Perez v. Communications Workers

210 F. App'x 27
CourtCourt of Appeals for the Second Circuit
DecidedNovember 8, 2006
DocketNos. 05-5916-cv, 05-6143-cv
StatusPublished
Cited by2 cases

This text of 210 F. App'x 27 (Perez v. Communications Workers) 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
Perez v. Communications Workers, 210 F. App'x 27 (2d Cir. 2006).

Opinion

SUMMARY ORDER

Plaintiff-Appellant Wilfredo Perez, appearing pro se, appeals from the judgment of the United States District Court for the Eastern District of New York (Trager, /.) entered on September 7, 2005 granting the Defendants summary judgment on Perez’s claims under Title VII. Defendant-Appellee-Cross-Appellant NYNEX / Bell Atlantic / Verizon (“Verizon”) appeals from the October 12, 2005 order deeming Perez’s “Notice of Motion for Extension of Time” to be a timely notice of appeal to this Court.

We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

(1) Verizon contends the district court abused its discretion when it deemed Perez’s “Notice of Motion for Extension of Time” to be a proper notice of appeal under Fed. R.App. P. 3(c) after granting [29]*29Perez an extension of time to file a notice of appeal under Fed. R.App. P. 4(a)(5).

Where the United States is not a party, a notice of appeal in a civil case must be filed within 30 days of the entry of judgment. Fed. R.App. P. 4(a)(1)(A). In the present case, no extension of time was needed for the filing of a notice of appeal. The motion that the district judge treated as Perez’s notice of appeal was, according to the district court’s order, filed on October 7, 2005. Both Verizon in its memorandum opposing Perez’s motion, and the district judge in stating that that motion would be untimely as a notice of appeal, erred in stating that the judgment had been entered on September 6. Instead, the district court file stamp on the judgment shows that the document was received on September 7, and the district court docket states that the judgment was entered on September 7. The time to appeal began on the date of entry of the judgment, not from the entry of the district court’s September 6 Memorandum and Order deciding defendants’ motions to dismiss. See, e.g., Fed.R.Civ.P. 58 (judgment must be entered on a separate document); RR Village Ass’n v. Denver Sewer Carp., 826 F.2d 1197, 1201 (2d Cir.1987) (time to appeal begins with entry of judgment in a separate judgment, not with entry of opinion dismissing the complaint). Thus, the document that the district court received on October 7 and treated as Perez’s notice of appeal was filed on the 30th day after the entry of judgment, i.e., within the time limit provided by Fed. R.App. P. 4(a)(1)(A).

While Perez’s motion for an extension of time did not explicitly state his intent to appeal and instead focused upon the possibility of a motion to reconsider, we see no abuse of discretion in the district court’s decision to deem it a notice of appeal. Under Fed. R.App. P. 3(c), a notice of appeal must specify the party taking the appeal, designate the judgment appealed, and name the court to which appeal is taken.

Courts will liberally construe the requirements of Rule 3.... Thus, when papers are “technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.”

Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992) (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), and citing Torres, 487 U.S. at 316, 108 S.Ct. 2405, and Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). And the Supreme Court has stated:

While a notice of appeal must specifically indicate the litigant’s intent to seek appellate review, ... the purpose of this requirement is to ensure that the filing provides sufficient notice to other parties and the courts.... Thus, the notice afforded by a document, not the litigant’s motivation in filing it, determines the document’s sufficiency as a notice of appeal. If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.

Smith, 502 U.S. at 248-49, 112 S.Ct. 678. Thus, this Court has treated as notices of appeal documents that were not denominated as such and that did not meet all of Rule 3’s technical requirements where those documents afforded notice sufficiently that the appellees were not prejudiced. See, e.g., Grune v. Coughlin, 913 F.2d 41, 43 (2d Cir.1990) (letter asking for district court’s assistance in determining correct manner of initiating appellate review constituted notice of appeal notwithstanding [30]*30its failure to mention the Court of Appeals); see also Haugen v. Nassau County Dep’t of Soc. Servs., 171 F.3d 136, 137-38 (2d Cir.1999) (per curiam) (deeming a letter requesting an extension of time to appeal to be itself a notice of appeal); Bradley v. Coughlin, 671 F.2d 686, 689 (2d Cir.1982) (informal motion for reconsideration which requested in the alternative the district court’s leave to file an appeal in forma pauperis constituted a valid notice of appeal). Here, Perez’s motion clearly-indicated that he was the party seeking review; and although his motion did not expressly designate the decision he wished to have revisited, Verizon clearly was not misled, as its memorandum in opposition to the motion noted that Perez sought reconsideration of the “judgment in favor of defendants.” Thus, Perez’s motion plainly gave defendants notice that he wished further consideration of the judgment dismissing his complaint. Since his motion was filed, as discussed above, within the time specified by Fed. R.App. P. 4, and we can see no resulting prejudice to the defendants, we conclude that it was within the discretion of the district court to treat Perez’s pro se motion as a notice of appeal.

(2) Perez brought Title VII claims against Verizon for discriminatory discharge, hostile work environment, religious discrimination, and retaliation for protected activity; his claim against the Communications Workers of America (“the Union”) was for breach of the duty of fair representation. This Court reviews the grant of summary judgment de novo, construing the evidence in the light most favorable to Perez as the non-movant. Dawson v. Bumble & Bumble,

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Cite This Page — Counsel Stack

Bluebook (online)
210 F. App'x 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-communications-workers-ca2-2006.