Farkas v. Rumore
| Decision Date | 22 November 1996 |
| Docket Number | D,No. 134,134 |
| Citation | 101 F.3d 20 |
| Parties | 153 L.R.R.M. (BNA) 2876, 36 Fed.R.Serv.3d 450 Lawrence M. FARKAS, Plaintiff-Appellant, Joseph M. Aemisego; Anthony R. Alfano; Jose Almeida; Charles Anderson; Mike Antonucci; Richard Arroyo; John Barone; Lawrence Bischofsberger; Richard Bottari; Andre J. Brown; John Calabro; George A. Calandrino; Pete Capuano; R. Caserta; Vincent Castronuovo; Thomas Clark; Marvin Clausell; Jerome D'Aguiar; Peter Dalton; Nick Defeis; Salvatore Demaria; Joseph Depaso; Donald Dickinson; Augustine Disalvo; Jose J. Escobar; Lawrence J. Faughnan; John Feltham; Chet Flower; Wilfred Foster; Michael Foti; Robert Galassi; Frank J. Gallagher; John I. Gerace; George A. Gerhens; William Germann; Michael Gold; John M. Guido; Kenneth Hampton; William Harrington; Brian Harrison; Gerard Hart; Charles A. Hendricks; Santiago Hernandez; Larry Hollenbeck; Raymond Hoye; Bob Hyland; Cornelio Iacono; Chester Jabacinski; Walter Jacome; Lehman Jenkins; Robert Johnson; John Jones; John C. Richards, Jr.; Clifton Oates, Jr.; Manfred Kalkowski; Charles J. Keller; John Kleppe; Anthony J. Lafemina; Paul F. Lehnert; Michael V. Lynch; Eddie Maddox; William Maffei; Dominick Manocchi; Rey A. Martinez; Michael Martorano; Michael Matraia; Joseph McDermott; Robert McDermott; Delmar Miner; Ronald Montanya; Roberto Morales; Patrick Moriarty; Gregory Nesmith; Russell Noble; Daniel J. O'Leary; Michael P. Oakes; Antonio Ortega; John Pertoso; Allan Petre; Louis A. Picciola; Faublas Pierre; Gary Raffa; Michaeljohn Regan; Michael J. Regan; Peter Renda; David Roberts; Jose Rogel; Francisco P. Roman; William Salvato; Carmine Salvato; Bernard Scheurer; Marvin Seigal; Mitchell Singer; Shawn Smith; David W. Smith; Angelo Spadaro; Frank Spinella; Thomas J. Staropoli; Richard Stvan; Floyd Swehla; Richard Lee Taylor; Michael Tetro; Leon Thomas; John Tindal; Mitch Turner; Juan R. Del Villar; Barry Wasserman; Paul Witte; James Zieran; and John Zoccolillo, Plaintiffs, v. Anthony RUMORE, individually and in his official capacity as President |
| Court | U.S. Court of Appeals — Second Circuit |
Louie D. Nikolaidis, New York City (Lewis, Greenwald, Clifton & Lewis, P.C., New York City, of counsel) for Plaintiff-Appellant.
Paul M. Heylman, Washington, DC (Henry A. Platt, Schmeltzer, Aptaker & Shepard, P.C., Washington, DC, of counsel), for Defendant-Appellee- "Appellee The Coca-Cola Bottling Company of New York, Inc.
Barry I. Levy, New York City (Lewis Rosenberg, Shapiro, Beilly, Rosenberg, Albert & Fox, New York City, of counsel), for Defendant-Appellee Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of Teamsters.
Before: LUMBARD, OAKES and PARKER, Circuit Judges.
This is an appeal from the United States District Court for the Southern District of New York (Louis Stanton, J.). Judge Stanton dismissed Farkas's claims, holding that Farkas had failed to exhaust his contractual remedies. We dismiss his appeal as untimely.
Fed. R.App. P. 4(a)(1) requires that an appellant file a notice of appeal within 30 days of the date of entry of judgment or order appealed from. The Supreme Court has stated that "the taking of an appeal within the prescribed time limits is mandatory and jurisdictional." Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988). In this case, the district court granted summary judgment on the claims Farkas makes here in an order dated March 9, 1995, and it issued a Rule 54(b) certificate on September 27, 1995. The clerk filed a judgment disposing of the claims on October 3, 1995. Farkas filed his notice of appeal on December 6, 1995, 64 days after entry of the judgment. Unless some exception applies, therefore, Farkas's appeal is not timely.
Farkas first argues that his appeal time should be calculated from the date the clerk of the court reentered the judgment on his claims. The clerk vacated the original judgment of October 3, and reentered it on November 16. The first judgment ordered counts five and six dismissed, and ordered the case removed from the docket; the second judgment vacated the first judgment and ordered the fifth and six counts dismissed. The effect of this reentry was to restore the case to the docket: this was proper, as one count of the original suit was going to trial.
Farkas also claims that he should not be bound to the date of the first judgment because his attorney purportedly never received a copy of the judgment of October 3rd, and that he was notified orally only on November 15. On November 16, he filed a motion with the court for leave to file a late notice of appeal. The court denied this motion as moot, without prejudice to renew.
Where a judgment is reentered, and the subsequent judgment does not alter the substantive rights affected by the first judgment, the time for appeal runs from the first judgment. FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245 (1952). This doctrine has been applied to judgments reentered to correct technical errors. See, e.g., Air Line Pilots Assoc. v. Precision Valley Aviation, Inc., 26 F.3d 220, 223-26 (1st Cir.1994); United States v. Lewis, 921 F.2d 563 (5th Cir.1991); White v. Westrick, 921 F.2d 784 (8th Cir.1990). Similarly, where an order disposes of a party's substantive claims, but does not dispose of claims relating to attorney's fees, the time for appeal of the substantive claims starts to run from the date of the first order, Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), unless the district court explicitly grants a delay, see Fed.R.Civ.P. 58. See also Fed.R.Civ.P. 58, Advisory Committee Notes, 1993 Amendments (addressing amendments dealing with the Budinich issue of attorney fees).
The reentry of the judgment in Farkas's case did not alter the disposition of counts five and six in any way: the language in the two judgments is essentially identical. Furthermore, the element of the first judgment that was changed (the removal of the case from the court's docket) is laid out in a separate paragraph, with a separate statement of "ORDERED" attached to it: there can be no confusing the fact that count one was unrelated to counts five and six.
Farkas attempts to distinguish his case by noting that the second judgment purports to "vacate" the first one, and that the judgments in the cases following Minneapolis-Honeywell did not. However, this argument is contrary to every statement...
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