Brown v. State Farm Fire & Casualty Co. , 574 F. App'x 46 ( 2014 )

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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