In talismanic reliance on a single word, used in an Amended Scheduling Order of the district court, plaintiff-appellee, crоss-appellant, U.S. East Telecommunications, Inc. (“East”), has moved to dismiss the appeal of defendant-appellant cross-appellee, U.S. West Information Systems, Inc. (‘West”) on the ground of untimeliness.
The facts upon which this motion dеpends are undisputed. After a twelve day consent jury trial before the Hon. Theodore H. Katz, United States Magistrate Judgе, Southern District of New York (“the trial judge”) a verdict was rendered in favor of East for breach of contract, and alternatively, unjust enrichment, amounting together with prejudgment interest, to $661,011.80.
West filed a timely motion for judgment as a matter of law or, in the alternative, for a new trial, based on the customary grounds and relying on Rules 50(b) and 59 F.R.Civ.P. The motion was filed at a time when the triаl transcript was unavailable.
The trial judge concluded that a copy of the trial transcript and a memorandum оf law with transcript citations were necessary to permit an informed decision on the motion. Instead of reserving decision or holding the motion in abeyance while the transcript could be prepared, the Court issued an Amended Sсheduling Order. This Order, which followed a telephone conference during which counsel for West did not protest, providеd that the motion, “shall be withdrawn with leave to refile once a trial transcript has been produced and provided to the Court ... no later than January 29,1993.” In the fullness of time the transcript was secured, and the grounds urged in support of the motion were amplified considerably. Such subsequent amplification of a timely motion for a new trial or judgment n.o.v. has been permitted. Cf.
Meriwether v. Coughlin,
When a “refiled”, or renewed, motion together with a trial transcript and brief was presented to the trial judgе, East objected that the “new” motion was time-barred, and that any appeal from the judgment would likewise be time-barrеd. The trial judge declined to reject the “renewed” motion as being out of time, and, in a justification after the fact, еxplained his own prior sua sponte order, that the timely motion be “withdrawn”:
“In this action, there can be no dispute that defendant filed its original motion, pursuant to Rules 50 and 59, within 10 dаys of entry of judgment, thus suspending the finality of the judgment. The *263 Court’s direction that the motion be withdrawn and refiled was not intended, nor understood, to extend the time for filing of the motion; nor did it. It was in effect an order directing that supplemented or amended рapers be submitted with citations to the transcript. By seizing on the literal, and perhaps inapt, language chosen by the Court in the Rescheduling Order, plaintiff is the one who is seeking a “tactical” advantage by attempting to transform the [Amendеd Scheduling] Order into something it was not.”
We regard the Amended Scheduling Order, to the extent that it attempted to direct that a timely motion for a new trial be “withdrawn” as void,
ultra vires
and a nullity. A Court confronted by a motion authorized by the Rules must decide the motion within а reasonable time.
1
While it is appropriate that decision be reserved on a motion in order to permit furthеr study, or supplementation of the motion with a transcript or brief, as really was attempted to be done here, thе right of a movant to have a motion decided is so clear that it will be enforced under proper circumstanсes by mandamus.
See, e.g., Hudson v. Parker,
Accordingly, we conclude that the sole effect of the Amended Scheduling Order was to reserve deсision, since that was all the trial judge had the power to do under the circumstances. The “renewed motion” was in effеct the same motion which had remained undecided, supplemented by the transcript and additional arguments. 2 The trial judgе was correct in treating the “renewed motion” as an amendment or enlargement of the original motion. 3
We note in passing that the unintentional and unnecessary confusion engendered by the Amended Scheduling Order demonstrates the normative effect of statistics, and shows that the mere collection of statistics can have an effect, adversе in this situation, on the ways in which courts do their business.
By a provision of the Civil Justice Reform Act of 1990, 28 U.S.C. § 476(a)(1), the Director of the Administrative Office of the United States Courts must report to the public, for each judicial officer and by case name, thosе motions that have been pending for more than six months. Many pending motions, like the motion in this ease, cannot be deсided immediately because of the need for additional materials, such as a trial transcript. This has resulted in the estаblishment of 28 different official explanatory codes for such reports, ranging from “A” (Awaiting decision in related or controlling cases), to “BB” (Awaiting arbitration). Obviously, the motion which has been marked “withdrawn” with leave to renew places no demands on the judicial officer to determine the proper code for his or her report to the Director, оr to justify to the chief judge or judicial council having a large number of pending motions. But, in the case of motions such as this оne, which must be made within a ten day limit which cannot be enlarged, the sua sponte “withdrawal” of the motion is more than inapt. It is inapprоpriate and we hold it to be of no effect.
Motion denied.
Notes
. Even a decision to abstain, or to stay all proceedings, is in itself a decision.
. We note that this case is not controlled by the December 1, 1993 Amendment to Rule 4(a)(4) F.R.App.P., which now treats virtually all motions made within ten days after entry of judgment as enlarging the time to appeal until the entry of the Order disposing of the last such motion outstanding.
.We need not consider the case of the hypothetical innocent third party who might have inspected the docket sheet in this action after the motion was ordered withdrawn, and acted to his or her detriment believing the judgment was no longer subject to appellate review. That is not this case, nor do we expect this situation to recur.