Casey v. Long Island R. Co., 04-4251-CV.

Citation406 F.3d 142
Decision Date28 April 2005
Docket NumberNo. 04-4251-CV.,04-4251-CV.
PartiesJames CASEY, Plaintiff-Petitioner, v. LONG ISLAND RAILROAD COMPANY, Defendant-Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael Flynn, Garden City, New York, for Plaintiff-Petitioner.

William J. Blumenschein, Jamaica, New York (Mary Jennings Mahon, General Counsel, Jamaica, New York, on the brief), for Defendant-Respondent.

Before: OAKES, KEARSE, and SACK, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiff James Casey has filed an appeal from so much of an interlocutory post-trial order of the United States District Court for the Southern District of New York, Richard Conway Casey, Judge, as granted the motion of defendant Long Island Railroad Company ("LIRR") for a new trial on certain issues unless plaintiff agrees to a remittitur. Treating the appeal as a petition for leave to appeal pursuant to 28 U.S.C. § 1292(b), we deny the petition.

BACKGROUND

Plaintiff brought the present action against LIRR under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., to recover for alleged on-the-job injuries. On September 12, 2002, a jury returned a special verdict apportioning liability between the two parties and finding that plaintiff had proven damages totaling $1.75 million, including $1.3 million for future pain and suffering. (See Trial Transcript ("Tr.") 304-05.) Immediately thereafter, LIRR renewed a prior motion for judgment as a matter of law and argued that, in any event, in light of the trial evidence, the jury's finding of $1.3 million for future pain and suffering was excessive. (See Tr. 305-06.) The trial court stated that it wished to have the motion in writing and that a briefing schedule would be set after counsel received the trial transcript.

The Federal Rules of Civil Procedure ("Rules") provided that "upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it." Fed.R.Civ.P. 58 (1993) (amended effective Dec. 1, 2002); see also Fed.R.Civ.P. 58(a)(2)(B)(i) (2002) ("when ... the jury returns a special verdict," "the court must promptly approve the form of the judgment, which the clerk must promptly enter"). Nonetheless, no judgment was entered on the September 12 2002 verdict. By letter dated October 11, 2002, plaintiff wrote to the district court, arguing that delaying the entry of judgment was inappropriate under the Rules because entry of judgment triggers the time both for the making of postjudgment motions and for the accumulation of postjudgment interest. Plaintiff asked the court to enter judgment on the September 12, 2002 verdict nunc pro tunc. The court apparently denied that request, and it ordered instead, citing Fed.R.Civ.P. 62, that "enforcement of judgment in this case is stayed pending determination of Defendant's motion for judgment as a matter of law." (District Court docket entry dated October 17, 2002.)

LIRR filed its new-trial motion papers on November 21, 2002. Plaintiff opposed the motion, both on the merits and on the ground that the court lacked jurisdiction to entertain the motion. In support of the latter argument, plaintiff argued that Rule 58 requires that the entry of judgment be prompt, that Rule 59(b) requires that any new-trial motion be filed within 10 days after the entry of judgment, that Rule 6(b) provides that the court may not extend the time for making a Rule 59(b) motion, and hence that the court had no authority to delay the entry of judgment in order to extend the Rule 59(b) deadline.

In a Memorandum & Order dated July 16, 2004 ("July Order"), the district court rejected plaintiff's challenge to its jurisdiction to entertain LIRR's motion, stating that it had "discretion to delay entry of judgment pending resolution of a post-trial motion." July Order at 4. As to the merits, the court ruled, inter alia, that the jury's finding of $1.3 million for future pain and suffering was so high as to shock the judicial conscience and hence must be set aside. The court ordered a new trial on that aspect of the verdict unless plaintiff accepts a remittitur of $1.3 million to $450,000.

On August 4, 2004, plaintiff filed a notice of appeal, seeking review in this Court of the conditional order for a new trial. Thereafter, apparently realizing that the July Order was not appealable either under 28 U.S.C. § 1291 as a final order or under 28 U.S.C. § 1292(a) as an injunctive order, the parties returned to the district court to seek certification for an immediate appeal pursuant to 28 U.S.C. § 1292(b). In an order dated October 21, 2004 ("October Order"), the district court granted a § 1292(b) certification. On October 26, 2004, plaintiff filed a brief on appeal arguing (1) that the district court had no power to extend the Rule 59(b) deadline for LIRR's new-trial motion and hence had no authority to entertain and grant that motion; and (2) that the jury had ample evidence to support its finding that plaintiff had proven damages amounting to $1.3 million for future pain and suffering, and hence that the verdict should not have been disturbed.

Prior to oral argument, this Court instructed the parties to be prepared to respond to questions as to why we should entertain this appeal.

DISCUSSION

For the reasons that follow, we conclude that the requirements for an immediate appeal pursuant to § 1292(b) are not met. That section provides, in pertinent part, that

[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 appeal to be taken from such order, if application is made to it within ten days after the entry of the order.

28 U.S.C. § 1292(b) (emphases added). This section, by its terms, thus imposes both procedural and substantive requirements on a would-be appellant. Neither set of requirements was entirely met in this case, although we excuse the procedural defect.

As a matter of procedure, after obtaining a proper § 1292(b) certification from the district court, the would-be appellant (a) must petition the court of appeals for permission to appeal, and (b) must do so within 10 days after entry of the district court's certification order. The district court's certification confers no right to appeal but only the right to petition the court of appeals to exercise its discretion to entertain an appeal.

Further, the Federal Rules of Appellate Procedure ("FRAP Rules") provide that when acceptance of an appeal is within the court of appeals' discretion, "[t]he petition must be filed within the time specified by the statute ... authorizing the appeal." Fed. R.App. P. 5(a)(2) (emphasis added). Thus, the "ten-day window" specified by § 1292(b) "is mandatory, not discretionary." Tranello v. Frey, 962 F.2d 244, 248 (2d Cir.1992). "It is beyond the power of this Court to enlarge" that period. Id.

In the present case, no petition for permission to appeal was filed. However, with respect to appeals as of right, the Supreme Court has instructed that when a party has filed papers that "are technically at variance with the letter of" FRAP Rule 3, which governs the filing of a notice of appeal, "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) (internal quotation marks omitted). In Smith, the Court held that "an appellate brief," filed before the deadline specified by FRAP Rule 4 for filing the notice of appeal, "may qualify as the notice of appeal required by [FRAP] Rule 3." Id. at 245, 112 S.Ct. 678,

In the present case, although plaintiff did not file a petition for leave to appeal, he did file in this Court, within 10 days after the district court's October certification order, his appellate brief. That brief is the functional equivalent of a petition for leave to appeal, and we will thus treat it as the requisite § 1292(b) application.

As to substance, however, we conclude that plaintiff's application does not meet the § 1292(b) criteria. To warrant our granting leave to appeal pursuant to that section, (a) the appeal must concern a question "of law," (b) that question must be one that is "controlling," and (c) that controlling question of law must be one "as to which there is substantial ground for difference of opinion." The two questions presented in plaintiff's brief are (1) whether the district court had the power to delay the entry of judgment so as to extend the Rule 59(b) deadline for LIRR to make its new-trial motion, and (2) whether the jury award for future pain and suffering was properly set aside as excessive. Neither issue meets all of the substantive § 1292(b) criteria.

As to the latter issue, plaintiff conceded at oral argument that the matter of the excessiveness of the jury's award does not present a question of law. Rather, it presents a question as to the proper evaluation of the evidence introduced at trial. That evaluation is not reviewed de novo, as a question of law would be, but rather is accorded deferential review, see, e.g., Reinertsen v. George W. Rogers Construction Corp., 519 F.2d 531, 532 (2d Cir.1975) (holding that an order granting a new-trial motion asserting excessiveness of the verdict may be reversed only where jury's award "was clearly within the maximum limit of a reasonable range" (emphasis in original) (internal quotation...

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