Lichtenberg v. Besicorp Group

• Citation: 204 F.3d 397
• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-7858
• Parties: (2nd Cir. 2000) JAMES LICHTENBERG, on behalf of himself and all others similarly situated, JOHN BANSBACH, on behalf of himself and all others similarly situated, Plaintiffs-Appellees, v. BESICORP GROUP INC., MICHAEL F. ZINN, MELANIE NORDEN, MICHAEL J. DALEY, GERALD A. HABIB, RICHARD E. ROSEN, STEVEN I. EISENBERG, Defendants-Appellants, BGI ACQUISITION CORP., MARTIN E. ENOWITZ, and BGI ACQUISITION LLC, Defendants
• Court: U.S. Court of Appeals — Second Circuit

Page 397

204 F.3d 397 (2nd Cir. 2000)

JAMES LICHTENBERG, on behalf of himself and all others similarly situated, JOHN BANSBACH, on behalf of himself and all others similarly situated, Plaintiffs-Appellees, v. BESICORP GROUP INC., MICHAEL F. ZINN, MELANIE NORDEN, MICHAEL J. DALEY, GERALD A. HABIB, RICHARD E. ROSEN, STEVEN I. EISENBERG, Defendants-Appellants, BGI ACQUISITION CORP., MARTIN E. ENOWITZ, and BGI ACQUISITION LLC, Defendants.

Docket No. 99-7858

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Motion Argued: August 24, 1999

Decided: February 17, 2000

Motion to dismiss appeal from orders of the United States District Court for the Southern District of New York, William C. Conner, Judge, granting preliminary injunction and denying reconsideration.

Motion granted as to appeal from injunctive order; motion denied as to appeal from order denying reconsideration.

[Copyrighted Material Omitted]

TIMOTHY J. MacFALL, New York, New York (Curtis V. Trinko, Bernard Persky, Diane Zilka, Goodkind Labaton Rudoff & Sucharow, Harold B. Obstfeld, New York, New York, on the brief), for Plaintiffs-Appellees.

DAVID C. BURGER, New York, New York (Robinson Brog Leinwand Greene Genovese & Gluck, New York, New York, on the brief), for Defendants-Appellants.

Before: WINTER, Chief Judge, KEARSE and STRAUB, Circuit Judges.

Chief Judge Winter dissents, in a separate opinion.

KEARSE, Circuit Judge:

Defendants Besicorp Group Inc. et al. (collectively "Besicorp") have filed a notice of appeal from two orders of the United States District Court for the Southern District of New York, William C. Conner, Judge, (1) granting the motion of plaintiffs James Lichtenberg et al. for a preliminary injunction, and (2) denying reconsideration of the injunctive order. Plaintiffs have moved to dismiss the appeal on the ground that the notice of appeal was not timely filed. Besicorp contends that the appeal is timely or, alternatively, that it is saved by the doctrine of "unique circumstances." For the reasons that follow, we grant the motion to dismiss insofar as the appeal seeks review of the injunctive order, but not insofar as it seeks review of the order denying reconsideration.

I. BACKGROUND

The present suit was brought as a class action under the federal securities laws to challenge the sufficiency of the disclosures made by certain of the defendants in the solicitation of proxies in connection with a proposed merger. Plaintiffs moved for a preliminary injunction either enjoining the shareholder vote on the proposed merger until curative disclosures could be made or requiring the transfer of certain contingent assets and/or liabilities of Besicorp to a spin-off company created by the merger. Following briefing and argument of the motion, the district court informed the parties that, in light of the imminence of the proposed merger, the court would immediately enter an order granting the motion to the extent of ordering the requested transfer of assets/liabilities and that it would issue as soon thereafter as possible an opinion explaining the ground for the injunction. Accordingly, on March 18, 1999, the district court entered an order ("Order" or "March 18 Order") requiring the assets/liabilities transfer and stating that the injunction was issued "subject to a written Opinion to be filed by the Court." March 18 Order at 1. The Order further stated that any "motion for reconsideration or reargument of this Order and the forthcoming Opinion" should be filed within 10 days of entry of the written opinion. Id. at 2. The written opinion was entered on March 29, 1999 ("March 29 Order"), and set forth the district court's reasons for granting the injunction. Given the requirement of Fed. R. Civ. P. 65(d) that "[e]very order granting an injunction ... shall set forth the reasons for its issuance," see generally Firemen's Fund Insurance Co. v. Leslie & Elliot Co., 867 F.2d 150, 151 (2d Cir. 1989) (per curiam); Small v. Kiley, 567 F.2d 163, 164 (2d Cir. 1977), the March 29 Order was the operative injunctive order.

Under the terms of the March 18 Order, any motion for reconsideration of the March 29 Order would have been due on Monday, April 12, 1999. Sometime between March 29 and April 12, Besicorp sought and received the consent of the plaintiffs and permission from the district court to file a motion for reconsideration one week beyond the deadline set by the Order, i.e., by April 19. Besicorp filed its motion for reconsideration pursuant to Rule 6.3 of the Local Rules for the Southern District on April 19.

The district court denied the motion for reconsideration in an Opinion and Order dated June 23, 1999, entered on June 24 ("June Order"), stating in pertinent part as follows:

A movant is entitled to reargument and reconsideration of a motion upon demonstrating that the Court overlooked controlling decisions or factual matters that were placed before it on the underlying motion. Local Civil Rule 6.3 .... Local Civil Rule 6.3 is "strictly applied so as to avoid repetitive arguments on issues that have been fully considered by the court." .... Therefore, a motion for reconsideration and reargument "may not advance new facts, issues or arguments not previously presented to the court."

June Order at 1-2. Finding that defendants had failed to show any controlling authority or facts that had been overlooked by the court in deciding the injunction motion, the court denied reconsideration. The court also noted that

if defendants intended to make a motion under Fed. R. Civ. P. 59(e) in order to introduce new evidence, then the motion is untimely and cannot be considered by this Court. See Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir. 1980) (Rule 59(e) ten-day time limit for filing motion is "jurisdictional and cannot be extended in the discretion of the Court"); see also Browder v. Director, Dep't of Corrections of Ill., 434 U.S. 257, 262 n.5 (1978); Lapiczak v. Zaist, 451 F.2d 79, 80 (2d Cir. 1971); Fed. R. Civ. P. 6(b).

June Order at 2 n.2.

On July 21, 1999--within 30 days of the June Order, but more than 30 days after the March 29 Order--Besicorp filed a notice of appeal from the March and June Orders. Plaintiffs have moved to dismiss on the ground that Besicorp's motion for reconsideration was untimely under Fed. R. Civ. P. 59(e) and thus did not extend the 30-day period for appeal from the March 29 Order granting the preliminary injunction. Besicorp contends that it moved for reconsideration in timely fashion, having been granted an extension by the court, and that in any event its appeal should be deemed timely under the doctrine of unique circumstances. For the reasons that follow, we conclude the appeal is untimely and should be dismissed insofar as it seeks review of the March 29 Order.

II. DISCUSSION

In a private civil case, the Federal Rules of Appellate Procedure ("FRAP" Rules) ordinarily allow an aggrieved party to appeal within 30 days from the date of entry of the judgment. See Fed. R. App. P. 4(a)(1). However, the Federal Rules of Civil Procedure ("Civil" Rules) allow a party to move "to alter or amend a judgment," Fed. R. Civ. P. 59(e), and FRAP Rule 4(a)(4)(A) provides that if a party has "timely" filed a motion for alteration or amendment of the judgment under Civil Rule 59(e), or a motion for relief under certain other Civil Rules such as Rule 50(b) for judgment as a matter of law, Rule 52(b) for amended findings of fact, or Rule 59(b) for a new trial, "the time to file an appeal runs ... from the entry of the order disposing of the last such remaining motion." Fed. R. App. P. 4(a)(4)(A).

A "judgment," for purposes of the Civil Rules, is defined to "include[] a decree and any order from which an appeal lies." Fed. R. Civ. P. 54(a). Since the Judicial Code permits an appeal from an interlocutory order granting, refusing, or refusing to dissolve an injunction, see 28 U.S.C. 1292(a)(1), an "interlocutory order granting a preliminary injunction is a judgment within the meaning of the rule 4(a)(4) provision relating to a motion under Rule 59 to alter or amend the judgment," Northwestern National Insurance Co. v. Alberts, 937 F.2d 77, 81 (2d Cir. 1991) (internal quotation marks omitted); see also Gill v. Monroe County Department of Social Services, 873 F.2d 647, 648 (2d Cir. 1989) (same re denial of preliminary injunction); Stiller v. Squeez-a-Purse Corp., 251 F.2d 561, 563 (6th Cir. 1958) (per curiam) (same re denial of motion to dissolve preliminary injunction). Thus, if an order granting a preliminary injunction is to be reviewed prior to appeal from the final judgment, the appeal must be taken within 30 days after the date of entry of the injunction unless a timely motion has been made under Civil Rule 59(e) to alter or amend the injunction decision, or under some other pertinent Rule specified by FRAP Rule 4(a)(4)(A) as extending the appeal deadline. See, e.g., Northwestern National Insurance Co. v. Alberts, 937 F.2d at 81-82; see also Favia v. Indiana University of Pennsylvania, 7 F.3d 332, 337-38 (3d Cir. 1993) (30-day limit may not be circumvented by seeking relitigation of the original issues in the guise of a motion to dissolve or modify the injunction and appealing from the denial of that motion); Stiller v. Squeez-a-Purse Corp., 251 F.2d at 563 (same); 16 C. Wright & A. Miller, Federal Practice and Procedure 3924.2, at 208-09 (1996) (review of denial of a motion to dissolve or modify injunction would "not extend to the propriety of the original order").

To be timely under Civil Rule 59(e), a motion must be filed within 10 days after entry of the judgment, computed in accordance with Fed. R. Civ. P. 6(a), with intermediate Saturdays, Sundays, and legal holidays excluded. This time limitation is uncompromisable, for Civil Rule 6(b) provides, in pertinent part, that the district court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d...