Morris v. Ales Group USA, Inc.

08-4575-cv
Morris v. Ales Group USA, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN C ITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 24th day of May, two thousand ten.
PRESENT:
JOHN M. WALKER, Jr.,
CHESTER J. STRAUB,
ROSEMARY S. POOLER,
Circuit Judges.
__________________________________________
Deanna Morris,
Plaintiff-Appellant,
v. 08-4575-cv
Ales Group USA, Inc., Eric Domel,
Defendants-Appellees.
_________________________________________
FOR APPELLANT: Deanna Morris, pro se, New York, N.Y.
FOR APPELLEES: Glen H. Parker, Hoey, King, Toker & Epstein,
New York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Crotty, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that the
appeal is DISMISSED.
Plaintiff Deanna Morris, pro se, appeals a post-judgment order denying her motion for
reconsideration of the decision below granting summary judgment for defendants. The present
appeal represents plaintiff’s second attempt to appeal the judgment dismissing her complaint.
Previously, a panel of this Court dismissed plaintiff’s first appeal as untimely. Morris v. Ales
Group USA, Inc., No. 07-3849-cv (2d Cir. Feb 28, 2008). (Judgment was entered below on July
3, 2007, but plaintiff did not file a notice of appeal until August 13, 2007. See Fed. R. App. P.
4(a)(1).) After her first appeal was dismissed, plaintiff moved for reconsideration in the district
court, was denied, and moved for reconsideration of the denial. Plaintiff now seeks to appeal the
denial of her first post-appeal motion for reconsideration.1 We assume the parties’ familiarity
with the case.
“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”
Bowles v. Russell, 551 U.S. 205, 214 (2007). In a civil case, an appellant must generally file a
notice of appeal within 30 days of the entry of the order being appealed. Fed. R. App. P. 4(a)(1).
Here, the order plaintiff seeks to appeal – the district court’s denial of plaintiff’s first motion for
reconsideration – was entered on July 22, 2008. Plaintiff’s notice of appeal was filed on August
22, 2008, one day late. See Fed. R. App. P. 4(a)(1)(A). Further, plaintiff’s second Rule 60
motion was not timely filed for purposes of tolling the time to file a notice of appeal. See Fed. R.
App. P. 4(a)(4)(A). The mere service of plaintiff’s second motion was insufficient for tolling
purposes. See Camacho v. City of Yonkers, 236 F.3d 112, 115 (2d Cir. 2000); Fruit of the Loom,
Inc. v. American Mktg. Enters., Inc., 192 F.3d 73, 75 (2d Cir. 1999).
During oral argument, plaintiff denied that her initial appeal was untimely, claiming that
the filing dates contained on the district court’s docket sheet are inaccurate due to the district
court’s mishandling of her submissions. On our invitation, plaintiff subsequently submitted over
500 pages of records ostensibly showing that the filing dates on the docket sheet were erroneous.
We have carefully reviewed plaintiff’s submissions, and find nothing to substantiate her
allegations.
Although a district court may, in certain circumstances, extend the time for filing a notice
of appeal, a court of appeals may not. See 28 U.S.C. § 2107(c); Fed. R. App. P. 26(b)(1).
Accordingly, because the district court has denied plaintiff’s motion for an extension of time to
appeal, this appeal must be, and therefore is, DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1
Plaintiff’s second motion for reconsideration is not within the ambit of this appeal, since
the notice of appeal indicates that the second motion was still pending at the time of the appeal,
thus negating any inference that plaintiff intended to appeal that order.
2