Book v. Dettenrieder

14 F. App'x 40
CourtCourt of Appeals for the Second Circuit
DecidedJune 28, 2001
DocketNo. 00-9478
StatusPublished
Cited by1 cases

This text of 14 F. App'x 40 (Book v. Dettenrieder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Book v. Dettenrieder, 14 F. App'x 40 (2d Cir. 2001).

Opinion

SUMMARY ORDER

This cause came on to be heard on the record from the United States District Court for the Northern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the appeal be and it hereby is dismissed for lack of appellate jurisdiction.

Plaintiff Cori Book, whose wrist was fractured in a collision between her bicycle and defendant’s truck, and who was awarded $1,335 in out-of-pocket medical expenses by a jury in the United States District Court for the Northern District of New York before Frederick J. Scullin, Jr., Chief Judge, appeals “from only that portion of the civil judgment after jury verdict ... which awarded no damages to plaintiff for past and future pain and suffering.” (Book notice of appeal dated November 6, 2000.) On appeal, Book contends that she should have been granted a new trial because she was entitled to an award for pain and suffering. For the reasons that follow, we dismiss the appeal for lack of appellate jurisdiction.

Final judgment in this matter was entered on July 25, 2000. Book’s notice of appeal was filed in November. Under Fed.R.App.P. 4(a)(1)(A), the deadline for appeal was August 24, 2000, unless extended in accordance with the Federal Rules of Appellate Procedure. Book contends that her appeal deadline was extended pursuant to Fed.R.App.P. 4(a)(4)(A)(v) because she moved in the district court for a new trial pursuant to Fed.R.Civ.P. 59(a). We disagree. A Rule 59 motion extends the appeal deadline only if the motion is “timely,” Fed.R.App.P. 4(a)(4)(A). To be timely, a Rule 59(a) motion for a new trial must be made within 10 days, as calculated under Fed.R.Civ.P. 6(a), after the entry of judgment. See Fed.R.Civ.P. 59(b). While Book contends that her Rule 59 motion, filed on August 10, i.e., beyond the 10-day period, was timely because the district court granted her an extension of time to make such a motion, the court had no power to grant such an extension. The [42]*42Federal Rules of Civil Procedure, while allowing enlargements of time to perform many acts, see Fed.R.Civ.P. 6(b), provide that, except in circumstances not pertinent here, the district court “may not extend the time for taking any action under Rule[ ] ... 59(b),” Fed.R.Civ.P. 6(b). See, e.g., Rodick v. City of Schenectady, 1 F.3d 1341, 1346 (2d Cir.1993) (“Rodick”) (no power to extend time for motions under Fed.R.Civ.P. 50(b) and 59(a)); see also Lichtenberg v. Besicorp Group Inc., 204 F.3d 397, 401 (2d Cir.2000) (no power to grant consented-to motion for extension of time to move for reconsideration under Fed.R.Civ.P. 59(e)). Accordingly, the district court’s unauthorized extension of the time to make a Rule 59(a) motion did not extend Book’s time to appeal, see, e.g., Rodick, 1 F.3d at 1346, and the court’s mistaken view of its authority does not excuse the late filing of the notice of appeal, see, e.g., Mendes Junior International Co. v. Banco Do Brasil, S.A., 215 F.3d 306, 315 (2d Cir.2000). “In the absence of exceptional circumstances, each party is responsible for knowing the pertinent procedural rules and principles and for taking such steps as are needed to protect its own interests.” Endicott Johnson Corp. v. Liberty Mutual Insurance Co., 116 F.3d 53, 57 (2d Cir.1997); see also Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S. Ct. 987, 103 L.Ed.2d 146 (1989); Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam); Rodick, 1 F.3d at 1347. No exceptional circumstances have been shown here. Accordingly, Book’s August 10 motion did not extend her August 24 appeal deadline.

Following our inquiry into the timeliness of this appeal at oral argument, the parties submitted letter briefs on the question of appellate jurisdiction, and Book’s attorney Arthur J. Siegel stated that he recalled making an oral motion for a new trial immediately after verdict. (See letter from Arthur J. Siegel to this Court dated May 8, 2001, at 1.) However, the trial transcript contains no mention of such a motion; Siegel’s letter states that “a transcript has not been made of the proceedings immediately after verdict” (id.); and apparently no steps were taken to have a transcript made. Finding no support in the record as to the accuracy of Siegel’s recollection, and having no way to assess the sufficiency of whatever postverdict statement he made, we cannot conclude that there was a timely oral new-trial motion that extended the time to appeal. Accordingly, the present appeal is untimely, and we therefore lack jurisdiction to entertain it, see Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978).

In any event, if we had jurisdiction to hear Book’s appeal, we would conclude that it is without merit. Contrary to Book’s contention, New York law does not require a jury to make an award for pain and suffering whenever it awards medical expenses. See generally Ordway v. Columbia County Agricultural Society, 273 A.D.2d 635, 636-37, 709 N.Y.S.2d 691, 693-94 (3d Dep’t 2000) (“The amount of damages to be awarded for pain and suffering is primarily a question of fact and considerable deference should be accorded to the interpretation of the evidence by the jury,” and the jury’s verdict should not be disturbed unless it “could not have been reached on any fair interpretation of the evidence”). To the extent that Book argues that the jury’s determination that she should not receive damages for pain and suffering was against the weight of the evidence, her contentions are not reviewable. See, e.g., Robinson v. Cattaraugus County, 147 F.3d 153, 160 (2d Cir.1998); Dailey v. Societe Generale,

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Bluebook (online)
14 F. App'x 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/book-v-dettenrieder-ca2-2001.