Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-01048-PCD Document 125 Filed 12/20/2005 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
CLIFTON S. FREEDMAN )
)
Plaintiff )
) CIVIL ACTION NO.:
v. ) 3:03 CVl048 (PCD)
)
THE TOWN OF FAIRFIELD, DETECTIVE )
WILLIAM YOUNG AND DETECTIVE DAVID )
BENSEY (Individually and in their official )
capacities as police officers for the Town of )
Fairfield) )
)
Defendants. )
) DECEMBER 19, 2005
)
MEMORANDUM IN OPPOSITION TO DEFENDANTS’
MOTION FOR "RECONSIDERATION" OF AMENDED JUDGMENT
The Defendants ask this Court to "reconsider" the Amended Judgment, arguing that the
Plaintiff is not entitled to minimum statutory damages of $1000 under section 2707 of the
Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq. The Court should deny the
Defendants’ motion as untimely. As such, the Court lacks jurisdiction to consider the merits
of the motion.
I. THE COURT LACKS JURISDICTION TO CONSIDER A RULE 59(E) MOTION
FILED MORE THAN 10 DAYS AFTER ENTRY OF THE JUDGMENT.
Because the Defendants request relief that would change the substance of the Amended
Judgment, their motion must be deemed a Rule 59(e) motion to "alter or amend" that
judgment. Rule 59(e) states that any motion to alter or amend a judgment "shall be filed no
later than 10 days after entry of the judgment." In this case, the docket reflects entry of the
Amended Judgment on November 9, 2005. Therefore, excluding weekends, the deadline for
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Case 3:03-cv-01048-PCD Document 125 Filed 12/20/2005 Page 2 of 4
filing the motion was November 23, 2005. But tl1e docket reflects that the motion was not
filed until November 28, 2005. Plai111y, it is untimely.
Because the Defendants’ Rule 59(e) motion is untimely, this Court lacks jurisdiction to
consider the merits of the motion. Browder v. Director, Illinois Dept. of Corrections, 434
U.S. 257, 263 n.7 (1978) (court lacks jurisdiction to consider untimely motion under Rule
59(e)). Moreover, the Court cannot, either sua sponte or at Defendants’ request, grant an
extension of time after the fact. Rule 6(b) of the Federal Rules of Civil Procedure expressly
states that a district court cannot enlarge the time for taking action under Rule 59(e). As the
Second Circuit stated in Lichentenberg v. Besicorp Group, Inc., etal., 204 F. 3d 397 (2d. Cir.
2000):
To be timely under Civil Rule 59(e), a motion must be filed within 10 days after
entry of the judgment, computed in accordance with Fed. R. Civ. P. 6(a), with
intermediate Saturdays, Sundays, and legal holidays excluded. This time
limitation is uncompromisable, for Civil Rule 6(b) provides, in pertinent part,
that the district court "may not extend the time for taking a11y action under Rules
50(b) and (c)(2), 52(b), 59(b), (d) and (e)." Fed. R. Civ. P. 6(b); see, e.g.,
Rodick v. City of Schenectady, 1 F.3d 1341, 1347 (2d Cir. 1993) (request for
extension of 10-day period in which to move for judgment as a matter of law
pursuant to Civil Rule 50(b) "[w]as (an impermissible) one"). Thus, although
"[t]he running of time for filing a notice of appeal may be tolled, according to
the terms of Rule 4(a), by a timely motion filed in the district court pursuant to
Rule 52(b) or Rule 59," Browder v. Director, Department of Corrections, 434
U.S. 257, 264 (1978), "Rule 6(b) prohibits enlargement of the time period
prescribed in . . . these Rules," id. at 261 n.5.
Id. at 401. _
CONCLUSION
For the foregoing reasons, the Court should deny the Defendants’ motion for
reconsideration of the Amended Judgment. ‘
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THE PLAINTIFF,
CLIFTON S. FREJEDMAN
Daniel J. £a}é(ct17957)
H. James Pickerstein (ct05094)
Calvin K. Woo (ct24951)
Pepe & Hazard LLP
Goodwin Square
225 Asylum Street
Hartford, CT 06103-4302
Phone: (860) 522-5175
Fax: (860) 522-2796
[email protected]
[email protected]
[email protected]
Robert Y. Altchiler (ct24247)
The Law Offices of Robert Y.
Altchiler
191 Post Road West
Westport, CT 06880
3
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Case 3:03-cv-01048-PCD Document 125 Filed 12/20/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify th the foregoing has been sent by first class mail, postage
prepaid, this _/fl day ofé , 05 to the following:
Thomas Murtha, Esq.
Walter A. Shalvoy, Jr., Esq.
Maher & Murtha, LLC
528 Clinton Avenue
P.O. Box 901
Bridgeport, CT 06601 Rf
Daniel J.
DJK/32442/2/748801v2
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