Daily Mirror, Inc. v. New York News, Inc., 555

Decision Date01 April 1976
Docket NumberNo. 555,D,555
Citation533 F.2d 53
Parties1976-1 Trade Cases 60,828 DAILY MIRROR, INC., Plaintiff-Appellant, v. NEW YORK NEWS, INC., et al., Defendants-Appellees. ocket 75-7450.
CourtU.S. Court of Appeals — Second Circuit

Robert W. Farrell, New York City, for plaintiff-appellant.

Mark D. Geraghty, New York City (Townley, Updike, Carter & Rodgers, Frederick D. Berkon, New York City, of counsel), for defendant-appellee New York News, Inc.

Barrett G. Kreisberg, White Plains, for defendant-appellee Harry Garfinkle.

Roy M. Cohn, New York City (Saxe, Bacon & Bolan, P. C., New York City, of counsel), for defendants-appellees American News Company, Inc., Union News Company, Inc. and Ancorp., Inc.

Before FEINBERG, OAKES and VAN GRAAFEILAND, Circuit Judges.

PER CURIAM:

On January 4, 1971, plaintiff corporation commenced publication of a tabloid newspaper, the Daily Mirror, designed to compete with the Daily News. Almost from its inception, the Mirror encountered difficulties in distributing its papers to newsstands. 1 Accordingly, in March 1971, plaintiff filed suit in the United States District Court for the Southern District of New York against the News, three companies engaged in the distribution of newspapers and Harry Garfinkle, a principal of these companies, alleging a conspiracy to drive plaintiff out of business by impeding the distribution of its newspaper. The complaint charged the defendants with violations of Sections 1 and 2 of the Sherman Antitrust Act, 2 the state antitrust laws and common law, and demanded ninety million dollars in damages.

Although defendants answered the complaint and served interrogatories in April 1971, plaintiff made no effort to press its lawsuit. It was not until two years later, when it was faced with the trial judge's threat to dismiss the action for failure to prosecute, that plaintiff finally responded to these interrogatories.

In March 1975, following another two years of markedly little progress, this action was reassigned to Judge Frankel under the Southern District's Plan for the Reallocation and Disposition of Three-Year Old Civil Cases. In accordance with the Plan, a pretrial conference was held on March 26, and a trial date of June 9, 1975 was set. During the course of this conference, defendants sought permission to move for summary judgment. Although Judge Frankel felt that antitrust cases were among the least likely candidates for summary adjudication, he consented to hear the motion and set a schedule for submission, requiring moving papers by May 5 and answering papers by May 27. Defendants' motion papers were timely submitted.

On May 29, in response to an inquiry from Judge Frankel's chambers, plaintiff's counsel stated that he had decided not to file any answering papers but that, instead, he was filing an affidavit seeking Judge Frankel's withdrawal from the case because of his "bias and prejudice". On June 2, Judge Frankel wrote the parties advising them that he was seriously considering granting summary judgment "against the defaulting plaintiff" although he planned to give full attention to its recusal motion.

On June 9, 1975, Judge Frankel issued an opinion denying the recusal motion, granting summary judgment for the defendant and, in the alternative, dismissing plaintiff's suit for failure to prosecute. No notice of appeal was filed from this decision. Instead, plaintiff moved to vacate pursuant to Fed.R.Civ.P. 60(b). 3 On July 3, this motion was denied without opinion. On July 29, plaintiff filed a notice of appeal, listing the July 3 decision alone as the subject of its appeal. Although some three months later plaintiff sought to amend its notice of appeal to encompass the June 9 decision as well, the inefficacy of this procedure is apparent.

While a mistake in designating the judgment appealed from is not invariably fatal so long as the intent to appeal from a specific judgment can be fairly inferred, Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222, 225 (1962); Terkildsen v. Waters, 481 F.2d 201, 206 (2d Cir. 1973), plaintiff's noncompliance with Fed.R.App.P. 4(a) prevents it from benefiting from this liberal standard. A motion for relief under Rule 60(b) does not terminate the running of the time for appeal set forth in Rule 4(a), Pulliam v. Pulliam, 156 U.S.App.D.C. 25, 478 F.2d 935, 937 n.6 (1973); 9 J. Moore, Federal Practice P 204.12(1) (2d ed. 1973). 4 Consequently the July 29 notice of appeal was not timely filed with respect to the June 9 decision. Indeed, plaintiff's counsel conceded at oral argument that only Judge Frankel's denial of the 60(b) motion was properly before us for appellate review.

An order denying relief under Rule 60(b) is an appealable order, but the appeal brings up only the correctness of the order itself. Hines v. Seaboard Air Line R.R. Co., 341 F.2d 229 (2d Cir. 1965); Wagner v. United States, 316 F.2d 871 (2d Cir. 1963). It does not permit the appellant to attack the underlying judgment for error that could have been complained of on direct appeal. Sampson v. Radio Corp. of America, 434 F.2d 315, 317 (2d Cir. 1970); 9 J. Moore, Federal Practice, supra, P 204.12(1). Moreover, the denial of a motion to vacate will be reversed only upon a clear showing of an abuse of discretion, Sampson v. Radio Corp. of America, supra; Hines v. Seaboard Air Line R.R. Co., supra; Wagner v. United States, supra, and plaintiff has utterly failed to make such a showing.

Plaintiff's counsel knew a full week prior to the June 9 decision that the trial judge was seriously considering granting defendants' motion for summary judgment as a consequence of his failure to respond thereto. Nonetheless, he failed to take any action to remedy the situation. 5 It was only after Judge Frankel had issued his opinion and order that plaintiff sought to submit any responding papers. In the face of such dilatory conduct in a four year old lawsuit,...

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    • January 10, 1978
    ...however, and an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review. See Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53 (CA2), cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 140 (1976); Brennan v. Midwestern United Life Ins. Co., 450 F.......
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    ...provide. This was more than sufficient to satisfy the particularity requirement of Rule 7(b). Defendants cite Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53 (2nd Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 140 (1976), and Martinez v. Trainor, 556 F.2d 818 (7th Cir. 1......
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    ...from is not invariably fatal as long as the intent to appeal from a specific judgment can be fairly inferred." Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53, 56 (2d Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 140 (1976); see also Bankers Trust Co. v. Mallis, 435 U.S......
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    ...provide. This was more than sufficient to satisfy the particularity requirement of Rule 7(b). Defendants cite Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53 (2nd Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 140 (1976), and Martinez v. Trainor, 556 F.2d 818 (7th Cir. 1......
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