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Silivanch v. Celebrity Cruises, Inc.

Silivanch v. Celebrity Cruises, Inc.

United States Court of Appeals for the Second Circuit

 September 24, 2002, Argued ; June 25, 2003, Decided

Docket Nos. 02-7229, 02-7279, 02-7320, 02-7595, 02-7600, 02-7603, 02-7604, 02-7606, 02-7607, 02-7608, 02-7609, 02-7610, 02-7611, 02-7612, 02-7613, 02-7615, 02-7617, 02-7619, 02-7643, 02-7667, 02-7669, 02-7670, 02-7671, 02-9145, 02-9207

Opinion

 [*358]  SACK, Circuit Judge:

Plaintiffs-Appellees-Cross-Appellants (the "plaintiffs") move to dismiss appeals filed by Defendants-Appellants-Cross-Appellees Essef Corporation, Pac-Fab, Inc., and Structural Europe, N.V. (collectively "Essef") and cross-appeals filed by Defendants-Cross-Appellants Celebrity Cruises, Inc., and Fantasia Cruising, Inc. (collectively "Celebrity") from a mass tort action heard in the United States District Court for the Southern District of New York. The plaintiffs contend that we lack jurisdiction to hear the appeals because Essef did not file a notice of appeal within thirty days after judgment was entered as required by Fed. R. App. P. 4(a)(1). Essef relies on an extension of the time to file granted by the district court (James C. Francis IV, Magistrate [**4]  Judge) under Fed. R. App. P. 4(a)(5) after the court found that the neglect that resulted in Essef's tardiness was excusable. The plaintiffs argue that Essef's neglect was not excusable and that the district court abused its discretion in holding otherwise. For the reasons set forth below, we agree with the plaintiffs.

In addition, Essef contends that the judgments appealed from did not become final and the time to appeal did not begin to run until the district court entered its Fed. R. Civ. P. 54(b) order on the docket in Silivanch, the "bellwether" case, which it did not do until after we held argument with respect to these motions. Essef bases this contention on the fact that although an order under Fed. R. Civ. P. 54(b), which directed that the judgment from which appeal was being sought was final and therefore appealable, was signed by the magistrate judge on January 25, 2002, and mailed to the parties, there was not then an entry in the docket for the "bellwether" action reflecting the issuance of the order. We conclude that the Rule 54(b) order was effective when it was signed and issued, even though it was not then entered in the "bellwether" action docket.

We therefore [**5]  dismiss the appeals and cross-appeals for want of appellate jurisdiction.

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333 F.3d 355 *; 2003 U.S. App. LEXIS 12841 **; 2003 AMC 2208; 56 Fed. R. Serv. 3d (Callaghan) 599

John and Joyce Silivanch, Felice and Frances DeFrancesco, Raymond and Mary Hague, Carol and Richard Lorenzo, Plaintiffs-Appellees-Cross-Appellants, Dorothy Cantone, Kevin L. Jenkins, William, Kathleen, William Jr., and Kimberly Buck, Ronald and Sima Cesarski, Michael and Doris Sckipp, Fran and Rita Galante, Mary and Louis B. Montes, Jane King, Clare Dillon, and Mary Purcell, Plaintiffs-Appellees, v. Celebrity Cruises, Inc., and Fantasia Cruising, Inc., Defendants-Cross-Appellants, v. Essef Corp., Pac-Fab, Inc., and Structural Europe, N.V. (f/n/a SFC), 1 Defendants-Appellants-Cross-Appellees.

Subsequent History: As Amended July 14, 2003.

US Supreme Court certiorari denied by Essef Corp. v. Silivanch, 157 L. Ed. 2d 890, 124 S. Ct. 1047, 2004 U.S. LEXIS 65 (U.S., 2004)

Motion granted by Celebrity Cruises, Inc. v. Essef Corp., 2004 U.S. Dist. LEXIS 23058 (S.D.N.Y., Nov. 15, 2004)

Prior History:  [**1]  Plaintiffs-Appellees-Cross-Appellants move to dismiss the appeals of Defendants-Appellants-Cross-Appellees and the cross-appeals of Defendants-Cross-Appellants from final judgments of the United States District Court for the Southern District of New York (James C. Francis IV, Magistrate Judge) entered pursuant to Fed. R. Civ. P. 54(b). Upon a finding that Defendants-Appellants-Cross-Appellees' failure to file a notice of appeal before the time in which to do so set forth in Fed. R. App. P. 4(a)(1) expired was the result of "excusable neglect," the district court granted them an extension of time to file under Fed. R. App. P. 4(a)(5). We conclude that the district court abused its discretion by doing so. We also conclude that the district court's Fed. R. Civ. P. 54(b) certification was effective when it was signed and mailed to the parties and that its late filing and docketing in the "bellwether" case did not affect the date upon which the time in which to file a notice of appeal began to run. We therefore dismiss the appeals and cross-appeals.

Celebrity Cruises Inc. v. Essef Corp. (In re Horizon Cruises Litig.), 2002 U.S. Dist. LEXIS 8679 (S.D.N.Y., May 15, 2002)

Disposition: Defendants' appeals and cross-appeals dismissed.

CORE TERMS

district court, excusable neglect, notice of appeal, Supplemental, cases, deadline, notice, judgments, appeals, neglect, file a notice of appeal, parties, cross-appeals, effective, docketed, extension of time, final judgment, certification, bellwether, filters, magistrate judge, thirty days, mailed, separate document, time to appeal, federal rule, time limit, quotation, marks, filing of a notice of appeal

Civil Procedure, Judgments, Entry of Judgments, Multiple Claims & Parties, Appeals, Reviewability of Lower Court Decisions, Timing of Appeals, Governments, Legislation, Statute of Limitations, Time Limitations, Pleadings, Time Limitations, Extension of Time, General Overview, Standards of Review, Abuse of Discretion, Criminal Law & Procedure, Abuse of Discretion, Appellate Jurisdiction, Final Judgment Rule, Interlocutory Orders, Courts, Clerks of Court, Appellate Briefs, Notice of Appeal, State Court Review, Court Personnel, Relief From Judgments, Excusable Mistakes & Neglect, Procedural Matters