589 F. Supp. 844 | S.D.N.Y. | 1984
OPINION AND ORDER
Third party plaintiff, Friedman/Meyer Productions, Ltd., and additional counterclaim defendants, Stephen R. Friedman and Irwin Meyer (collectively referred to as “Friedman/Meyer”), move this Court pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure for an order extending their time to appeal. They seek to appeal from a final judgment entered in their third party action against International Film Investors, L.P. and International Film Investors, Inc. (collectively referred to as “IFI”).
FACTS
On May 18, 1984, a conference was held before this Court for the purpose of discussing the terms of two proposed final judgments that had been submitted to the Court in connection with the third party action.
Friedman/Meyer alleges that it did not learn of the signature or entry of judgment until July 5, 1984 — after the time to appeal had expired.
Friedman/Meyer contends that its failure to file a timely appeal constituted excusable neglect and that its time to appeal should therefore be extended. In support of that claim, it asserts that the judgment was not entered on the docket sheet and was not noted in the New York Law Journal.
DISCUSSION
Rule 4(a)(5) of the Federal Rules of Appellate Procedure permits a party to move for an extension of time where its failure to file a timely appeal was due to “excusable neglect.” The Second Circuit has held that an extension should not be granted absent “a compelling showing” that such extension is necessary to effectuate the purposes of the rule. Fase v. Seafarers Welfare & Pension Plan, 574 F.2d 72, 76 (2d Cir.1978); see In re Orbitec Corp., 520 F.2d 358, 362 (2d Cir.1975).
CONCLUSION
In accordance with the foregoing, Fried-; man/Meyer’s motion for an extension of time to file its appeal is denied.
It is SO ORDERED.
. The judgment provided that Friedman/Meyer was entitled to recover on its claim for declaratory relief and denied all other claims and counterclaims raised in the third party action.
. Final judgment was entered in the main action on September 27, 1983, pursuant to the Court’s Opinion and Order dated June 15, 1983.
. Fed.R.App.P. 4(a)(1) provides that a notice of appeal in a civil action “shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from."
. The docket entry stated:
Fid Final Jdgmt on third-party claims & counterclaims!/] Third-par pltff, Friedman/Meyer & add’l defts on CC’s Friedman & Meyer, have jdgmt against third-par defts Int’l Film L.P. & Int'l Film Inc declaring that the agreement dtd 3/7/80 is terminated, null & void. etc. Sprizzo, J.
. Friedman/Meyer contends that the docket entry relates to its proposed judgment, not to the final judgment signed by the Court. That argument lacks merit. Proposed judgments are not filed and do not become part of the official court file; thus, Friedman/Meyer’s proposed judgment would not have appeared on the docket sheet. Moreover, the actual final judgment is clearly marked as Document # 78.
. In addition, the Court notes that notice of the judgment appeared in the New York Law Journal on June 5, 1984, contrary to Friedman/Meyer’s assertion. It was, however, erroneously listed under Judge Weinfeld’s name. For that reason, this Court bases its decision denying an extension of time to appeal primarily on Friedman/Meyer’s failure to note and follow up on the docket entry and only secondarily on its failure to see the notation in the New York Law Journal.