Brown v. State Farm Fire & Casualty Co.

13-4707

Brown v. State Farm Fire & Casualty Co.

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

12th day of September, two thousand fourteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

ROBERT D. SACK,

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

Ralston Brown,

Plaintiff-Appellant,

v. 13-4707

State Farm Fire & Casualty Co.,

Defendant-Appellee.

_____________________________________

FOR PLAINTIFF-APPELLANT: Ralston Brown, pro se, Bridgeport, CT.

FOR DEFENDANT-APPELLEE: Daniel P. Scapellati, Halloran & Sage, LLP,

Hartford, CT.

Appeal from a judgment and order of the United States District Court for the District of

Connecticut (Arterton, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal is DISMISSED for lack of jurisdiction in part and AFFIRMED in

part.

Plaintiff-appellant Ralston Brown, proceeding pro se, appeals the judgment of the district

court dismissing his claims against State Farm Fire and Casualty Company as barred by the

doctrine of res judicata, and its subsequent order denying his motion for reconsideration. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

In a civil case, Federal Rule of Appellate Procedure 4(a)(1) and 28 U.S.C. § 2107(a)

generally require an appellant to file a notice of appeal within 30 days of the entry of the

judgment or order being appealed. “[T]he timely filing of a notice of appeal in a civil case is a

jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Therefore, we are

“obliged to examine the question sua sponte.” Travelers Ins. Co. v. Carpenter, 411 F.3d 323,

328 (2d Cir. 2005).

Under Federal Rule of Appellate Procedure 4(a)(4), if a party timely moves for

reconsideration, the time to file an appeal from the underlying judgment runs from the entry of

the order disposing of the last such motion. However, tolling occurs only if that motion is filed

within 28 days of the entry of judgment. See Lichtenberg v. Besicorp Group Inc., 204 F.3d 397,

400-01 (2d Cir. 2000) (stating that an untimely motion for reconsideration does not extend the

time to appeal). The time limits placed on a Rule 59(e) or Rule 60(b) motion may not be

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extended by the district court. Fed. R. Civ. P. 6(b); see also Lichtenberg, 204 F.3d at 401; cf.

Bowles, 551 U.S. at 214 (stating that courts have no authority to create equitable exceptions to

jurisdictional requirements).

Here, following the entry of judgment on March 13, 2013, the district court purported to

extend the time within which Brown could move for reconsideration. Brown filed his

reconsideration motion on April 22, 2013, 40 days after judgment was entered. Because his

reconsideration motion was not filed within 28 days of the judgment, the time for Brown to file a

notice of appeal from the judgment was not tolled. See Fed. R. App. P. 4(a)(4); Lichtenberg, 204

F.3d at 400-01. The district court subsequently decided the motion for reconsideration on

December 5, 2013, and Brown filed his notice of appeal on December 16, 2013. To the extent

Brown intended to appeal the underlying judgment, his notice of appeal was untimely, and so we

lack jurisdiction to review that judgment. See Bowles, 551 U.S. at 214. However, Brown’s

notice of appeal was timely as to the district court’s order denying his reconsideration motion,

and so we proceed to review that order. Cf. Feldberg v. Quechee Lakes Corp., 463 F.3d 195, 198

(2d Cir. 2006).

We review a district court’s denial of reconsideration for abuse of discretion. See

Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011). A district court

abuses its discretion when its decision: (1) rests on an error of law or a clearly erroneous factual

finding; or (2) cannot be found within the range of permissible decisions. Id.

“[R]econsideration will generally be denied unless the moving party can point to controlling

decisions or data that the court overlooked—matters, in other words, that might reasonably be

expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d

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255, 257 (2d Cir. 1995). Reconsideration “should not be granted where the moving party seeks

solely to relitigate an issue already decided.” Id.

Upon such review, we conclude that Brown’s appeal is without merit substantially for the

reasons articulated by the district court in its well-reasoned order. Brown v. State Farm Fire &

Cas. Co., No. 11-cv-1435 (D. Conn. Dec. 5, 2013). The district court properly determined that

Brown’s claims arose out of the same series of transactions as Brown’s previous litigation. To

the extent that these claims arose before the commencement of that litigation, then, they are

barred by res judicata. To the extent that Brown is attempting to assert claims that arose after the

commencement of his previous suit, we conclude that he has failed to state a plausible claim. See

Reville v. Reville, 93 A.3d 1076, 1087 (Conn. 2014) (noting that in order to state a fraud claim, a

plaintiff must allege reliance); Terracino v. Buzzi, 1 A.3d 115, 122 n.7 (Conn. App. Ct. 2010)

(“[T]here is no civil remedy for perjury).

We have considered all of Brown’s remaining arguments on appeal and find them to be

without merit. Accordingly, we DISMISS Brown’s appeal of the district court’s underlying

judgment for lack of jurisdiction, and we AFFIRM the district court’s order denying

reconsideration.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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