Arista Records, Inc. v. Musemeci , 369 F. App'x 271 ( 2010 )

08-4089-cv
Arista Records, Inc. v. Musemeci
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 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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 12th day of March, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge.
JOHN M. WALKER, Jr.,
DEBRA ANN LIVINGSTON,
Circuit Judges.
Arista Records, Inc., et al.,
Plaintiffs-Appellees,
v. 08-4089-cv
John Musemeci,
Defendant-Appellant.
__________________________________________
FOR APPELLANT: John Musemeci, pro se, Brooklyn, NY.
FOR APPELLEES: TIMOTHY M. REYNOLDS (Thomas M. Kerr
on the brief), Holme Roberts & Owen
LLP, Denver, CO.
Appeal from a judgment and orders of the United States
District Court for the Eastern District of New York (Trager,
J.)
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal is hereby DISMISSED.
Appellant John Musemeci, pro se, appeals the district
court’s April 2004 default judgment; the district court’s
denial of his Fed. R. Civ. P. 60(b) motion to vacate the
court’s default judgment; and the district court’s denial of
his Fed. R. Civ. P. 59(e) motions to reconsider the order
denying his Rule 60(b) motion. We assume the parties’
familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
In a civil case where the United States or an officer
or agency thereof is not a party, an appellant must file a
notice of appeal (“NOA”) within thirty days of the entry of
the judgment or order from which the appeal is taken. 28
U.S.C. § 2107; Fed. R. App. P. 4(a)(1). This is a
jurisdictional requirement. Absent a timely filing, we lack
jurisdiction and the appeal must be dismissed. See Bowles
v. Russell, 551 U.S. 205, 206 (2007). However, if a party
files a Fed. R. Civ. P. 59 or 60 motion no later than ten
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days after the judgment or order is entered, the time period
for filing a NOA does not begin to run until the date the
district court enters an order disposing of such a motion.
See Fed. R. App. P. 4(a)(4); see also Fed. R. App. P.
4(a)(4)(A)(vi); Fed. R. Civ. P. 59(e).
To the extent Musemeci seeks to appeal the district
court’s April 2004 default judgment, his NOA is untimely.
Although a Rule 60(b) motion can toll the time period for
filing an NOA as to the underlying judgment, that motion
must be filed no later than ten days after the judgment was
entered. See Fed. R. Civ. P. 4(a)(4)(A)(vi). Musemeci
filed his Rule 60(b) motion nearly three years after the
district court entered judgment.
To the extent Musemeci seeks to appeal the denial of
his Rule 60(b) motion, his NOA is likewise untimely. The
district court’s order denying his motion was entered on
October 25, 2007. Under Fed. R. App. P. 4(a)(1), Musemeci
had thirty days from that date to file an NOA, which he
failed to do. Instead, Musemeci filed a motion for
reconsideration of the district court’s order, which was
denied on December 11, 2007. Even if Musemeci’s motion for
reconsideration tolled the time period for filing an NOA as
to the district court’s October 2007 order, see Fed. R. App.
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P. 4(a)(4)(A), he was required to file an NOA within thirty
days of December 11, 2007. Musemeci failed to file his NOA
until June 2008; so his NOA was untimely filed as to the
order denying his Rule 60(b) motion, and his subsequent
motions for reconsideration did not toll this time period
any further. See Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d
Cir. 1996). We therefore lack jurisdiction to consider the
appeal.
For the foregoing reasons, this appeal is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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