New York Appellate Lawyers Blog

Saturday, June 15, 2013

Our appellate group secures victory in the United States Court of Appeals, Second Circuit by successfully dismissing an interlocutory appeal.

Marzano Lawyers PLLC’s appellate group successfully represented the appellee in Grasson v. Bd. of Educ., 11-5295-cv in dismissing the appellant’s interlocutory appeal.  The 2nd Circuit clarified the exception to the FRAP 1291 finality rule and held that an interlocutory appeal on the basis of FRCP Rule 60(b) will be jurisdictionally barred unless the district court assumes jurisdiction and power to act when neither exists.  The Circuit decision in Rineiri v. News Syndicate Co, 385 F.2d 818 left an opening for this appellant to seek appellate jurisdiction because the District Court granted a Rule 60(b) motion that was brought within one year but four months after the decision that the plaintiff sought to vacate. 

This decision closes that opening and holds that so long as the district court had jurisdiction pursuant to Rule 60(b), an appeal will be barred, and the circuit will not address any improprieties within that decision.

The text of the summary order follows:

Unpublished Disposition

502 Fed.Appx. 97 (Table)


United States Court of Appeals,

Second Circuit.


Robert GRASSON, Plaintiff–Appellee,


BOARD OF EDUCATION, TOWN OF ORANGE, Tim James, Kimberly Altschuler, Jeanne Consiglio, Joseph Marulli, David Pite, Kristen C. Powell, Ernie Robear, Ron Ruotolo, Larry Schwartz, Tony Vitti, Patricia P. Ziman, Alfred Pullo, Defendants–Appellants.

No. 11–5295–cv.

Nov. 13, 2012.

Appeal from an order of the United States District Court for the District of Connecticut (Peter C. Dorsey, Judge).


UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal from the order entered on November 21, 2011, is DISMISSED for lack of jurisdiction.

Attorneys and Law Firms

Alexandria L. Voccio, Howd & Ludorf, LLC, Hartford, CT, for Appellants.

Naved Amed, Esq., New York, NY, for Appellees.





Defendants Board of Education of the Town of Orange and various individually named board members appeal from the grant of plaintiff Robert Grasson's motion pursuant to Fed. R. Civ. 60(b) to vacate the award of summary judgment against him on claims arising from his termination as a public school bus driver, due to his failure to file an opposition. We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to dismiss the appeal.

The parties do not dispute that the order reinstating the case is of a type normally barred from immediate appellate review. See 28 U.S.C. § 1291 (affording appellate jurisdiction over “final decisions of the district courts of the United States”); Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir.1996) (dismissing interlocutory appeal of denial of Rule 60(b)(4) motion); see also Richardson–Merrell, Inc. v. Koller, 472 U.S. 424, 430, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) (observing that “[i]mmediate review of every trial court ruling ... would impose unreasonable disruption, delay, and expense” and “would also undermine the ability of district judges to supervise litigation”). For purposes of 28 U.S.C. § 1291, “final decisions” are those that end litigation on the merits. See, e.g., Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). Because “[t]he order at issue in this case has no such effect” and, indeed, “ensures that litigation will continue in the District Court,” it is not “final” and thus not appealable under § 1291. Id.

Defendants do not contend that a statutory exception to the “final decision” rule applies. See 28 U.S.C. § 1292(a)-(b); see also Fed.R.Civ.P. 54(b). Rather, they submit that interlocutory appeal is authorized by Rinieri v. News Syndicate Co., 385 F.2d 818 (2d Cir.1967), where we observed that “the law is settled that if the District Court assumes jurisdiction and power to act under [Fed.R.Civ.P. 60(b) ] where neither exists, an appeal will lie from its order vacating the original order.” Id. at 821; see also Thorp v. Scarne, 599 F.2d 1169, 1172 n. 2 (2d Cir.1979) (noting “line of *99 cases upholding the appealability of district court orders granting relief from a final judgment, purportedly under Fed.R.Civ.P. 60(b), where the district court has improperly assumed jurisdiction and power to act”). Rinieri, however, is a circumscribed holding not applicable in these circumstances.1

The Rinieri plaintiff sought to have his libel action “reinstated almost two and a half years after it was ordered dismissed for lack of prosecution.” 385 F.2d at 819. On appeal from the grant of reinstatement, we noted that (1) the motion could not have been granted pursuant to Rule 60(b)(1) because it was brought “more than a year after the entry of the judgment or order,” Fed.R.Civ.P. 60(c)(1); and (2) the grounds for relief did not bring the motion “within the extremely meagre scope ... of Rule 60(b)(6),” Rinieri v. News Syndicate Co., 385 F.2d at 822 (internal quotation marks omitted). Thus, because the district court had “acted without any basis in law, disregarding the limitations” in Rule 60(b) entirely, we concluded that it “lacked jurisdiction to act and th[e] order [wa]s appealable.” Id. (holding question of jurisdiction “necessarily included” in merits of appeal).

Here, there is no question that “the trial court had the power under Rule 60(b)[ ] to grant the relief requested” by plaintiff. Cavalliotis v. Salomon, 357 F.2d 157, 159 (2d Cir.1966) (emphasis added) (dismissing interlocutory appeal from grant of motion that facially qualified for relief under Rule 60(b)(6)). Plaintiff moved to vacate the award of summary judgment within four months of its issuance, bringing the motion within the one-year time limit applicable to Fed.R.Civ.P. 60(b)(1) (allowing relief from judgment based on “mistake, inadvertence, surprise, or excusable neglect”).

While defendants contend that the district court “made factual findings that precluded it from granting the motion to vacate,” Appellants' Reply Br. 4, these findings, at best, bear upon the propriety of awarding relief, and not the court's authority to do so. Thus, even if the court's characterization of plaintiff's counsel's failure to oppose summary judgment as “inexcusable,” “unacceptable,” and “indefensible,” Ruling on Mot. To Vacate, Grasson v. Bd. of Educ., 09–cv–1584 (D.Conn. Nov. 21, 2011), ECF No. 73, and of counsel's arguments in support of the ensuing motion as “implausible,” id., might suggest an abuse of discretion in granting the motion, see generally Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 387, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (discussing concept of “excusable neglect” within context of “party's failure to comply with a court-ordered filing deadline”), such circumstances are not enough under Rinieri to afford us jurisdiction to review the matter at this time. If necessary, defendants' challenge to the Rule 60(b) vacatur, along with their asserted right to a judgment against plaintiff, “may be effectively vindicated following final judgment.” Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d at 541.

Accordingly, the appeal is DISMISSED for lack of jurisdiction.

Grasson v Bd. of Educ., Town of Orange, 502 Fed Appx 97 [2d Cir 2012]



Marzano Lawyers PLLC Appellate Attorneys assist clients in New York and Connecticut. We serve all of New York City and the surrounding area, including but not limited to Manhattan, Brooklyn, Queens County, Kings County, Bronx, Yonkers, Staten Island, Westchester County, New York County, Hudson County, Suffolk County, & Nassau County.

© 2020 Marzano Lawyers PLLC | Disclaimer
1120 Ave of the Americas, Hippodrome Building – 4th Floor, New York, NY 10036
| Phone: 212.655.9561
Via Nazionale, 69, Roma, IT 00184
| Phone: +39 089.224.842
Via Torretta, 4, Salerno, IT 84122
| Phone: +39 089.224.842

Appellate Law Overview | New York Appeals | Civil Appeals | Criminal Appeals | Matrimonial Appeals | Estate Appeals | Commercial Appeals | Real Estate Appeals | Appellate Trial Support | Important Links & Forms


Attorney Website Design by
Zola Creative