Maecker v. EverHome Mortgage Company

Filing 33

ORDER: For the reasons stated in the attached Order, the Court finds that it lacks the necessary jurisdiction to rule on Plaintiff's motion for reconsideration 31 and 32 . However, pursuant to Federal Rule of Civil Procedure 62.1(a)(3), the Court indicates that if the Court of Appeals were to remand the issue pursuant to Federal Rule of Appellate Procedure 12.1, the Court would grant the motion for reconsideration for the limited purpose of reconsidering the Report and Recommendation i n light of Plaintiff's untimely objections and exhibits. Plaintiff is advised that he is obligated to provide notice of this Court's indicative ruling to the Clerk of the Court of Appeals for the Second Circuit. A copy of the Order and this docket entry have been mailed to William Maecker, 133 Central Avenue, Silver Creek, NY 14136. Signed by Hon. Richard J. Arcara on 7/31/14. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
WILLIAM A. MAECKER,
Plaintiff,

13-CV-305-A(Sc)
RULE 62.1 INDICATIVE RULING

v.
EVERHOME MORTGAGE COMPANY,
Defendant.
_________________________________

Plaintiff William A. Maecker, proceeding pro se, has moved for
reconsideration of this Court’s order adopting Magistrate Judge Scott’s Report
and Recommendation. In his complaint, Plaintiff alleges, generally, that the
Defendant did not disburse funds from a loan, the effect of which was to impede
Plaintiff’s restoration of his residence in Silver Creek, New York. Magistrate
Judge Scott construed the Defendant’s motion to dismiss as a motion for
summary judgment, which he recommended granting.
The substance of Plaintiff’s motion for reconsideration involves the events
that transpired around the time when Plaintiff’s objections to the Report and
Recommendation were due. Plaintiff argues that the Court adopted Magistrate
Judge Scott’s Report and Recommendation without the benefit of Plaintiff’s
objections and exhibits, which were not received by the Court’s March 24, 2014
deadline. According to Plaintiff, he mailed “written documents” on March 24,
2014 and “exhibits” on March 25, 2014. Dkt. No. 31 at 2. Plaintiff states that the

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Court received his exhibits on March 26, but that on March 27, the Clerk’s Office
returned the exhibits because “they [were] not in a form [the Clerk’s] office can
accept for filing.” Id. (quoting notice from the Office of the Clerk, dated March 27,
2014). On March 26, 2014, the Court adopted Magistrate Judge Scott’s Report
and Recommendation. Dkt. No. 25.
Plaintiff then filed both a notice of appeal and a seventy-seven page
motion for reconsideration pursuant to Federal Rule of Civil Procedure 60. 1 Dkt.
Nos. 29, 30, 32. For the reasons stated below, the Court finds that Plaintiff’s
filing of a notice of appeal divested the Court of jurisdiction to consider Plaintiff’s
motion for reconsideration. However, the Court also indicates that if the Court of
Appeals were to remand the issue, the Court would grant Plaintiff’s motion for the
limited purpose of reconsidering the Report and Recommendation in light of
Plaintiff’s exhibits and objections.
A. The Court’s Jurisdiction to Decide the Motion for Reconsideration
A non-prevailing litigant in district court ordinarily must file a notice of
appeal within thirty days of the district court’s entry of judgment. See Fed. R.
App. P. 4(a)(1)(A). However, that time period may be extended when the
appellant files one of the several post-judgment motions listed in Federal Rule of
Appellate Procedure 4(a)(4)(A). Among the motions listed in Rule 4(a)(4)(A), a
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Plaintiff’s voluminous submission was not in compliance with Local Rule 7(a)(2)(C),
which, absent leave from the Court, limits briefs to twenty-five pages. However, in light of
Plaintiff’s pro se status, the Court will entertain Plaintiff’s motion.

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Rule 60 motion, which Plaintiff has filed in this case, restarts the clock to file a
notice appeal from “the entry of the order” disposing of the Rule 60 motion. Fed.
R. App. P. 4(a)(4)(A)(vi). Critically, however, this extension to file a notice of
appeal applies only if the Rule 60 motion “is filed no later than 28 days after the
judgment was entered.” Id.
In this case, Plaintiff’s Rule 60 motion was filed on April 25, 2014—29 days
after judgment was entered on March 27, 2014. See Dkt. No. 27 (judgment);
Dkt. No. 31 (motion for reconsideration). Thus, because Plaintiff’s Rule 60
motion was filed more than 28 days after the entry of judgment, it is not a motion
that extends the time to file a notice of appeal pursuant to Rule of Appellate
Procedure 4(a)(4)(A)(vi). Therefore, the time within which Plaintiff had to file his
notice of appeal runs from the date on which the Court entered judgment, and
not from the date on which the Court resolves Plaintiff’s motion for
reconsideration.
As noted, judgment in this case was entered on March 27, 2014. Fewer
than thirty days after the entry of judgment, Plaintiff filed a notice of appeal. Dkt.
No. 29. The effect of Plaintiff’s timely notice of appeal was to divest this Court of
jurisdiction over the matter and transfer jurisdiction to the Court of Appeals. See
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (noting that
“[t]he filing of a notice of appeal is an event of jurisdictional significance—it

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confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal”).
The Court’s disposition of Plaintiff’s motion for reconsideration is therefore
governed by Rule of Civil Procedure 62.1, which permits district courts to make
“indicative rulings” on post-judgment motions over which district courts otherwise
lack jurisdiction. Accordingly, Rule 62.1(a) provides that “[i]f a timely motion is
made for relief that the court lacks authority to grant because of an appeal that
has been docketed and is pending,” the district court may either “(1) defer
considering the motion; (2) deny the motion; or (3) state either that it would grant
the motion if the court of appeals remands for that purpose or that the motion
raises a substantial issue.”
B. The Merits of Plaintiff’s Motion for Reconsideration
Plaintiff bases his motion for reconsideration on Federal Rules of Civil
Procedure 60(a) and 60(b). However, Plaintiff’s reference to Rule 60(a), which
permits the Court to “correct a clerical mistake or a mistake arising from oversight
or omission whenever one is found in a judgment, order, or other part of the
record” is irrelevant to Plaintiff’s contention that the Court did not timely receive
his objections and exhibits. Although Plaintiff’s confusion over Rule 60(a)’s use
of the word “clerical” is understandable, Rule 60(a) does not apply in these
circumstances. Instead, a Rule 60(a) motion “must seek to conform the written
judgment actually rendered by the court; it cannot seek to alter the substantive
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rights of the parties.” Dudley ex rel. Estate of Patton v. Penn-America Ins. Co.,
313 F.3d 662, 671 (2d Cir. 2002) (Sotomayor, J., concurring in the judgment).
The judgment in this case, Dkt. No. 27, is identical to the outcome of the litigation
that preceded it. Dkt. No. 25. Accordingly, Plaintiff’s reliance on Rule 60(a) is
inapposite.
However, Plaintiff’s second basis for reconsideration, Rule 60(b), is more
promising for Plaintiff. Rule 60(b) sets forth several grounds pursuant to which
“the court may relieve a party . . . from a final judgment, order, or proceeding.”
Although Plaintiff cites several bases for relief under Rule 60(b), the only
meritorious basis is Rule 60(b)(1), which authorizes a district court to grant relief
where there has been “mistake, inadvertence, surprise, or excusable neglect.”
Rule 60(b)(1) relief is generally granted only when the “order from which relief is
sought was the consequence of ‘excusable neglect’ by the movant or the
movant’s counsel.” Cobos v. Adelphi Univ., 179 F.R.D. 381, 386 (E.D.N.Y.
1998). In turn, the Supreme Court has held, in a related context, that “excusable
neglect” is an “equitable determination which could be reached only after an
analysis of ‘all relevant factors including the danger of prejudice to the nonmovant, the length of the delay and its potential impact on judicial proceedings,
the reason for the delay, including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith.” Id. (quoting Pioneer
Inv. Co. v. Brunswick Ass’c Ltd. Ptrshp., 507 U.S. 380, 385 (1993))

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As noted above, Plaintiff argues that the Court adopted Magistrate Judge
Scott’s Report and Recommendation without the benefit of Plaintiff’s objections
and exhibits. These objections and exhibits, although untimely, were ultimately
received by the Court, and Plaintiff’s motion suggests that Plaintiff was diligent in
attempting to timely file his documents. Untimeliness is ordinarily an insufficient
basis for relief under Rule 60(b)(1), and if Plaintiff were represented by an
attorney, his untimeliness, though inadvertent, would likely not provide grounds
for relief. See Alvarado v. Manhattan Worker Career Ctr., No. 01 Civ. 9288
(CBM), 2003 WL 22462032, at *2 (S.D.N.Y. 2003). However, solely because of
Plaintiff’s pro se status, as well as what appears to be his good faith effort to
timely file his documents, the Court indicates, pursuant to Federal Rule of Civil
Procedure 62.1(a)(3), that if the Court of Appeals were to remand the issue, this
Court would grant Plaintiff’s motion for reconsideration for the limited purpose of
reconsidering the Report and Recommendation in light of Plaintiff’s objections
and exhibits.
Conclusion
For the reasons stated above, the Court finds that because Plaintiff filed a
timely notice of appeal, the Court lacks the jurisdiction necessary to rule on
Plaintiff’s motion for reconsideration. However, pursuant to Federal Rule of Civil
Procedure 62.1(a)(3), the Court indicates that if the Court of Appeals were to
remand the issue pursuant to Federal Rule of Appellate Procedure 12.1, the
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Court would grant the motion for reconsideration for the limited purpose of
reconsidering the Report and Recommendation in light of Plaintiff’s untimely
objections and exhibits. Plaintiff is advised that he is obligated to provide notice
of this Court’s indicative ruling to the Clerk of the Court of Appeals for the Second
Circuit. See Fed. R. Civ. P. 62.1(b).
SO ORDERED.

DATED: July 31, 2014
Buffalo, New York

s/Richard J. Arcara______________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE

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