PlainSite :: Landry, et al v. Marine Trans Lines, et al, Louisiana Eastern District Court Case No. 2:00-cv-00267-EEF Document 20: Order

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Case 2:00-cv-00267-EEF Document20_ Filed 12/19/2000 Page 1 of 7 COPY IN CHAMBERS FILE US. DISTRIEP at UNITED STATES DISTRICT COURT —EASTERN Dus iret pet wi TG f EASTERN DISTRICT OF LOUISIANA ANNYDEC | PM 3:55 Oi is tere KEITH LANDRY, et al. CIVIL ACTION

V. NO. 00-267 MARINE TRANSPORT LINES, INC,, et al. SECTION “L” PLAINTIFFS’ EX PARTE MOTION FOR EXTENSION OF TIME TO FILE APPEAL UNDER F.R.A.P. 4(a)(5) NOW INTO COURT, through undersigned counsel, come Plaintiffs and respectfully submit this motion for extension of time to file an appeal pursuant to F.R.A.P. 4(a)(5); further representing as follows:

1. By order dated November 22, 2000 this Court dismissed with prejudice the claims of plaintiffs in this litigation. A true and correct copy of the Court’s minute entry is attached hereto as Exhibit A and is incorporated herein by reference.

2. On November 29, 2000 judgment was entered in favor of defendants and against plaintiffs, in accordance with the Order of November 22, 2000. 3, Entry of the judgment in this case was occasioned by the circumstances set forth in more detail in Plaintiffs’ Motion for Relief from Judgment Under F.R.C.P. 60(b), filed contemporaneously herewith and is incorporated herein by reference.

DATE OF ENTRY —
JAN - 2 2001

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Case 2:00-cv-00267-EEF Document20_ Filed 12/19/2000 Page 2of7 Because the tenth day after entry of judgment, as calculated pursuant to F.R.C.P. 6, was last Friday (December 15, 2000), Plaintiffs’ Rule 60 motion does not extend the time for appealing the November 29 judgment. F.R.A.P. 4(a)(4)(A)(vi). Plaintiffs respectfully suggest that their Rule 60 motion warrants relief from the judgment entered in this case, for the reasons set forth therein, and deserves the consideration of this Court.

Unless the time is otherwise extended, however, plaintiffs must file a notice of appeal as early as December 22, 2000. After the notice of appeal is filed, this Court may lose the power to act on plaintiffs’ Rule 60 motion. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Rutherford v. Harris County, Tex., 197 F.3d 173 (5"™ Cir. 1999); In re: Federal Facilities Realty Trust, 227 F.2d 651 (7th Cir. 1955).

This Court is authorized to extend, by an additional thirty days, the time for filing the notice of appeal, if the Court finds either excusable neglect or good cause. F.R.A.P. 4(a)(5)(A). Plaintiffs respectfully suggest that consideration of their Rule 60 motion is good cause for extending the appeal period.

Because this motion is filed less than thirty days after the order which is the subject of the Rule 60 motion and the possible appeal, this motion may be acted upon ex parte. F.R.A.P. 4(a)(5)(B).

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Case 2:00-cv-00267-EEF Document20_ Filed 12/19/2000 Page3of7

9. In order to consider the merits of plaintiffs’ Rule 60 motion, therefore, plaintiffs request that this Court extend the time for filing the appeal. WHEREFORE, Plaintiffs respectfully request this Court to extend by thirty days the time for filing the appeal pursuant to F.R.A.P. 4(a)(5)(A).

Respectfully submitted, ug x MICHAEL G. SPAG

Stuart H. Smith, Esq. No. 17805 Michael G. Stag, Esq. No. 23314 SACKS & SMITH, L.L.C.

One Canal Place 365 Canal Street - Suite 2850 New Orleans, Louisiana 70130 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a copy of the foregoing pleading on counsel for all parties proceeding by placing same in the United States Mail, properly addressed, and first class postage prepaid.

This a™,,, of December, 2000.

Michael G. Stag

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Case 2:00-cv-00267-EEF Document20_ Filed 12/19/2000 Page 4of7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KEITH LANDRY, et al. CIVIL ACTION

V. NO. 00-267 MARINE TRANSPORT LINES, INC., et al. SECTION “L”

ORDER

UPON CONSIDERING Plaintiffs’ Motion for Extension of Ti e to File Appeal under F.R.A.P. 4(a)(5), IT IS HEREBY ORDERED that the Coyrt finds that good cause exists, under a F.R.A.P. 4(a)(5 (A), for extending

for plaintiffs to file a notice of appeal and the

motion is GRANTED; and an‘@dditional thirty (30) day extension of time to file a notice

New Orleans, Louisiana, this J) day of oe , 2000.

JDGE ~\/7 ~ } ~

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i1/23/0 Case SOG OO2BBHEF Documear@)s sated 12/19/2000 , Page 5of7 So

- * Fa Note 7671 if o

MINUTE ENTRY
FALLON, J. ETIA S. WHITE

ome 23, 2000 LORE ERR UNITED STATES DISTRICT COURT BASTERN DISTRICT OF LOUISIANA KEITH LANDRY, ET AL. * CIVIL ACTION VERSUS * NO. 60-267 MARINE TRANSPORT LINES, INC., ET AL. * SECTION"L" Before the Court isthe motion to dismiss of defendants Marine Transport Lines, ioe, Marine Puboenel & Provisioning, Ine, and Marine Transport Management Company inc. For the following reasons, defendant motion is GRANTED.

Plaitiffs Keith Landry, Regina Feur, Ricardo Legoretta, and Barry Patin filed this suit defendants on January 27, 2000 seeking to recover damages far personal injuries sustained ; aginst white working as seamen aboard the S/S Marine Chetsist Gregory Guth Sled suit for the plaintiffs and is the only counse! that hes bean listed as counsel of record.

{ Qu July 28, 2000, the Court convened « status confereuce in chambers. Plaintiffs’ counsel Aid] not ettend and the Court was unsuccessful in locating plaintifis’ counsel ot his ofiice by telpbome: Following the conference. the Court issued a minute entry ordering plaintiffs’ counsel to rovide written ons to ths Court within five days to show cause why plaintifix’ case should nee denise owas of rset, ig wc, Cour wu sai

DATE OF ENTRY ‘ —_!

NOV 2 2 2000 a ;

EXHIBIT

a ee = = 0D

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$27 27D 2eB SOL BISARMEE DocumehSO® SHRBd 12/19/2000 Page6of7 ‘#

wee

In response to the Court's mioute entry, Sidngy J. Smolinaxay ecomacted the Court by sledhonsand lotterte indicat that Gragery Guth was no louger sith the fem representing pam

- and to request T= weeis in which to cbeaia a substitete counsel for ploimtias. In 3 July 31, 2000 conpapondence to the Coust, Smolinskey advised the Court that Jelm Massicot had agreed to reprpsent plaimtifi’ claims.

: Notwithstanding Smolinskey's assurances, Mzassicot nevar enrolled as counsel of record nor sppéured on behalf of plaintifis before the Court Defense counsel further explain that they atteanpted te contact both Guth and Massicot to set depositions of each plaintiff but asither counsel retufped their telephons calls, Defense counsel nonetheless noticed the deposition of Regina Feur for Septernber 28, 2000. At the time of the deposition, Massicott did offer a statement explaining that Feur no longer wished to be involved in the litigation and that he would return all documents related to plaintifiy cave to the Sacks law finm. In addition to Feu, plaintifis Landry, Legarreta, and Patty also fhilad to appear for their noticed depositions.

; Defendants filed this motion to dismiss on October 26, 2000 and noticed it for hearing on Nevbeber 22, 2600 at 9-00am. without cralargument. Neither plaintiffs aor their counsel of recore Biledia bef in opposition to ths motion. ;

<A district court suay disaniss an action for fhilure to prosecuts or to comply with any court orca See Fed. R. Civ. P. 41(b}; Larson v. Scott, 157 F.3d 1030, 1031 (Sth Cir. 1998); McCullough ¥. Lypough, $35 F.2d 1126, 1127 (Sth Cir. 1988). In the present case, plaintiffs’ counsel and pleintifis have) fsilad repeatedly to participate in the litigation and to prosecute their claims. Accordingly, diumjssal for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is appripriste, See Fed. R. Civ. P. 41(b).

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acta ate Decor ce O14 1 oucmwowo Aen e _- tow . 11/23/sqCase D:0BAGVsO O26 39BE F Docum@ats20*® SaFtted 12/19/2000 Page 7 of 7_ #9 . - se . . ot SE:

. ! ° Defendants Marine Transport Lines, lnc. Marine Portounel & Provisioning, inc., and Mariza _ ‘Trmport Management Company, Inc.'s motion to dismiss with prejodiee the claims of Keith Longhy, Regina Few, Ricardo Legoretta, and Barry Patin is therefore GRANTED. : ' t \ } eo ee Suath and Sacks One Canal Place 363 Canal Steet, Suite 2850 New Orleans, LA 70130 ee Tee hae a cee eee we eset nee wet wet eee ae

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PDF Page 2	f Case 2:00-cv-00267-EEF Document20_ Filed 12/19/2000 Page 1 of 7 COPY IN CHAMBERS FILE US. DISTRIEP at UNITED STATES DISTRICT COURT —EASTERN Dus iret pet wi TG f EASTERN DISTRICT OF LOUISIANA ANNYDEC \| PM 3:55 Oi is tere KEITH LANDRY, et al. CIVIL ACTION V. NO. 00-267 MARINE TRANSPORT LINES, INC,, et al. SECTION “L” PLAINTIFFS’ EX PARTE MOTION FOR EXTENSION OF TIME TO FILE APPEAL UNDER F.R.A.P. 4(a)(5) NOW INTO COURT, through undersigned counsel, come Plaintiffs and respectfully submit this motion for extension of time to file an appeal pursuant to F.R.A.P. 4(a)(5); further representing as follows: 1. By order dated November 22, 2000 this Court dismissed with prejudice the claims of plaintiffs in this litigation. A true and correct copy of the Court’s minute entry is attached hereto as Exhibit A and is incorporated herein by reference. 2. On November 29, 2000 judgment was entered in favor of defendants and against plaintiffs, in accordance with the Order of November 22, 2000. 3, Entry of the judgment in this case was occasioned by the circumstances set forth in more detail in Plaintiffs’ Motion for Relief from Judgment Under F.R.C.P. 60(b), filed contemporaneously herewith and is incorporated herein by reference. DATE OF ENTRY — JAN - 2 2001

PDF Page 3	Case 2:00-cv-00267-EEF Document20_ Filed 12/19/2000 Page 2of7 Because the tenth day after entry of judgment, as calculated pursuant to F.R.C.P. 6, was last Friday (December 15, 2000), Plaintiffs’ Rule 60 motion does not extend the time for appealing the November 29 judgment. F.R.A.P. 4(a)(4)(A)(vi). Plaintiffs respectfully suggest that their Rule 60 motion warrants relief from the judgment entered in this case, for the reasons set forth therein, and deserves the consideration of this Court. Unless the time is otherwise extended, however, plaintiffs must file a notice of appeal as early as December 22, 2000. After the notice of appeal is filed, this Court may lose the power to act on plaintiffs’ Rule 60 motion. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Rutherford v. Harris County, Tex., 197 F.3d 173 (5"™ Cir. 1999); In re: Federal Facilities Realty Trust, 227 F.2d 651 (7th Cir. 1955). This Court is authorized to extend, by an additional thirty days, the time for filing the notice of appeal, if the Court finds either excusable neglect or good cause. F.R.A.P. 4(a)(5)(A). Plaintiffs respectfully suggest that consideration of their Rule 60 motion is good cause for extending the appeal period. Because this motion is filed less than thirty days after the order which is the subject of the Rule 60 motion and the possible appeal, this motion may be acted upon ex parte. F.R.A.P. 4(a)(5)(B).

PDF Page 4	Case 2:00-cv-00267-EEF Document20_ Filed 12/19/2000 Page3of7 9. In order to consider the merits of plaintiffs’ Rule 60 motion, therefore, plaintiffs request that this Court extend the time for filing the appeal. WHEREFORE, Plaintiffs respectfully request this Court to extend by thirty days the time for filing the appeal pursuant to F.R.A.P. 4(a)(5)(A). Respectfully submitted, ug x MICHAEL G. SPAG Stuart H. Smith, Esq. No. 17805 Michael G. Stag, Esq. No. 23314 SACKS & SMITH, L.L.C. One Canal Place 365 Canal Street - Suite 2850 New Orleans, Louisiana 70130 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have served a copy of the foregoing pleading on counsel for all parties proceeding by placing same in the United States Mail, properly addressed, and first class postage prepaid. This a™,,, of December, 2000. Michael G. Stag

PDF Page 5	Case 2:00-cv-00267-EEF Document20_ Filed 12/19/2000 Page 4of7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KEITH LANDRY, et al. CIVIL ACTION V. NO. 00-267 MARINE TRANSPORT LINES, INC., et al. SECTION “L” ORDER UPON CONSIDERING Plaintiffs’ Motion for Extension of Ti e to File Appeal under F.R.A.P. 4(a)(5), IT IS HEREBY ORDERED that the Coyrt finds that good cause exists, under a F.R.A.P. 4(a)(5 (A), for extending for plaintiffs to file a notice of appeal and the motion is GRANTED; and an‘@dditional thirty (30) day extension of time to file a notice New Orleans, Louisiana, this J) day of oe , 2000. JDGE ~\/7 ~ } ~

PDF Page 6	i1/23/0 Case SOG OO2BBHEF Documear@)s sated 12/19/2000 , Page 5of7 So - * Fa Note 7671 if o MINUTE ENTRY FALLON, J. ETIA S. WHITE ome 23, 2000 LORE ERR UNITED STATES DISTRICT COURT BASTERN DISTRICT OF LOUISIANA KEITH LANDRY, ET AL. * CIVIL ACTION VERSUS * NO. 60-267 MARINE TRANSPORT LINES, INC., ET AL. * SECTION"L" Before the Court isthe motion to dismiss of defendants Marine Transport Lines, ioe, Marine Puboenel & Provisioning, Ine, and Marine Transport Management Company inc. For the following reasons, defendant motion is GRANTED. Plaitiffs Keith Landry, Regina Feur, Ricardo Legoretta, and Barry Patin filed this suit defendants on January 27, 2000 seeking to recover damages far personal injuries sustained ; aginst white working as seamen aboard the S/S Marine Chetsist Gregory Guth Sled suit for the plaintiffs and is the only counse! that hes bean listed as counsel of record. { Qu July 28, 2000, the Court convened « status confereuce in chambers. Plaintiffs’ counsel Aid] not ettend and the Court was unsuccessful in locating plaintifis’ counsel ot his ofiice by telpbome: Following the conference. the Court issued a minute entry ordering plaintiffs’ counsel to rovide written ons to ths Court within five days to show cause why plaintifix’ case should nee denise owas of rset, ig wc, Cour wu sai DATE OF ENTRY ‘ —_! NOV 2 2 2000 a ; EXHIBIT a ee = = 0D

PDF Page 7	tewriatéeew Sf eorm re OMS SA 2 1 SyenuSUS: $27 27D 2eB SOL BISARMEE DocumehSO® SHRBd 12/19/2000 Page6of7 ‘# wee In response to the Court's mioute entry, Sidngy J. Smolinaxay ecomacted the Court by sledhonsand lotterte indicat that Gragery Guth was no louger sith the fem representing pam - and to request T= weeis in which to cbeaia a substitete counsel for ploimtias. In 3 July 31, 2000 conpapondence to the Coust, Smolinskey advised the Court that Jelm Massicot had agreed to reprpsent plaimtifi’ claims. : Notwithstanding Smolinskey's assurances, Mzassicot nevar enrolled as counsel of record nor sppéured on behalf of plaintifis before the Court Defense counsel further explain that they atteanpted te contact both Guth and Massicot to set depositions of each plaintiff but asither counsel retufped their telephons calls, Defense counsel nonetheless noticed the deposition of Regina Feur for Septernber 28, 2000. At the time of the deposition, Massicott did offer a statement explaining that Feur no longer wished to be involved in the litigation and that he would return all documents related to plaintifiy cave to the Sacks law finm. In addition to Feu, plaintifis Landry, Legarreta, and Patty also fhilad to appear for their noticed depositions. ; Defendants filed this motion to dismiss on October 26, 2000 and noticed it for hearing on Nevbeber 22, 2600 at 9-00am. without cralargument. Neither plaintiffs aor their counsel of recore Biledia bef in opposition to ths motion. ;

PDF Page 8	acta ate Decor ce O14 1 oucmwowo Aen e _- tow . 11/23/sqCase D:0BAGVsO O26 39BE F Docum@ats20*® SaFtted 12/19/2000 Page 7 of 7_ #9 . - se . . ot SE: . ! ° Defendants Marine Transport Lines, lnc. Marine Portounel & Provisioning, inc., and Mariza _ ‘Trmport Management Company, Inc.'s motion to dismiss with prejodiee the claims of Keith Longhy, Regina Few, Ricardo Legoretta, and Barry Patin is therefore GRANTED. : ' t \ } eo ee Suath and Sacks One Canal Place 363 Canal Steet, Suite 2850 New Orleans, LA 70130 ee Tee hae a cee eee we eset nee wet wet eee ae

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Landry, et al v. Marine Trans Lines, et al Document 20: Order