EASTWOOD AUTO BODY AND GARAGE INC v. CITY OF WATERBURY 10 (1998)

United States Court of Appeals,Second Circuit.

EASTWOOD AUTO BODY AND GARAGE, INC., doing business as Eastwood Towing, James Messer, and Lucille Messer, Plaintiffs-Appellants, v. CITY OF WATERBURY, Edward D. Bergin, Jr., Mayor, Individual and official capacity as Mayor of the City of Waterbury, Francis Sullivan, Individual and official capacity as Administrative Aide to the Mayor of the City of Waterbury, Edward F. Bergin, Individual and official capacity as Superintendent of Police of the City of Waterbury, Richard J. White, Individual and official capacity as Deputy Superintendent of Police for the City of Waterbury, John 1-10 Does, Defendants-Appellees.

Docket 97-9278.

Decided: September 25, 1998

Before: WINTER, Chief Judge, and KEARSE, WALKER, JACOBS, LEVAL, CALABRESI, CABRANES, PARKER, STRAUB, POOLER, and SACK, Circuit Judges.

Michael P. McGovern, Ayres & Parkey, Knoxville, TN, for Plaintiffs-Appellants. Cheryl E. Hricko, Corporation Counsel's Office, City of Waterbury, Waterbury, CT, for Defendants-Appellees.

Plaintiffs-appellants Eastwood Auto Body and Garage, Inc., et al., seek in banc review of the decision by a panel of this Court to deny appellants' motion for additional time to file a petition for rehearing with suggestion for rehearing in banc. Upon motion, this Court may “for good cause shown ․ enlarge the time prescribed” to file a petition for rehearing or modify an erroneous decision even though the time for rehearing has expired. Fed. R.App. P. 26(b) & 40; see Braniff Airways, Inc. v. Curtiss-Wright Corp., 424 F.2d 427, 429 (2d Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 59, 27 L.Ed.2d 59 (1970). The decision whether to grant the motion is discretionary. See Marino v. Ortiz, 888 F.2d 12, 13-14 (2d Cir.1989) (per curiam ) (denying Rule 40 motion for extension of time based on new Supreme Court decision as “nothing but an attempt to reopen a final judgment because of a subsequent change in the law”).

Discretion in this case was soundly exercised. There is a pattern of appellants' repeated defaults, lateness and extensions, both here and in the district court. Such conduct wastes everyone's resources, breeds incivility between counsel, and (unless papers show otherwise, as these do not) betrays counsel's view that the litigation lacks promise except to delay a day of reckoning.

The motion for in banc review is denied. The mandate shall issue forthwith.

PER CURIAM:

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