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! Cas U · 0610-EBB Document 125 Filed 05/O1/2006 ge
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N l UNITED STATES COURT OF APPEALS
_ 2 FOR THE SECOND CIRCUIT
j 3 SUMMARY ORDER A
i 4 THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDE REPORTER
5 AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS WR ANY OTHER
Q 6 COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OT ANY OTHER
I 7 COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED§CASE, OR IN
8 ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES $ICATA.
9 At a stated term of the United States Court of App als{.for the .
; 10 Second Circuit, held at the Thurgood Marshall Un °C€dyT;SC5Ll§,!§ES
g ll courthouse, Foley Square, in the City of New York, on fthe? 5th ""°`§,("§, 5
g 12 of April, two thousand Six. 2,; ° ,,,,· T
13 PRESENT: g - l~ LS1; `
14 HON. RICHARD J. CARDAMONE, I 3 www U '. I J
15 HON. ROBERT D. SACK, QRRRX ? ",, Iofdgo ‘l‘’`_ .
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18 HON. RICHARD C. CASEY,* ` F , ,“ { X bf
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19 District Judge. ` I ‘ T
20 — ~——— — —-——————————————~~————-——————————-——
21 MAN KAPLAN, BY HIS BEST FRIEND \
22 STEVEN B. LITVAK,
23 Plaintiff—Appellan;,
24 — v - Io. O4-2310
25 MYRNA LEHRER,
26 Defendant—'1?hird—Part Plai iff—A elle , Y
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28 RITA LITVAK, `
29 Third-Party Defgndgnt—Appellant.
* Of the United States District Court for the SO _t1·1ern
District of New York, sitting by designation. \
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10-EBB D0cum`ent125 Filed 05/O1/2006 Page20f4
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g 1 -————-—-————-—- ~ ——--————-— ~ ———-——-——---———
Q 2 Appearing for Appellant:. KENNETH A. VOTRE, New H-ven, CT.
3 Appearing for Appellee: WILLIAM H. CLENDENEN, N=w Haven,
4 CT. 2
V 5 Appeal from a judgment of the United States Dist ict Court
I I 6 for the District of Connecticut.(Ellen Bree Burns, u•ee). ,
I
X 7 UPON DUE CONSIDERATION, it is hereby ORDERED, AD IGED AND
I 8 DECREED that the judgment of the district court be, a d it hereby . I
i 9 is, AFFIRMED. . I
10 The third—party defendant Rita Litvak appeals an order of I
11 the United States District Court for the District of •onnecticut Q .
12 denying her motion for relief from judgment under Fed. R. Civ. P. f
13 60(b)(1),(4). Litvak argues that the district court*s order ‘
14 granting the defendant‘s motion to dismiss was void be ause the f
15 ninety—day time limit for substitution imposed by Rule 25(a) had ,
16 not yet passed at the time the order was entered. She therefore ‘$ .
17 seeks relief from that judgment pursuant to Rule 60(b)(4). · 5
18 Litvak argues in the alternative that even if the judg ent is not
19 void, the order should be vacated because her failure o respond . I
20 to the defendant's motion to dismiss constitutes "excu=able 2
21 neglect" for the purposes of Rule 60(b)(1). Neither a·gument
22 succeeds. §
23 Litvak first argues that the district court's dis issal of
24 her father's suit on account of his death was void. W- review gg ‘ I
25 novo whether or not a judgment was void, because givin; effect to
26 a void judgment is a per se abuse of discretion. S ats St. Bank _
27 & Trust Co. v. Inversignes Errazuriz Limitada, 374 F.3• 158, 178 I i
28 (2d Cir. 2004). A judgment is void if the court acted "in a I
29 manner inconsistent with due process of law.“ Belle > Keller v. I
30 Tyler, 120 F.3d 21, 23 (2d Cir. 1997) (citation and qu•tation
31 marks omitted). I
32 Litvak contends that the district court lacked th» legal
33 power to order dismissal of the suit, because the nine y-day time .
34 limit imposed by Fed. R. Civ. P. 25(a) had not yet run. Nothing _
35 in Rule 25(a), however, gives another party a right to substitute -
36 him- or herself as a party to an action during that ni ety—day p 3
37 period. Instead, the rule provides that "the court ma. order p l
38 substitution" of proper parties. Fed. R. Civ. P. 25(ar (emphasis
39 added); see Anderson v. Yungkau, 329 U.S. 482, 485 (1947) (noting _
40 the significance of the use of "may" rather than "shall" in _
41 applying an older version of Rule 25). Thus, the deci¤ion to ‘ I
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[ "__"‘LGase 3:00-cv-00610-EBB Docurnent 125 Filed 05/O1/2006 Page 3 of 4
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1 permit substitution rests in the discretion of the co rt. When
2 defendant Lehrer moved to dismiss on the basis of Kapl=n's death,
3 Litvak had ample opportunity to respond to that motio , but she
4 neither moved to substitute parties nor moved for a c•·tinuance
5 under Rule 6(b). Having had such an opportunity, Lit =k cannot
i 6 now assert that she was denied due process of law. T — court's
I 7 order dismissing the case pursuant to D. Conn. L. Civ. R.
8 7(a)(1), which provides that "[flailure to submit a me orandum in
I ‘ 9 opposition to a motion may be deemed sufficient cause to grant |
[ @ 10 the motion," was therefore valid. E
11 Litvak next argues that the district court shou1• have {
12 ordered relief from judgment because her failure to re=pond to ,
13 the defendant's motion constitutes "excusable neglect," !
14 permitting relief under Rule 60(b)(1). We review decisions to
15 grant or deny motions to reopen judgment under Rule 60(b)(1) for
l6 an abuse of discretion. Branum v. Clark, 927 F.2d 698, 704 (2d
17 Cir, 1991). "Mere dissatisfaction in hindsight with c oices
18 deliberately made by counsel is not grounds for finding the i
19 mistake, inadvertence, surprise or excusable neglect n-cessary to ? _
20 justify Rule 60(b)(l) relief." Ngmaizer v. Baker, 793 F.2d 58,
21 62 (2d Cir. 1986). |
22 Litvak maintains that her neglect in responding t» the
23 defendant's motion is excusable because she had not ye become
24 fiduciary to her father's estate and so did not yet re•resent his E
25 legal interests. However, Rule 25(a) allows a motion o
26 substitute to be made "by any party." Litvak, as a thfrd-party
27 defendant, was a party to the suit at the time of the ·efendant's ¤
28 motion to dismiss. She therefore could have responded to that
29 motion by moving for a substitution of parties under R le 25(a)
30 or for an enlargement of time within which to do so un»er Rule
31 6(b). Moreover, it is not an excuse that the party se king
32 substitution had not yet become the legal representati e of the
33 deceased party's interest at the time when the motion ihould have
34 been filed. gee ynicorg Tales, Inc. v. Banerjee, 138 .3d 467,
35 470 (2d Cir. 1998}. Thus, the district court did not »buse its
36 discretion in deciding that Litvak*s failure to take a y action
37 until after the court had entered judgment did not qualify as J
38 "excusable neglect" for the purposes of Rule 60(b)(1). ;
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{ Case 3:00-cv-00610-EBB D0curnent12-5 Filed 05/O1/2006 Page40f4
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1 1 For the foregoing reasons, the judgment of the di-trict
2 court is hereby AFFIRMED.
I 3 FOR me commu
\ 4 ROSEANN B. MAc1 [ ·“ Y
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