06-5474-bk

In re America

n Safety I ndemnity Company

1 The Honorable William H. Pauley I II , United States District Judge for the Southern District of New York, sitting by designation. 1 UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SECOND CIR CUIT August Term, 2006 (Submitted: May 22, 2007 Decided: September 6, 2007) Docket No. 06-5474-bk

_____________________________________________ I N R E A MERI CAN S AFETY I NDEMNITY C OMPANY A MERI CAN S AFETY I NDEMNITY C OMPANY , Appellant ,

v. O FFICIAL C OMM ITTEE O F U NSECURED C REDITORS , ET AL ., Appellees

.

____________________________________ Befor e: W ALKER

AND C ABRANES , Circuit Judges , and P AULEY , District Judge. 1 Appellee moves to dismiss appellant’s appeal on the ground that it is untimely

. Appellant argues (1) that the time limit for filing a notice of appeal in the instant case should run from the date that a corrected judg ment was entered by

the District Court, and (2) that, in any e

vent, the “unique circumstances” doctrine per mits appellate jurisdiction here, where a “law cle

rk” allegedly

told appellant that the time limit would run from the correc ted judg ment. Appeal dismissed. M ARK L. A NT IN , Gennet , Kallman

n, Antin & Robinson PC, New York, New York, for Appell ant. J ONATHAN E. P OLONSKY , Thelen Reid Bro wn R aysm an & St ein er LL,2 New York, New York, for Appellee Official Committee

of Unsec ured Cred

itors P ER C URIA M : 1 2 Appellee the Official Committee of Unsecured Creditors of Vanderveer Estates 3 Holdings LL C (the “Committee”) moves to dismiss as untimely an appea l of Appellant 4 American Safety

Indemnity

Company (“ASIC”) from a final judgment of the United 5 States District Court for the Eastern District of New York. For the f ollowing reasons, the 6 Committee’s motion is granted. 7 BACKGROUND 8 On April 13, 2004, the Committee removed this personal injury a ction from the 9 New York State Supreme Court to the United States Bankruptcy Court for the Eastern 10 District of New York. In a decision memorandum dated July 20, 2005, the bankruptc y 11 court granted summary judgment dismissing ASIC’s claims. The cler k of the bankruptcy 12 court docketed an order and judgme nt on August 31, 2005 (the “Bankruptcy Order”), and 13 ASIC app ealed t hat ju dgment to th e dist rict c ourt. On Oct ober 3 , 2006 , the d istr ict j udge 14 affirmed the Bankruptcy Order in an opinion and order. On October 12, 2006, the district 15 court entered a judgment which stated that the “ July 20, 2005 order and judgment of the 16 Bankruptcy

Court [is] affirmed in all respects” (the “Original Judgment”). Ther eafter, 17 the distri ct court

amended the Original Judgment on October 26, 2006 by chang ing its 18 reference to the date of the B ankruptcy Or der from July 20, 2005 to August 31, 2005 (the 19 “Corrected Judgment”). Apart from corr ecting the date, the Original and Corr ected 20 Judgments are identical in all material respects. 21 After receiving the Correc ted Judgment, ASIC’s counsel telephoned the district 22 judge’s chambers to inquire whether the time to appe al ran from the Original Judgment 233

or the Corrected Judgment. ASIC asser ts that the judge’s law clerk indicated that an 1 appeal would lie from the Corrected Judgment. Purportedly relying on the law clerk’s 2 representation, counsel for ASI C filed its notice of appeal on November 27, 2006 (the 3 “Notice of Appeal”). 4 The Committee moves to dismiss ASIC’s appeal for lack of appe llate jurisdiction 5 on the g

round tha t the Notic e of Appe al was un timely filed. F or the fo llowing r easons, 6 we grant the Committee’s motion to dismiss. 7 8 DISCUSSION 9 Federal Rule of Appellate Procedure 4(a)(1) provides, with exceptions not 10 relevant here, that a notice of appea l in a civil case must be filed within 30 days of entry 11 of the jud

gment f rom which

the appe al is take

n. Fed. R . App. P. 4( a)(1). “[T]he time ly 12 filing of a notice of appeal in a civil case is a jurisdictional requirement.” See Bowles v. 13 Russell, 127 S. Ct. 2360, 2366 (2007). “[W]hen an appeal is taken beyond the time set 14 out in the Rule, an appellate court is without jurisdiction to entertain and decide it.” Id. 15 ASIC a

rgues t hat the time to appe al ran f rom the Cor

rected Judgment b ecause

it 16 constitute d the “fi

rst prope r judgme nt” of the district c ourt. How ever, itis well17 established that “[w]here a judgment is reentered, and the subsequent judgment does not 18 alter the substantive rights affected by the first judgment, the time for appeal runs from 19 the first judgment.” Farkas v . Rumore , 101 F .3d 20 , 23 (2 d Cir . 1996 ) (cit ing FTC v. 20 Minneapolis-Honeywell Regulator Co. , 344 U.S. 2 06, 211-1 2 (1952)) ; see also Rezzonico 21 v. H&

R Block, Inc. , 182 F.3d 144, 150 (2d Cir. 1999) (“[O]nly when the lowe r court 22 chang es matter

s of substa

nce, or r esolves a genuine ambig

uity , in a judg

ment pre viously 234

rendered should the period within which an appeal must be taken . . . be gin to run anew.” 1 (quot ing FTC , 344 U.S. at 211-12)). 2 The district court issued the Original Judgment on October 12, 2006 and the 3 Correct

ed Judgme

nt on Octo

ber 26, 2 006. The l angua ge of the two judg

ments is 4 essentially the same e xcept for the clerical correction of the date of the Bankruptcy 5 Order. As such, the entry of the amended judgment did not substantively alter the 6 disposition of the Original Judgment. See Farkas v . Rumore , 101 F.3d 20, 22 (2d Cir. 7 1996) (a second judgment that is identical to the first but corrects only technical er rors 8 does not constitute a substantive change). Bec ause the Corrected Judgment “does not 9 differ from the [Original] in matters affecting the substantive rights of the parties, the 10 time to appeal runs from the first judgment.” Cody, Inc . v. Town of W oodbury , 179 F.3d 11 52, 55 (2d

Cir. 1999) ; see also Farkas , 101 F.3d at 22 (absent substantive changes, the 12 reentry

of a judgment does not restart the time for filing a notice of appeal). Since the 13 Notice of Appeal was filed on November 27, 2006, more tha n 30 days afte

r the Original 14 Judgment, it was untimely. 15 In the alternative, ASIC asserts that the exceptional facts of this case compel the 16 application of the “unique circumstances” doctrine, r elaxing the strict enforcement of the 17 Federal Rules of Appellate Procedure and rendering this appeal timely

. See, e.g., 18 Thompson v

. INS , 375 U.S. 3 84, 387 (1 964) (pe r curia m); Harris Truck Lines, Inc. v. 19 Cherry Meat Packers, Inc. , 371 U.S. 215, 217 (1962) (per curiam). However, the 20 Supreme Court has expressly abrogated that doctrine. See Bowles , 127 S. Ct. at 2366 21 (“[W]e overrule Harris Truck Lines and Thompson to the exten t they purp ort to

auth orize 22 an exception to a jurisdictional rule.”). 235 The wisdom of Bowles is confirmed in this case by the mischief that would be 1 spawned

by e xcusing un

timelines s on the ba sis of law clerk sta tements. L

itigants should 2 not seek l egal a

dvice fr om judge s or judic ial staff , and in an

y c ase, att orney s should 3 know better than to rely on such advice. Moreover, ad hoc inquiries regarding purported 4 advice are difficult to conduct, lead to uncer tain results and meddle in the internal 5 workings of judges’ chambers. 6 CONCLUSION 7 Accordingly , we lack appellate jurisdiction to review the district court’s 8 affirma

nce of the Bankr

uptcy Order a nd gra nt the Commit

tee’s mot ion to dismis s. 9 10