    12-4654(L)
    Stephens v. JRD Management


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 20th
    day of November, two thousand thirteen.

    PRESENT:
              ROSEMARY S. POOLER,
              REENA RAGGI,
              RICHARD C. WESLEY,
                   Circuit Judges.
    _____________________________________

    Kendell Stephens,

                   Plaintiff-Appellant-Cross-Appellee,

                   v.                                            12-4654(L);
                                                                 13-84(XAP)
    3500 Snyder Avenue Owners
    Corporation, JRD Management,
    Maxx Properties,

                   Defendants-Appellees-Cross-Appellants,

    Local Union 2 of New York State
    Independent Union of Building Service
    Employees & Factory Workers,

                   Defendant-Appellee,

    Local 2 of Building Service Employees
    & Factory Workers, USWU, IUJAT,

              Defendants.
    _____________________________________
FOR PLAINTIFF-APPELLANT-CROSS-            Kendell Stephens, pro se,
APPELLEE:                                 Brooklyn, NY.


FOR DEFENDANTS-APPELLEES-CROSS-          Diane Krebs, Bran C.
APPELLANTS 3500 SNYDER AVENUE OWNERS     Noonan, Gordon & Rees,
CORPORATION, JRD MANAGEMENT, AND MAXX    LLP, New York, NY.
PROPERTIES:

FOR DEFENDANT-APPELLEE LOCAL UNION       Steven H. Kern, Barnes
2 OF NEW YORK STATE INDEPENDENT          Iaccarino & Shepherd,
UNION OF BUILDING SERVICE EMPLOYEES      LLP, Elmsford, NY.
& FACTORY WORKERS:

       Appeals from the judgment and order of the United States

District Court for the Eastern District of New York (Gleeson,

J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the matter be REMANDED for supplementation of the

record consistent with this order.

       Plaintiff-Appellant-Cross-Appellee Kendell Stephens,

proceeding pro se, appeals from the district court’s judgment

granting the defendants’ motion to dismiss his amended complaint.

Defendants-Appellees-Cross-Appellants 3500 Snyder Avenue Owners

Corporation, JRD Management, and Maxx Properties cross appeal

from the district court’s Order granting Stephens’s pro se motion

for an extension of time to file his notice of appeal.    We assume

the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal, which

we reference only as needed to explain our decision.




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     The threshold issue in this appeal is whether the district

court acted within its discretion when it allowed Stephens to

file his notice of appeal after the time period for filing that

notice had expired. In general, Rule 4(a)(1) of the Federal Rules

of Appellate Procedure and 28 U.S.C. § 2107(a) require a party to

file a notice of appeal within 30 days of the entry of the

judgment or order being appealed. “‘[T]he taking of an appeal

within the prescribed time is mandatory and jurisdictional.’” In

re Worldcom, Inc., 708 F.3d 327, 329 (2d Cir. 2013)(quoting

Bowles v. Russell, 551 U.S. 205, 209 (2007)).

     However, district courts have the authority to extend the

time for filing a notice of appeal if, among other things, “a

party so moves no later than 30 days after the time prescribed by

[] Rule 4(a) expires.”   Fed. R. App. P. 4(a)(5)(A)(i). In

addition, the district court may reopen the time to file a notice

of appeal in certain circumstances when the moving party did not

receive timely notice of the entry of judgment. See Fed. R. App.

P. 4(a)(6). We review for abuse of discretion orders extending

the time to file a notice of appeal under Rule 4(a)(5) or

reopening the time to file an appeal under Rule 4(a)(6). See In

re Worldcom, Inc., 708 F.3d at 340 (Rule 4(a)(6)); Goode v.

Winkler, 252 F.3d 242, 245 (2d Cir. 2001) (Rule 4(a)(5)).

     In this case, the district court’s judgment dismissing

Stephens’s amended complaint was entered on September 5, 2012.


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Seventy-two days later, on November 16, 2012, Stephens filed a

pro se notice of appeal and a pro se motion seeking an extension

of time to file a notice of appeal. On December 20, 2012, the

district court granted Stephens’s motion for extension of time to

file his notice of appeal in a one-sentence Order, which stated:

“I conclude that plaintiff’s [] extension of time to file his

notice of appeal should be granted.” The district court’s

December 20, 2012 Order did not specify whether it relied on Rule

4(a)(5) or Rule 4(a)(6) to grant Stephens’s motion for extension

of time.

     The district court could not have relied on Rule 4(a)(5) to

grant Stephens’s motion for extension of time because that

provision requires that such a motion be filed within the 30-day

period immediately following the original 30-day appeal period.

Here, Stephens’s motion was not filed until November 16, 2012,

which was 72 days after the September 5, 2012 judgment and 12

days after Rule 4(a)(5)’s 30-day grace period expired.

     Accordingly, it appears that the district court must have

relied on Rule 4(a)(6) to reopen the time for Stephens to file

his notice of appeal. That Rule provides:

     The district court may reopen the time to file an appeal
     for a period of 14 days after the date when its order to
     reopen is entered, but only if all the following
     conditions are satisfied:
          (A) the court finds that the moving party did not
     receive notice under Federal Rule of Civil Procedure
     77(d) of the entry of the judgment or order sought to be
     appealed within 21 days after entry;

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          (B) the motion is filed within 180 days after the
     judgment or order is entered or within 14 days after the
     moving party receives notice under Federal Rule of Civil
     Procedure 77(d) of the entry, whichever is earlier; and
          (C) the court finds that no party would be
     prejudiced.

Fed. R. App. P. 4(a)(6). “The responsibility for determining

predicate compliance with [Rule 4(a)(6) ] is vested in the

district court and generally the district court will be best

suited to weigh the competing factors relevant to a Rule 4(a)(6)

motion.” In re Worldcom, Inc., 708 F.3d at 340–41 (internal

quotation marks and footnote omitted). In this case, the district

court did not make any findings as to why Stephens’s motion for

an extension of time complied with the requirements of Rule

4(a)(6), or state why the court was exercising its discretion to

reopen the time for Stephens to file a notice of appeal.

     Given the district court’s lack of findings and failure to

state its reasons for allowing Stephens to file a late notice of

appeal, we cannot adequately assess whether the district court

abused its discretion. Accordingly, pursuant to the procedure

outlined in United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994),

we remand this case for the district court to make findings and

provide a reasoned explanation for its December 20, 2012 Order.

On remand, the district court shall consider the applicability of

our decision in In re Worldcom Inc., 708 F.3d 327 (2d Cir. 2013),

which we issued after the district court’s December 20, 2012

Order. The mandate shall issue forthwith.

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     These appeals will be reinstated, without need for new

notices of appeal, upon notice by either side to this Court by

letter that the district court has provided its explanation.

Such letter must be dated no later than 30 days after the

district court enters its explanation. For disposition of this

appeal, this matter shall be referred to a new panel in the

ordinary course.


                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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