Manigault v. ABC Inc. ( 2019 )

18‐3133
Manigault v. ABC Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse, 40
Foley Square, in the City of New York, on the 27th day of November, two
thousand nineteen.
PRESENT:
AMALYA L. KEARSE,
CHRISTOPHER F. DRONEY,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
CAESAR MANIGAULT,
Plaintiff‐Appellant,
v. 18‐3133
ABC INC., WABC‐TV NEW YORK,
Defendant‐Appellee.
_____________________________________
FOR APPELLANT: Caesar Manigault, pro se, Durham,
NC.
FOR APPELLEE: Nathan Siegel, Adam I. Rich, Rachel
F. Strom, Davis Wright Tremaine
LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Kevin Nathaniel Fox, M.J.1).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Caesar Manigault, proceeding pro se, appeals the judgment of the
district court, which granted summary judgment in favor of ABC, Inc. (“ABC”) on
Manigault’s claims that ABC violated trademark and copyright laws when it
briefly showed his company’s logo during a news broadcast. On appeal,
Manigault challenges only the district court’s grant of an extension of time to ABC
to answer the complaint. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
1
The parties consented to have Magistrate Judge Fox conduct all proceedings pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
2
I. Waiver of Claims
Although we “liberally construe pleadings and briefs submitted by pro se
litigants, reading such submissions to raise the strongest arguments they suggest,”
McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting Bertin
v. United States, 478 F.3d 489, 491 (2d Cir. 2007)), pro se appellants must still comply
with Federal Rule of Appellate Procedure 28(a), which “requires appellants in
their briefs to provide the court with a clear statement of the issues on appeal,”
Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). Thus, despite affording pro se
litigants “some latitude in meeting the rules governing litigation,” we “normally
will not[ ] decide issues that a party fails to raise in his or her appellate brief.” Id.;
see also Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632–33 (2d Cir. 2016) (“Although
we accord filings from pro se litigants a high degree of solicitude, even a litigant
representing himself is obliged to set out ‘identifiable arguments’ in his principal
brief.” (citation omitted)); LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995)
(“[W]e need not manufacture claims of error for an appellant proceeding pro se,
especially when he has raised an issue below and elected not to pursue it on
appeal.”). Nor will we usually decide issues that an appellant raises only in
passing. See Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4 (2d
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Cir. 2013) (finding that a pro se litigant “waived any challenge” to the district
court’s adverse ruling because brief mentioned the ruling only “obliquely and in
passing”).
Here, Manigault challenges only the district court’s grant of an extension of
time to ABC to answer the initial complaint; he does not raise any arguments
challenging the district court’s grant of summary judgment in favor of ABC or any
other district court orders. Thus, any challenge to those decisions has been
waived.
II. Federal Rule of Civil Procedure 6
A district court may extend a deadline for good cause “with or without motion
or notice if the court acts, or if a request is made, before the original time or its
extension expires.” Fed. R. Civ. P. 6(b)(1)(a) (emphasis added). We review the
grant of an extension of time for abuse of discretion. See Sanozky v. Int’l Ass’n of
Machinists & Aerospace Workers, 415 F.3d 279, 283 (2d Cir. 2005). “A district court
has abused its discretion if it based its ruling on an erroneous view of the law or
on a clearly erroneous assessment of the evidence, or rendered a decision that
cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d
4
117, 132 (2d Cir. 2008) (internal quotation marks, citations, and alterations
omitted).
Here, ABC requested an extension of time on October 27, 2017, prior to the
November 2, 2017 deadline for its answer. See Fed. R. Civ. P. 12(a)(1)(A)(i)
(setting a 21‐day deadline to answer a complaint after being served). Thus, ABC
was not required to file a formal motion (with notice) or make a showing of
excusable neglect; ABC needed to show only “good cause.” Fed. R. Civ. P.
6(b)(1)(A). ABC explained that it sought an extension because it had not been
served with the exhibits attached to the complaint.
The district court’s finding that this reason sufficiently amounted to “good
cause” was not erroneous or an abuse of discretion. See Ahanchian v. Xenon
Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010) (“‘Good cause’ is a non‐rigorous
standard that has been construed broadly across procedural and statutory
contexts.” (citing precedent in the First, Fourth, and Seventh Circuits)); see also 4B
Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and
Procedure § 1165 (4th ed. 2019 update) (stating that extensions requested before the
deadline should generally be granted absent bad faith or prejudice to another
party). Manigault’s assertions that ABC purposely committed fraud or otherwise
5
acted in bad faith in seeking the extension are conclusory and unsupported by the
record. 2 Further, Manigault has failed to show, or even argue, that he was
prejudiced as a result of the 20‐day extension. In fact, he later filed an amended
complaint that was adjudicated on the merits on summary judgment. See New
York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (“[W]e have expressed a strong
preference for resolving disputes on the merits.” (internal quotation marks
omitted)); Miller v. Apfel, No. 99‐6317, 2000 WL 509987, at *1 (2d Cir. Apr. 26, 2000)
(“In light of this [C]ircuit’s clear preference for adjudication on the merits and the
absence of prejudice to plaintiff, [the district court] did not abuse [its] discretion
when [it] implicitly denied the default motion and accepted the government’s late
answer.”). Finally, the cases that Manigault cites in his reply brief are inapposite,
since those cases involved state civil procedure rules and/or determinations about
whether certain inactions constituted excusable neglect; as discussed above, ABC
2 Contrary to Manigault’s argument, the fact that a different lawyer is representing ABC
on appeal is not unusual and does not support his assertion that the first lawyer
purposely committed fraud. Although Manigault’s assertion that ABC did have the
ability to contact him when it sought the extension appears to be correct, since his
complaint listed his telephone number and email address, that fact does not necessarily
show that ABC purposely committed fraud when it stated it was unable to contact him.
In any event, ABC was not required to contact him, see Fed. R. Civ. P. 6(b)(1)(A), and its
alleged inability to contact Manigault was not the reason it sought the extension of time.
6
was not required to make a showing of excusable neglect. Here, the district court
properly applied Federal Rule 6(b)(1)(A) and acted well within its discretion in
extending the deadline.
We have considered all of Manigault’s remaining arguments and find them
to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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