The opinion of the court was delivered by: POLLAK
LOUIS H. POLLAK, UNITED STATES DISTRICT JUDGE
Presently before the court is plaintiff's Motion for Reconsideration of this court's Order granting defendant Palette Prints' ("Palette") Motion for Partial Summary Judgment.
The Timeliness of Plaintiff's Motion
On February 21, 1989, this court, after oral argument, granted defendant Palette Prints' motion. The Order reflecting that disposition was entered March 1, 1989. Plaintiff moved for reconsideration on March 17, 1989, and subsequently filed a Notice of Appeal to the Court of Appeals on March 24, 1989. Because plaintiff's Motion was untimely on its face
and plaintiff had subsequently filed a Notice of Appeal, I requested the parties to brief whether this court retained jurisdiction to entertain the motion in light of Venen v. Sweet, 758 F.2d 117 (1985). Venen suggests that a Notice of Appeal filed subsequent to an untimely motion for reconsideration divests a district court of the power to consider the motion. Id. at 120-22. However, if the motion for reconsideration is timely, the divestment runs the other way -- that is, the Notice of Appeal is of no jurisdictional significance and the case remains wholly within the district court. See Griggs v. Provident Consumer Discount Company, 459 U.S. 56, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1982); Venen, supra, at 122 n.6.
The parties' responsive submissions establish that the parties had stipulated to plaintiff's late submission of its motion. That stipulation, although executed prior to the expiration of the filing deadline, was not presented to the court until the submission of plaintiff's motion; hence, the stipulation was never approved by the court.
Plaintiff's counsel explains that his delay in filing the motion is attributable to a series of miscommunications with the Clerk's Office. In late February, plaintiff's counsel, who practices out-of-state, requested that the Clerk of Court send him a copy of the Eastern District's Local Rules. At the time of counsel's request, a revised copy of the Local Rules was in production, and counsel was informed that a copy would not be available for two to three weeks. Counsel then asked for information regarding the time limit applicable to a motion for reconsideration. According to counsel, the Clerk's Office mistakenly informed him that the time limit was "thirteen days after the date of service by defendant's attorneys of a copy of the entered Order." Not until March 10, 1989, did counsel receive a copy of the Local Rules and learn of the ten-day time limit. Counsel again contacted the Clerk's Office, whereupon the clerk to whom he had originally spoke restated her mistaken belief that the time limit was thirteen days. Counsel then spoke to the clerk's supervisor, who discovered the error, and informed counsel that the time limit could be extended by stipulation.
I am satisfied that plaintiff's counsel's reliance on the Clerk's Office alleged misstatement of the applicable time period, coupled with the unusual circumstance that counsel was unable to obtain a copy of this district's Local Rules because of the timing of the reprinting of the rules, warrants treating plaintiff's motion as timely. At the same time, I would caution counsel that a stipulation executed by the parties without the approval of the court does not by its own force extend a filing deadline, particularly where the stipulation is not filed until after the original deadline's expiration.
Because I regard plaintiff's motion as timely, this court retains jurisdiction over the motion and plaintiff's contentions may be addressed on their merits.
Plaintiff's Motion for Reconsideration
Plaintiff raises two issues on reargument: first, plaintiff contends that the court inappropriately characterized as issue and claim preclusive Judge McLaughlin's finding that Palette had not engaged in tortious activity in New York; second, plaintiff maintains that sufficient probative evidence of an alleged conspiracy between Palette and defendant Parati was offered to defeat summary judgment.
The Preclusive Effect of Judge McLaughlin's Prior Findings
Plaintiff argues that Judge McLaughlin's findings regarding Palette's activities in New York are "neither issue nor claim preclusive and do not constitute the law of the case." Plaintiff Brief, at 2. In plaintiff's view, Judge McLaughlin's observation that Palette's President, Arthur Gross, was presented with a "fait accompli" by Parati's principal, Romano Emanuelli, was "mere dicta" because it was not essential to Judge McLaughlin's determination that Palette committed no tort in New York.
For reasons canvassed in my February 21, 1989 bench opinion, I remain persuaded that Judge McLaughlin's factual findings regarding Mr. Gross's interaction with Mr. Emanuelli in New York preclude relitigation of the substance and meaning of their exchange. More importantly, as I explained in my opinion, my finding that plaintiff had not presented sufficient evidence to withstand Palette's partial summary judgment motion ...