13-1972-cv
United States v. Pelt


                          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
ASUMMARY ORDER@). A PARTY CITING 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 27th day of May, two thousand fourteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Plaintiff-Appellee,

                        v.                                               No. 13-1972-cv

RITA A. PELT,
                                 Defendant-Appellant.
----------------------------------------------------------------------
FOR APPELLANT:                                    Rita A. Pelt, Esq., pro se, Uniondale, New York.

FOR APPELLEE:                                    Varuni Nelson, Margaret M. Kolbe, Assistant
                                                 United States Attorneys, for Loretta E. Lynch,
                                                 United States Attorney for the Eastern District of
                                                 New York, Brooklyn, New York.




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       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Arthur D. Spatt, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the appeal from a partial judgment entered on March 22, 2013, and

finalized on April 12, 2013, is DISMISSED.

       Defendant Rita A. Pelt, an attorney proceeding pro se, appeals from a partial

judgment in favor of the United States on claims that Pelt failed to repay her student loans.

We assume the parties’ familiarity with the facts and record of the underlying proceedings,

which we reference only as necessary to explain our decision to dismiss the appeal for lack

of jurisdiction.

       After the district court entered a final judgment in this case on April 12, 2013, Pelt

filed a notice of appeal challenging, inter alia, the March 22, 2013 partial judgment. At

the same time, she also filed a Fed. R. Civ. P. 60 motion in the district court to vacate the

April 12th judgment. On the United States’ motion, we held the appeal in abeyance until

the district court resolved that motion. On October 28, 2013, the district court granted

Pelt’s motion in part and vacated that part of the April 12, 2013 judgment granting default

relief, concluding that the United States had failed to follow Local Civ. R. 55.2(b), which

requires the non-defaulting party to obtain a Certificate of the Clerk of the Court noting the

default. After the United States satisfied the Local Rule, the district court entered a new

final judgment in its favor on November 20, 2013, from which Pelt has not filed a notice of


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appeal. In these circumstances we are obliged to dismiss Pelt’s appeal for lack of

jurisdiction. See Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 110 (2d Cir. 2001).

       Insofar as Pelt appeals from the partial summary judgment entered on March 22,

2013, that is not, by itself, a final judgment over which we may exercise jurisdiction. The

Rules of Civil Procedure permit a district court to enter final judgment as to one or more,

but fewer than all, claims “only if the court expressly determines that there is no just reason

for delay”; without such an express determination, “any order or other decision, however

designated . . . does not end the action . . . and may be revised at any time before the entry

of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R.

Civ. P. 54(b).   The partial judgment entered on March 22, 2013, does not mention Rule

54(b) or “expressly determine[] that there is no just reason for delay.” Accordingly, that

partial judgment was never certified for appeal. See Swede v. Rochester Carpenters

Pension Fund, 467 F.3d 216, 219 (2d Cir. 2006).

       We have held that, where an appellant files a notice of appeal before final judgment

is entered, that “premature notice of appeal may ripen into a valid notice of appeal if a final

judgment has been entered by the time the appeal is heard and the appellee suffers no

prejudice.” Id. at 220 (internal quotation marks omitted); see also Leonhard v. United

States, 633 F.2d 599, 611 (2d Cir. 1980) (“In the absence of prejudice to the nonappealing

party, this Court . . . has declined to dismiss premature notices of appeal where subsequent

actions of the district court have imbued the order appealed from with finality.”). But


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there is no reason to apply that principle here, where Pelt filed a timely—not a

premature—notice of appeal from a judgment that was then vacated.                In such

circumstances, she was obliged to file a timely notice of appeal from the final judgment

entered on November 20, 2013. In the absence of such a notice, we lack jurisdiction to

hear the appeal.

       The appeal from the partial judgment of March 22, 2013, made final in the April 12,

2013 judgment that was later vacated, is DISMISSED.

                                  FOR THE COURT:
                                  CATHERINE O=HAGAN WOLFE, Clerk of Court




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