12-4654(L)
Stephens v. JRD Management
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 20th
day of November, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
Kendell Stephens,
Plaintiff-Appellant-Cross-Appellee,
v. 12-4654(L);
13-84(XAP)
3500 Snyder Avenue Owners
Corporation, JRD Management,
Maxx Properties,
Defendants-Appellees-Cross-Appellants,
Local Union 2 of New York State
Independent Union of Building Service
Employees & Factory Workers,
Defendant-Appellee,
Local 2 of Building Service Employees
& Factory Workers, USWU, IUJAT,
Defendants.
_____________________________________
FOR PLAINTIFF-APPELLANT-CROSS- Kendell Stephens, pro se,
APPELLEE: Brooklyn, NY.
FOR DEFENDANTS-APPELLEES-CROSS- Diane Krebs, Bran C.
APPELLANTS 3500 SNYDER AVENUE OWNERS Noonan, Gordon & Rees,
CORPORATION, JRD MANAGEMENT, AND MAXX LLP, New York, NY.
PROPERTIES:
FOR DEFENDANT-APPELLEE LOCAL UNION Steven H. Kern, Barnes
2 OF NEW YORK STATE INDEPENDENT Iaccarino & Shepherd,
UNION OF BUILDING SERVICE EMPLOYEES LLP, Elmsford, NY.
& FACTORY WORKERS:
Appeals from the judgment and order of the United States
District Court for the Eastern District of New York (Gleeson,
J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the matter be REMANDED for supplementation of the
record consistent with this order.
Plaintiff-Appellant-Cross-Appellee Kendell Stephens,
proceeding pro se, appeals from the district court’s judgment
granting the defendants’ motion to dismiss his amended complaint.
Defendants-Appellees-Cross-Appellants 3500 Snyder Avenue Owners
Corporation, JRD Management, and Maxx Properties cross appeal
from the district court’s Order granting Stephens’s pro se motion
for an extension of time to file his notice of appeal. We assume
the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal, which
we reference only as needed to explain our decision.
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The threshold issue in this appeal is whether the district
court acted within its discretion when it allowed Stephens to
file his notice of appeal after the time period for filing that
notice had expired. In general, Rule 4(a)(1) of the Federal Rules
of Appellate Procedure and 28 U.S.C. § 2107(a) require a party to
file a notice of appeal within 30 days of the entry of the
judgment or order being appealed. “‘[T]he taking of an appeal
within the prescribed time is mandatory and jurisdictional.’” In
re Worldcom, Inc., 708 F.3d 327, 329 (2d Cir. 2013)(quoting
Bowles v. Russell, 551 U.S. 205, 209 (2007)).
However, district courts have the authority to extend the
time for filing a notice of appeal if, among other things, “a
party so moves no later than 30 days after the time prescribed by
[] Rule 4(a) expires.” Fed. R. App. P. 4(a)(5)(A)(i). In
addition, the district court may reopen the time to file a notice
of appeal in certain circumstances when the moving party did not
receive timely notice of the entry of judgment. See Fed. R. App.
P. 4(a)(6). We review for abuse of discretion orders extending
the time to file a notice of appeal under Rule 4(a)(5) or
reopening the time to file an appeal under Rule 4(a)(6). See In
re Worldcom, Inc., 708 F.3d at 340 (Rule 4(a)(6)); Goode v.
Winkler, 252 F.3d 242, 245 (2d Cir. 2001) (Rule 4(a)(5)).
In this case, the district court’s judgment dismissing
Stephens’s amended complaint was entered on September 5, 2012.
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Seventy-two days later, on November 16, 2012, Stephens filed a
pro se notice of appeal and a pro se motion seeking an extension
of time to file a notice of appeal. On December 20, 2012, the
district court granted Stephens’s motion for extension of time to
file his notice of appeal in a one-sentence Order, which stated:
“I conclude that plaintiff’s [] extension of time to file his
notice of appeal should be granted.” The district court’s
December 20, 2012 Order did not specify whether it relied on Rule
4(a)(5) or Rule 4(a)(6) to grant Stephens’s motion for extension
of time.
The district court could not have relied on Rule 4(a)(5) to
grant Stephens’s motion for extension of time because that
provision requires that such a motion be filed within the 30-day
period immediately following the original 30-day appeal period.
Here, Stephens’s motion was not filed until November 16, 2012,
which was 72 days after the September 5, 2012 judgment and 12
days after Rule 4(a)(5)’s 30-day grace period expired.
Accordingly, it appears that the district court must have
relied on Rule 4(a)(6) to reopen the time for Stephens to file
his notice of appeal. That Rule provides:
The district court may reopen the time to file an appeal
for a period of 14 days after the date when its order to
reopen is entered, but only if all the following
conditions are satisfied:
(A) the court finds that the moving party did not
receive notice under Federal Rule of Civil Procedure
77(d) of the entry of the judgment or order sought to be
appealed within 21 days after entry;
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(B) the motion is filed within 180 days after the
judgment or order is entered or within 14 days after the
moving party receives notice under Federal Rule of Civil
Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be
prejudiced.
Fed. R. App. P. 4(a)(6). “The responsibility for determining
predicate compliance with [Rule 4(a)(6) ] is vested in the
district court and generally the district court will be best
suited to weigh the competing factors relevant to a Rule 4(a)(6)
motion.” In re Worldcom, Inc., 708 F.3d at 340–41 (internal
quotation marks and footnote omitted). In this case, the district
court did not make any findings as to why Stephens’s motion for
an extension of time complied with the requirements of Rule
4(a)(6), or state why the court was exercising its discretion to
reopen the time for Stephens to file a notice of appeal.
Given the district court’s lack of findings and failure to
state its reasons for allowing Stephens to file a late notice of
appeal, we cannot adequately assess whether the district court
abused its discretion. Accordingly, pursuant to the procedure
outlined in United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994),
we remand this case for the district court to make findings and
provide a reasoned explanation for its December 20, 2012 Order.
On remand, the district court shall consider the applicability of
our decision in In re Worldcom Inc., 708 F.3d 327 (2d Cir. 2013),
which we issued after the district court’s December 20, 2012
Order. The mandate shall issue forthwith.
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These appeals will be reinstated, without need for new
notices of appeal, upon notice by either side to this Court by
letter that the district court has provided its explanation.
Such letter must be dated no later than 30 days after the
district court enters its explanation. For disposition of this
appeal, this matter shall be referred to a new panel in the
ordinary course.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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