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noting that an assertion that the plaintiff did not receive service of the judgment while his notice of appeal would have been timely might constitute excusable neglect under Rule 60[b] and remanding to the district court to rule explicitly on that question
Summary of this case from Eldars v. Shao LinOpinion
No. 06-2847-cv.
February 9, 2007.
Appeal from the United States District Court for the Southern District of New York (Brieant, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal from judgment of said District Court be and it hereby is DISMISSED as untimely, without prejudice to reinstatement should the District Court extend the time for filing a notice of appeal on remand, and the appeal from the decision on the motion to vacate the judgment is AFFIRMED IN PART and REMANDED for further proceedings consistent with this decision.
Ferdinand C. Scaglione, Jr., pro se, Yonkers, NY, for Appellant.
Mark C. Rushfield, Shaw Perelson, LLP, Highland, NY, for Appellees.
SUMMARY ORDER
Plaintiff-appellant Francis C. Scaglione ("Scaglione") appeals from the October 31, 2005, judgment of the United States District Court for the Southern District of New York (Brieant, J.), dismissing the action without prejudice to filing suit in state court, and from another order dated December 16, 2005, dismissing Scaglione's motion for relief under Federal Rule of Civil Procedure 60(b). We assume the parties' familiarity with the facts, procedural history, and specification of issues on appeal.
Scaglione filed his notice of appeal from the judgment on December 28, 2005. Because this notice was not filed within thirty days, it was untimely. See Fed.R.App.P. 4(a)(1). Filing deadlines are mandatory. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). Even if this court construes Scaglione's pro se filings liberally as a request for an extension of the filing deadlines, this court is forbidden from doing so. See Fed.R.App.P. 26(b)(1); see also Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir. 1986) (court of appeals "has no power whatever to extend the deadline for filing the notice of appeal").
Scaglione's notice of appeal is timely with respect to the District Court's decision on his motion for relief from judgment. We find no abuse of discretion in the District Court's conclusion that Scaglione's Rule 60(b) motion did not make the necessary showing of "extraordinary circumstances or extreme hardship that warrant relief from judgment." Fed.R.Civ.P. 60(b)(6). However, construing Scaglione's notice of appeal liberally — as we must, see Marrero Pichardo v. Ashcroft, 374 F.3d 46, 54-55 (2d Cir. 2004), it raises the issue of whether the District Court should have construed his Rule 60(b) motion as a request to allow an otherwise untimely appeal from judgment. See Fed.R.App.P. 4(a)(6). Since Scaglione asserts that he did not receive service of the judgment while notice of appeal would have been timely, which if true may constitute excusable neglect, see Ryan v. First Unum Life Ins. Co., 174 F.3d 302 (2d Cir. 1999) this is a rational construction of his argument. Because it is not clear whether the district court considered Scaglione's Rule 60(b) as a request to permit a late notice of appeal, we remand to the District Court so that it may rule explicitly on this request.
Accordingly, for the reasons set forth above, the appeal from the judgment is DISMISSED without prejudice and the decision of the District Court on the motion to vacate the judgment is hereby AFFIRMED IN PART and REMANDED for further proceedings consistent with this order.