1 22

- 1716 Colbert v. Rio Tinto PLC



### 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

“ SUMMARY ORDER ” ). A PARTY CITING 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 1 2 t h da y of S e p t e m b e r , two thousand twenty

- three

. 3 4 P resent : 5 D EBRA A NN L IVINGSTON , 6 Chief Judge
, 7 J OSÉ A. C ABRANES , 8 M ARIA A RAÚJO K AHN , 9 Circuit Judges

. 10

_____________________________________ 11 12 A NTON C OLBERT , individually and on behalf of all 13 others similarly situated
, 14 15 Plaintiff

- Appellant
, 16 17

v. 22

- 1716 18 19 R IO T INTO PLC
, R IO T INTO L IMITED , T HOMAS A L20
BANESE , G UY R OBERT E LLIOTT 21 22 Defendant s

-

Appellees

. 23

_____________________________________ 24
For Plaintiff

- Appellant : K EVIN K. G REEN ( Steve W. Berman, Reed R. Kathrein, Lucas E. Gilmore
, on the brief ), Hagens Berman Sobol Shapiro LLP, Seattle, WA, Berkeley, CA, and San Diego, CA.2 For Defendant s

- Appellees Rio Tinto PLC and Rio Tinto Limited: M ARK A. K IRSCH ( Kellam M. Conover, on the brief ), King & Spalding LLP, New York, NY and Washington, D.C. Richard W. Grime, on the brief
, Gibson, Dunn & Crutcher LLP, Washington, D.C. Jennifer L. Conn, on the brief Paul Hastings LLP, New York, NY.

For Defendant

- Appellee Thomas Albanese : S ARAH L EVINE , ( James P. Loonam, Matthew J. Rubenstein, on the brief )
, Jones Day, Washington, D.C., New York, NY., and Minneapolis, MN.

For Defendant

- Appellee Guy Robert Elliott G EOFFREY R. C HEPIGA , ( Walter G. Ricciardi, on the brief ) , Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY.
1 2 Appeal from a February 7, 2022 order of the United States District Court for the Southern 3

District of New York ( Torres , J .)

. 4

UPON DUE CONSIDERATION , IT IS HEREBY ORD ERED, ADJUDGED, AND 5

DECREED that this appeal is DISMISSED as untimely

. 6

Plaintiff

- Appellant Anton Colbert (“Colbert”) brought this putative class action in the 7
United States District Court for the Southern District of New York (Torres, J. ), alleging that De8

fendants

- Appellants Rio Tinto PLC , Rio Tinto Limited (together, “Rio Tinto”)
, and two of Rio 9

Tinto’s former executives (together with Rio Tinto, the “Defendants”) violated §§ 10(b) and 20(a) 10
of the Securities Exchange Act of 1934, as well as Rule 10b

- 5 promulgated thereunder. See 15 11

U.S.C. §§ 78j(b), 78t(a); 17 C.F.R. § 240.10b

– 5. Colbert’s claims arise out of Rio Tinto’s pur12
ported coverup of losses arising from its failed investment in Rio Tinto Coal Mozambique 13
(“RTCM”), a 965

- square

- mile exploratory coal

- mining asset in Mozambique

. We assume the 143 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 1
appeal. 1 2

* * * 3

A brief recitation of the procedural history of this case is necessary to explain why we lack 4
jurisdiction over this untimely appeal . After Colbert filed the First Amended Complaint, the dis5
trict court granted the Defendants’ motion to dismiss and subsequently entered a final judgment of 6

dismissal. Colbert the n filed a motion for reconsideration pursuant to Federal Rule of Civil Pro7
cedure 59(e) , which the district court denied

. Colbert appealed from both the district court’s 8
judgment of dismissal and its reconsideration order

. On that first appeal, we expressly affirmed 9

the district court’s “June 4, 2019 order ”

— the judgment of dismissal

— and vacated and remanded the 10
district court’s “July 29, 2019 order ”

— the reconsideration order

— inso far as it related to a single mis11

statement (the “long

- term opportunity statement”) that the district judge ruled could sustain the SEC’s 12

securities fraud claims in its parallel enforcement proceeding

. Colbert I , 824 F. App’x at 6, 12. 13

More precisely, “ we vacate [d] and remand [ed] the district court’s denial of Colbert’s motion for re14

consideration to provide the district court an opportunity to address the merits of Colbert’s claim that 15

his complaint should be permitted to proceed with regard to this statement .” Id. at 12. On remand, 16
Colbert urged the court to “simply rule on the existing reconsideration motion, which [was] pend17
ing again as a result of the Court of Appeals[’s] decision.” App’x 214

. Thereafter, the district 18

court issued a written decision concluding that Colbert had failed to plead loss causation with 19

1 We have twice before recounted the subject matter of this dispute , once in a prior appeal in this case and again in a parallel SEC enforcement proceeding that remains pending before the same district judge as in this case

. See Sec. & Exch. Comm ’ n v. Rio Tinto plc , 41 F.4th 47, 49 (2d Cir. 2022) ; Colbert v. Rio Tinto PLC (“ Colbert I ”)
, 824 F. App’x 5 (2d Cir. 2020) (summary order)

. We incorporate by reference the relevant background in those related writings.4 respect to the long

- term opportunity statement. Colbert then noticed this appeal a pproximately 1

six months after the district court issued its order on remand

. 2
The Supreme Court has made “clear that the timely filing of a notice of appeal in a civil 3
case is a jurisdictional requirement.” Bowles v. Russell , 551 U.S. 205, 214 (2007). Generally 4
speaking
, pursuant to 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure 4(a)(1)(A), 5
“we have jurisdiction only if an aggrieved party appeals within 30 days after a district court issues 6

a final decision.” Amara v. Cigna Corp. , 53 F.4th 241, 247 (2d Cir. 2022)

. 2 This 30

- day time 7
limit applies to motions for reconsideration under Federal Rule of Civil Procedure 59(e). Fed. R. 8
App. P. 4(a)(4)(B)(ii). I f , however, the federal rules require that a judgment be set forth in a 9
separate document, and the district court does not do so, the judgment is deemed “ entered ” 150 10
days after the order in question, at which point the 30

- day time to appeal begins

. Fed. R. App. P. 11
4(a)(7)(A)(ii). As relevant here, Federal Rule of Civil Procedure 58 requires that a judgment be 12
“set out in a separate document” from the order ending a case, but that “a separate document is not 13
required for an order disposing of a motion” “for a new trial, or to alter or amend the judgment, 14
under Rule 59.” Fed. R. Civ. P. 58(a)(4). 15

Here, we must determine whether the order on appeal required the entry of a new judgment, so 16

as to trigger the extended timeframe of Federal Rule of Appellate Procedure 4(a)(7)(A)(ii)

. If it did, 17

then Colbert’s time to appeal began 150 days after the order’s entry

— that is, July 7, 2022

— and this 18

appeal is timely because he filed it on August 5, 2022, within 30 days of this date

. If, however, the 19

order on appeal resolved Colbert’s motion for reconsideration , he had 30 days from its entry

— until 20

2 By statute, a civil appeal must be filed “within 30 days.” 28 U.S.C. § 2107(a). Likewise, the federal rules require that a notice of appeal in a civil case “must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A).5 March 9, 2022

— to appeal. Fed. R. App. P. 4 (a) (1)(A) , (4) (A) (iv)

. Several features of the record 1

make clear that the district court’s order on remand resolved only Colbert’s motion for reconsideration 2

and
, thus
, did not require a separate written judgment. As such
, Colbert had 30 days from the entry 3

of the district court’s order to file this appeal , which deadline he exceeded by 149 days

. 4

First, the decretal language in our first appeal made clear that we were vacating and remanding 5
only a portion of the district court’s reconsideration order. See Colbert I
, 824 F. App’x at 12 ( “ Ac6

cordingly, we AFFIRM the June 4, 2019 order of the district court” and “VACATE and REMAND in 7
part the portion of [the July 29, 2019] order related to the ‘long

- term opportunity’ statement.” ). O ur 8
ruling in the prior appeal left undisturbed the district court’s final judgment of dismissal and remanded 9

the case to address only a portion of the district court’s reconsideration decision. 10

Furthermore, the district court on remand did not purport to reopen the final judgment on 11

the Defendants’ motion to dismiss . Rather, the court followed our explicit directive to reach the 12
merits of Colbert’s claim predicated on the long

- term opportunity statement, an issue Colbert pre13

sented for the first time in his motion for reconsideration

. See Colbert v. Rio Tinto Plc , No. 17 14

Civ. 8169 ( AT ) ( DCF ) , 2022 WL 355400, at *2 (S.D.N.Y. Feb. 7, 2022) ( explaining that the man15
date rule required the district to “only consider whether the ‘long

- term opportunity’ statement is 16

actionable ” ). Colbert urges that because the district court “DISMISSED” his complaint on re17

mand , this order required a separate judgment. T his dismissal , however, did not reopen the final 18
judgment that the district court had issued years prior ( and which we affirmed in full ) , but instead 19
reaffirmed the district court’s initial decision to dismiss Colbert’s complaint in light of arguments 20
he presented on his Rule 59 motion for post

- judgment relief. 21
Finally, Colbert expressly acknowledged to the district court during the proceedings on 22

remand that only his motion for reconsideration remained pending . After our decision in Colbert 236 I issued, the Defendants requested that the district court “set a briefing schedule on Colbert’s mo1
tion for reconsideration with respect to the long

- term opportunity statement

. ” App’x 212. Col2
bert opposed, arguing that the Defendants ’ request was “filed on the false premise that the Court 3
of Appeals’ order directed that [the district court] entertain a new motion for reconsideration.” 4

App’x 213. He stressed that “[t]he only reasonable reading of the opinion and mandate is that 5

the [district court] should simply rule on the existing reconsideration motion, which is now pend6
ing again as a result of the Court of Appeals[’s] decision. ” App’x 214 (emphasis added)

. We 7
agree with Colbert’s characterization of the remand order

. 8

I t is therefore clear that the order on appeal is from the denial of Colbert’s motion for recon9

sideration. Because the federal rules provide that orders on Rule 59 motions do not require a separate 10

judgment, Fed. R. Civ. P. 58(a)(4), Colbert had 30 days

— until March 9, 2022

— to file a notice of 11

appeal from the district court’s order on remand, Fed. R. App. P. 4 (a) (1)(A) , (4)(A)( i v) . Because he 12

did not notice this appeal until August 5, 2022, t his appeal is untimely. 13

* * * 14

We have considered Colbert’s remaining arguments and find them to be without merit

. 15
Accordingly, we DISMISS th is appeal as untimely

. 16

FOR THE COURT: 17 Catherine O ’ Hagan Wolfe, Clerk of Cour t 18