Republic of China v. National City Bank

14 F.R.D. 186, 1953 U.S. Dist. LEXIS 3808

Opinion

IRVING R. KAUFMAN, District Judge.

The motion for leave to reargue and for leave to amend the counterclaims and for other relief is denied. The opinion in the instant case was filed on December 22, 1952, 108 F.Supp. 766. The order of this Court dismissing the counterclaims was filed on January 9, 1953 and judgment was entered on that date. Regardless of whether Rule 9(h) of the General Rules for the Southern District of New York or Rule 59 of the Federal Rules of Civil Procedure, 28 U.S.C.A., govern the time within which this motion for reargument might be brought, it is clear that this motion is untimely. The motion for leave to amend stands in no better position than the motion for reargument for “ * * * the judgment of dismissal should be reopened before an amendment to the complaint [here a counterclaim] is granted. Such relief can be sought within ten days under Federal Rules of Civil Procedure, rule 59, 28 U.S.C.A. * * Markert v. Swift & Co., 2 Cir., 1949, 173 F.2d 517, 519. Moreover, the petitioner has filed an appeal from the judgment, so that this Court now lacks power to grant the relief sought. Daniels v. Goldberg, D.C.S.D.N.Y.1948, 8 F.R.D. 580, affirmed 2 Cir., 1949, 173 F.2d 911.

Motions denied.