Eastwood Auto Body & Garage, Inc. v. City of Waterbury

PER CURIAM:

Plaintiffs-appellants Eastwood Auto Body and Garage, Inc., et al., seek in banc review of the decision by a panel of this Court to deny appellants’ motion for additional time to file a petition for rehearing with suggestion for rehearing in banc. Upon motion, this Court may “for good cause shown ... enlarge the time prescribed” to file a petition for rehearing or modify an erroneous decision even though the time for rehearing has expired. Fed. R.App. P. 26(b) & 40; see Braniff Airways, Inc. v. Curtiss-Wright Corp., 424 F.2d 427, 429 (2d Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 59, 27 L.Ed.2d 59 (1970). The decision whether to grant the motion is discretionary. See Marino v. Ortiz, 888 F.2d 12, 13-14 (2d Cir.1989) (per curiam) (denying Rule 40 motion for extension of time based on new Supreme Court decision as “nothing but an attempt to reopen a final judgment because of a subsequent change in the law”).

Discretion in this case was soundly exercised. There is a pattern of appellants’ repeated defaults, lateness and extensions, both here and in the district court. Such conduct wastes everyone’s resources, breeds incivility between counsel, and (unless papers show otherwise, as these do not) betrays counsel’s view that the litigation lacks promise except to delay a day of reckoning.

The motion for in banc review is denied. The mandate shall issue forthwith.