Vincent M. Dudley, as of the Estate of Robert J. Patton, and Rose Marie Patton v. Penn-America Insurance Company

313 F.3d 662, 54 Fed. R. Serv. 3d 57, 2002 U.S. App. LEXIS 24618, 2002 WL 31730588
CourtCourt of Appeals for the Second Circuit
DecidedDecember 5, 2002
DocketDocket 01-9215
StatusPublished
Cited by30 cases

This text of 313 F.3d 662 (Vincent M. Dudley, as of the Estate of Robert J. Patton, and Rose Marie Patton v. Penn-America Insurance Company) 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
Vincent M. Dudley, as of the Estate of Robert J. Patton, and Rose Marie Patton v. Penn-America Insurance Company, 313 F.3d 662, 54 Fed. R. Serv. 3d 57, 2002 U.S. App. LEXIS 24618, 2002 WL 31730588 (2d Cir. 2002).

Opinions

POOLER, Judge.

Plaintiffs-Appellees Vincent M. Dudley, et al. (“Dudley”) moved to dismiss as untimely the appeal of defendant-appellant Penn-America Insurance Co. (“Penn-America”). As is sometimes the case, the procedural background of this case in the district court somewhat complicates the simple and straightforward answer to Dudley’s motion. Our path to the simple solution also is obscured by Dudley’s citation to our decision in Hodge v. Hodge, 269 F.3d 155 (2d Cir.2001) (per curiam), which seems to support its position even though that result would be in direct contravention of the Federal Rules - of Appellate Procedure. In the end, however, simplicity prevails, the rules are plain, and we deny Dudley’s motion.

BACKGROUND

On October 5, 2000, Dudley filed a lawsuit in federal court based on diversity jurisdiction. Dudley alleged that Penn-America failed to pay it pursuant to a New York State court judgment entered against Penn-America’s insured, a bar called 24K Solid Gold, Inc. In the underlying state court lawsuit, Dudley sued 24K Solid Gold, which defaulted, and the bar’s insurer, Penn-America, improperly disclaimed liability. As a result, Dudley alleged that Penn-America was “hable for payment of the judgment in the amount of $187,505.01, plus the appropriate statutory interest calculated from August 10, 2000.” In the complaint’s request for relief, plaintiff again asked the court to award $187,505.01 plus accrued interest and costs.

Penn-America' answered the federal complaint and defended the lawsuit. On December 12, 2000, Dudley moved for summary judgment. In the Notice of Motion for Summary Judgment, plaintiff asked the court to find, among other things, that Penn-America was liable for payment of the underlying state court judgment and interest accrued on that judgment from August 10, 2000. In a written decision and order, the district court granted plaintiffs motion and held that “plaintiffs are entitled to summary [664]*664judgment” because Penn-America failed to comply with New York State insurance law in disclaiming liability. The district court entered judgment on August 24, 2001 (the “Original Judgment”). Penn-America did not file a notice of appeal at that time. However, fewer than 10 business days later, on September 4, 2001, Dudley filed a motion for “Summary Judgment and Entry of Money Judgment” in which it asked the district court “[i]n furtherance of [its] prior decision,” to enter a money judgment against Penn-America in the amount of the underlying $187,505.01 judgment plus New York statutory prejudgment interest through August 30, 2001, of $16,921.68 plus additional statutory prejudgment interest of $50.40 “for those days elapsing between August 30, 2001 and the date of entry of judgment.” Dudley’s motion did not cite the procedural rule under which plaintiff sought relief. Although Penn-America asked for additional time to respond to the motion, it failed to do so.

In a written decision dated September 26, 2001, the district court granted Dudley’s motion in its entirety. It considered the motion as one filed pursuant to Fed. R.Civ.P. 60(a) to correct a clerical mistake arising from oversight or omission. Importantly, the district court held that “[i]t was the court’s clear intention at the time it filed its Decision and Order granting plaintiffs summary judgment, that all of the relief sought by plaintiffs, including that the court find (1) that the Penn-America disclaimer letter was invalid; (2) that Penn-America was liable for payment of the judgment as entered in the New York State Supreme Court; and (3) that Penn-America was liable for interest accrued on said judgment from August 10, 2000, be granted.” The district court directed the clerk of the court to amend the final judgment in the case to include the entry of a money judgment against Penn-America.

The clerk entered the order to amend the judgment on September 26, 2001 (the “Amended Judgment”) but never entered a separate amended judgment. Penn-America then filed a notice of appeal on October 12, 2001, from the district court’s August 24, 2001, decision and order, the Original Judgment, and the Amended Judgment. Penn-America subsequently posted a supersedeas bond in the district court. On October 19, 2001, Penn-America filed an amended notice of appeal to include the district court’s order awarding Dudley $150 in costs.

By a notice of motion filed on December 26, 2001, Dudley moved in this court to dismiss Penn-America’s appeal as untimely because defendant filed its notice of appeal in district court more than 30 days after entry 'of the district court’s Original Judgment. Penn-America opposed the motion, which we considered on submission.

DISCUSSION

Dudley contends that we lack jurisdiction to hear Penn-America’s appeal because Penn-America filed its notice of appeal more than 30 days after the entry of the Original Judgment and “[defendant’s time for filing a notice of appeal was not extended pursuant to Fed. R.App. P. 4(a), nor otherwise.” Specifically, Dudley argues that because the Amended Judgment made no substantive changes to nor resolved any genuine ambiguities in the Original Judgment, it was a clerical correction with no tolling effect on the time for filing a notice of appeal. Dudley relies on our decision in Hodge v. Hodge, 269 F.3d 155 (2d Cir.2001).

Penn-America responds that the district court erred in characterizing the Amended Judgment as having made a clerical correction under Rule 60(a) because it con[665]*665tained substantive changes requiring factual determinations and affecting the parties’ rights in its award of a money judgment and prejudgment interest. Penn-America claims that the district court should have treated Dudley’s motion under Fed. R.Civ.P. 59(e), which concerns motions to alter or amend judgments. Penn-America notes, however, that regardless of whether Dudley’s motion was under Rule 59(e) or Rule 60(a), Fed. R.App. P. 4(a)(4)(A)(iv) or (vi) extended Penn-America’s time to file a notice of appeal.

We conclude that- the plain language of the Federal Rules of Appellate Procedure compels us to find that Penn-America’s notice of appeal was timely. In general, a party must file its notice of appeal “within 30 days after the judgment or order appealed from is entered.” Fed. R.App. P. 4(a)(1)(A). However, some motions have the effect of tolling this 30-day period. Under Fed. R.App. P. 4(a)(4)(A), “[i]f a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion.” The rule then lists six kinds of motions.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
313 F.3d 662, 54 Fed. R. Serv. 3d 57, 2002 U.S. App. LEXIS 24618, 2002 WL 31730588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-m-dudley-as-of-the-estate-of-robert-j-patton-and-rose-marie-ca2-2002.