16‐1837‐cv
Davis v. Brown, et al.
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.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 20th day of December, two thousand
4 seventeen.
5
6 PRESENT: GERARD E. LYNCH,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 CHRISTINA REISS,
10 Chief District Judge.*
11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12
13 COREY DAVIS,
14
15 Plaintiff‐Appellant,
16
17 v. No. 16‐1837‐cv
18
19 JOY BROWN,
20
21 Defendant–Cross‐Claimant–Appellee,
22
23 PODS INC.,
24
* Chief Judge Christina Reiss, of the United States District Court for the District of
Vermont, sitting by designation.
1 Defendant–Cross‐Defendant–Appellee.**
2 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
3
4 FOR APPELLANT: Corey Davis, pro se, Bradford, PA.
5
6 FOR APPELLEES: Marc I. Kunkin, Hill Rivkins LLP,
7 New York, NY, for PODS Inc.
8
9 Joy Brown, pro se, Hempstead, NY.
10
11 Appeal from orders of the United States District Court for the Eastern
12 District of New York (Sandra J. Feuerstein, Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the appeal from the District Court’s October 2015 order is
15 DISMISSED for lack of jurisdiction, and the District Court’s May 2016 order is
16 AFFIRMED.
17 Corey Davis, pro se and incarcerated, appeals from the October 2015 order
18 of the District Court (Feuerstein, J.) dismissing his complaint pursuant to the
19 parties’ stipulation and its May 2016 order denying his motion for relief pursuant
20 to Rules 60(b)(1) and 60(b)(3) of the Federal Rules of Civil Procedure. We
21 assume the parties’ familiarity with the facts and record of the prior proceedings,
22 to which we refer only as necessary to explain our decision to dismiss in part and
23 affirm in part.
** The Clerk of Court is directed to amend the official caption as set forth above.
2
1 We have determined sua sponte that Davis’s notice of appeal was untimely
2 filed with respect to the October 2015 dismissal order. The timely filing of a
3 notice of appeal in a civil case is a jurisdictional requirement. Bowles v. Russell,
4 551 U.S. 205, 214 (2007). A notice of appeal “must be filed with the district clerk
5 within 30 days after entry of the judgment or order appealed from.” Fed. R.
6 App. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a). The time to file a notice of appeal
7 is tolled during the pendency of a Rule 60 motion if that motion is filed within 28
8 days after the judgment is entered. Fed. R. App. P. 4(a)(4)(A)(vi). But
9 subsequent Rule 60 motions will not toll the time to appeal; only the first motion
10 does so. Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996). Although
11 Davis’s first Rule 60 motion tolled the time to file a notice of appeal, the District
12 Court denied that motion on January 14, 2016, giving Davis until Tuesday,
13 February 16, 2016 to file his notice of appeal. See Fed. R. App. P. 26(a)(1)(C).
14 Davis did not appeal until four months later, in June 2016. Accordingly, we lack
15 jurisdiction to review the October 2015 order.
16 Davis also appeals the District Court’s May 2016 order, arguing that he was
17 entitled to relief pursuant to Rule 60(b)(6) because the District Court did not have
18 the authority to modify the stipulation and proposed order before dismissing the
3
1 action. Even assuming that Davis has not forfeited this argument about the
2 District Court’s lack of authority, see McLeod v. Jewish Guild for the Blind, 864
3 F.3d 154, 156 (2d Cir. 2017), the District Court did not abuse its discretion in
4 dismissing the case without retaining jurisdiction over the settlement agreement
5 because, as Davis’s own submission to the District Court made clear, retention of
6 jurisdiction was not a condition of the parties’ settlement agreement, and Rule
7 4l(a)(l)(ii) of the Federal Rules of Civil Procedure does not enable parties to
8 obligate a court to retain such jurisdiction.
9 As a result, the District Court properly declined to exercise ancillary
10 jurisdiction over enforcement of the settlement agreement. See Hendrickson v.
11 United States, 791 F.3d 354, 358 (2d Cir. 2015). Federal courts are courts of
12 limited jurisdiction that do not automatically retain jurisdiction over the
13 enforcement of settlement agreements. Id. To retain ancillary jurisdiction over
14 the enforcement of a settlement agreement, the District Court’s order of dismissal
15 must either expressly retain jurisdiction or incorporate the terms of the settlement
16 agreement. Id. Here, the District Court’s dismissal order explicitly did not
17 retain jurisdiction or incorporate the terms of the settlement agreement.
18
4
1 We have considered Davis’s remaining arguments and conclude that they
2 are without merit. Accordingly, we DISMISS the appeal from the District
3 Court’s October 2015 order and AFFIRM the District Court’s May 2016 order
4 denying Rule 60 relief.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk of Court
5