Opinion
1:24-CV-1284 (LTS)
07-29-2024
JOSEPH H. MASRI, Plaintiff, v. SHIMEN LIEBOWITZ, et al., Defendants.
ORDER
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE.
By order dated April 15, 2024, and entered the next day, on April 16, 2024, the Court dismissed this pro se action, but granted Plaintiff 30 days' leave to replead his claims in an amended complaint, as specified in that order. (ECF 4.) In an order dated May 17, 2024, and entered on May 21, 2024, the Court granted Plaintiff's request for a 60-day extension of time to file an amended complaint, as specified in the Court's April 15, 2024 order. (ECF 6.) On May 16, 2024, however, one day before that order was issued, Plaintiff filed a notice of appeal in the United States Court of Appeals for the Second Circuit. (ECF 7.) While this Court regards the notice of appeal as having been filed in this court on that date, see Fed. R. App. P. 4(d), it was not entered on this court's docket of this action until June 3, 2024. (Id.) In that notice of appeal, Plaintiff asserts that he is appealing from this Court's April 15, 2024 “final order.” (Id.) In a letter filed on July 23, 2024, and entered one day later, on July 24, 2024, Plaintiff filed a letter with this court requesting another extension of time, “due to the ongoing appeal of this case.” (ECF 9, at 1.)
For the reasons discussed below, the Court retains jurisdiction of this action, despite the filing of Plaintiff's notice of appeal. The Court grants Plaintiff another 60-day extension of time to file an amended complaint, as specified in the Court's April 15, 2024 order.
DISCUSSION
A. The Court retains jurisdiction of this action
The Court retains jurisdiction of this action, despite Plaintiff's filing of his notice of appeal. Normally, “[t]he filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). “The divestiture of jurisdiction rule is, however, not a per se rule. It is a judicially crafted rule rooted in the interest of judicial economy, designed ‘to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.'” United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (quoting United States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989)). For example, the rule “does not apply where an appeal is frivolous[,] [n]or does it apply to untimely or otherwise defective appeals.” China Nat'l Chartering Corp. v. Pactrans Air & Sea, Inc., 882 F.Supp.2d 579, 595 (S.D.N.Y. 2012) (internal quotation marks and citation omitted, alterations in original).
Normally, appeals are taken from final orders of the district court. See 28 U.S.C. § 1291; Rodgers, 101 F.3d at 251 (“With limited exceptions not relevant in this case, the jurisdiction of federal courts of appeals is limited to appeals from final decisions of the district courts.” (citing § 1291)). “Final decisions are those that end the litigation on the merits, leaving nothing for the court to do but execute the judgment.” Id. (citing Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989)). “A district court may permit an interlocutory appeal of a non-final order[,] [however,] if the order ‘involves a controlling question of law as to which there is substantial ground for difference of opinion' and ‘an immediate appeal from the order may materially advance the ultimate termination of the litigation.'” De Jesus v. Oyshi Table Corp., No. 19-CV-0830 (JPC), 2021 WL 1791478, at *3 (S.D.N.Y. May 5, 2021) (quoting 28 U.S.C. § 1292(b)). Yet
[i]nterlocutory appeals are disfavored since “[i]t is a basic tenet of federal law to delay appellate review until a final judgment has been entered . . . [and] although [the statute authorizing interlocutory appeals, 28 U.S.C. § 1292,] was designed as a means to make an interlocutory appeal available, it is a rare exception to the final judgment rule that generally prohibits piecemeal appeals.”Pen Am. Ctr., Inc. v. Trump, No. 18-CV-9433 (LGS), 2020 WL 5836419, at *1 (S.D.N.Y. Oct. 1, 2020) (quoting Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996) (second and third alterations in original)).
Among other types of interlocutory orders, the Court of Appeals has jurisdiction to consider “interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1292(a). In addition:
[w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an [interlocutory] appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.28 U.S.C. § 1292(b). “The ultimate decision of whether to certify an interlocutory appeal ‘is entirely a matter of discretion for the district court.'” Pen. Am. Ctr. Inc., 2020 WL 5836419, at *1 (quoting In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 36 (2d Cir. 2014)).
Plaintiff seeks to appeal the Court's April 15, 2024 order (see ECF 7), which dismissed this action in which Plaintiff seeks damages, injunctive relief, and declaratory relief, but also granted him leave to replead his claims, as specified in that order (see ECF 4). In his notice of appeal, Plaintiff refers to the Court's April 15, 2024 order as a “final order.” (ECF 7.) It is not a final order, however, because “[a] dismissal with leave to amend is a non-final order and not appealable.” Slayton v. Am. Express Co., 460 F.3d 215, 224 (2d Cir. 2006). Thus, it appears that Plaintiff is attempting to apply to bring an interlocutory appeal.
This Court does not certify Plaintiff's appeal as an interlocutory appeal. While the Court may construe Plaintiff's filing of his notice of appeal as an application to file an interlocutory appeal, see Mei Xing Yu v. Hasaki Rest., Inc., 874 F.3d 94, 97 (2d Cir. 2017) (construing a notice of appeal filed in the district court within the 10-day period to file an application for an interlocutory appeal to be a timely filed application to file an interlocutory appeal), the Court's April 15, 2024 order did not state that it “involve[d] a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” § 1292(b).
In addition, to the extent that Plaintiff's notice of appeal serves as such an application, it is untimely. Such an application must be filed within 10 days after entry of the challenged order. See § 1292(b). The challenged order here was entered on April 16, 2024. Thus, Plaintiff had until April 26, 2024 to file such an application. Here, he did not file his notice of appeal with the Court of Appeals until May 16, 2024.
Accordingly and alternatively, Plaintiff's appeal is plainly defective; this Court thus retains jurisdiction of this action. See Rodgers, 101 F.3d at 252 (deeming a notice of appeal from a non-final order to be “premature” and a “nullity,” and holding that the notice of appeal did not divest the district court of jurisdiction); Slayton, 460 F.3d at 224; China Nat'l Chartering Corp., 882 F.Supp.2d at 595; Gortat v. Capala Bros., Inc., No. 07-CV-3629, 2008 WL 5273960, at *1 (E.D.N.Y. Dec. 18, 2008) (Gold, M.J.) (“An exception . . . [to the general rule that an appeal deprives a district court of jurisdiction] applies where it is clear that the appeal is defective, for example, because the order appealed from is not final and has not been certified for an interlocutory appeal. A district court may ignore an appeal from a non-appealable order and proceed to exercise jurisdiction over a case.” (citation omitted)), aff'd, 568 Fed.Appx. 78 (2d Cir. 2014) (summary order); see also Ruiz v. United States, No. 1:23-CV-7421 (LTS), 2024 WL 3105005, at *1 (S.D.N.Y. June 24, 2024) (“Plaintiff appeals from this Court's order of dismissal with leave to replead. Such an order is not a final order. Because Plaintiff is attempting to appeal from a nonfinal order that has not been certified for interlocutory appeal, the notice of appeal is ‘premature' and a ‘nullity.' Accordingly, this Court retains jurisdiction of this action.” (citations omitted)).
B. Extension of time
The Court grants Plaintiff's latest request for an extension of time to file an amended complaint, as specified in the Court's April 15, 2024 order. (ECF 9.) Plaintiff must file an amended complaint, as specified in the Court's April 15, 2024 order, within 60 days of the date of this order. If Plaintiff fails to comply within the extended time allowed, the Court will direct the Clerk of Court to enter a judgment dismissing this action for the reasons set forth in the Court's April 15, 2024 order. No further extensions of time will be granted.
CONCLUSION
The Court retains jurisdiction of this action, despite the Plaintiff's filing of a notice of appeal.
The Court grants Plaintiff's latest request for an extension of time to file an amended complaint, as specified in the Court's April 15, 2024 order. (ECF 9.) Plaintiff must file an amended complaint, as specified in the Court's April 15, 2024 order, within 60 days of the date of this order. If Plaintiff fails to comply within the extended time allowed, the Court will direct the Clerk of Court to enter a judgment dismissing this action for the reasons set forth in the Court's April 15, 2024 order. No further extensions of time will be granted.
SO ORDERED.