id. at 415-16.
It is undisputed that LPW timely filed its Rule 4(a)(5)(A)
motion.
Accordingly, the only issue is whether any delay by LPW
was caused by excusable neglect.
MNI does not suggest that
LPW’s request for an extension would cause it any prejudice or
that it would delay or otherwise impact the judicial
proceedings.
Additionally, MNI does not assert that LPW acted
in bad faith.
Thus, the real quarrel between the parties is
over the third factor in the excusable neglect analysis:
the
reason for LPW’s delay.
LPW identifies a number of reasons for its failure to file
a notice of appeal by March 31 including:
(1) the Court’s
statement that the parties would be able to appeal the directed
verdict following post-trial motion practice; and, (2) the
absence of an order to the Clerk of Court to enter judgment in
favor of the defendants.
Given the record of proceedings set
forth above, it is just and equitable to excuse any delay on the
part of the plaintiff in filing its notice of appeal.
CONCLUSION
LPW’s May 2, 2011 motion for an extension of time to file
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its notice of appeal is granted.
SO ORDERED:
Dated:
New York, New York
November 17, 2011
United
6
District Judge
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