TRUPEI v. UNITED STATES et al

Filing 33

MEMORANDUM AND OPINION. Signed by Judge Henry H. Kennedy on 4/22/11. (DJMAC, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MICHAEL TRUPEI,
Plaintiff,
v.

Civil Case No. 08-351 (HHK)

UNITED STATES, et al.,
Defendants.

MEMORANDUM OPINION
On January 30, 2009, the Court granted the Defendants’ motion to dismiss this case
because Plaintiff conceded the motion by failing to timely oppose it. Order, ECF No. 28. Over
two years later, Plaintiff now moves for the Court to reconsider its dismissal order. Mot. for
Reconsideration, ECF No. 30 [hereinafter Mot.]. Specifically, Plaintiff moves for
reconsideration under Federal Rule of Civil Procedure 59(e), any other federal rule, any federal
law, “any Common Law Writ such as ‘coram nobis,’” and “any ‘British North-American Act.’”
Id. at 1 (capitalization in original). In support of this motion, Plaintiff cites “newly discovered
evidence,” arguing that he only recently discovered that the Court (1) had not received his
motion to stay, which he allegedly filed in response to the Court’s order requiring that Plaintiff
file an opposition of other response to Defendants’ motion to dismiss, and (2) had granted
Defendants’ motion to dismiss, the order for which he allegedly never received. Id. at 7–8.
Plaintiff further argues that Defendants, by intentionally disrupting the flow of his legal mail,
have deprived him of his due process rights under the Fifth Amendment. Id. at 8–12. This
motion will be denied.

Rule 59(e) concerns motions to alter or amend a judgment, providing that such a motion
“must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). This
deadline cannot be expanded. Fed. R. Civ. P. 6(b)(2); see Derrington-Bey v. D.C. Dep’t of
Corrections, 39 F.3d 1224, 1225 (D.C. Cir. 1994) (“District courts do not have even the
customary discretion given by [Rule] 6(b) to enlarge the Rule 59(e) period.”) Plaintiff’s motion,
filed over two years after entry of the judgment of dismissal from which he seeks relief, is
therefore untimely under Rule 59(e).
The Court will also construe Plaintiff’s motion as made under Rule 60(b)(1) and (2),
because Plaintiff mentions newly discovered evidence and loss of documents in the mail. That
Rule provides that, “[o]n motion and just terms, the court may relieve a party . . . from a final
judgment, order, or proceeding for,” among other reasons, “(1) mistake, inadvertence, surprise,
or excusable neglect;” or “(2) newly discovered evidence.” Fed. R. Civ. P. 60(b). Several courts
have held that “lost mail resulting in the missing of a deadline”—here, the timely filing of an
opposition to Defendants’ motion to dismiss—“is within the contemplation of ‘excusable
neglect’ as listed in Rule 60(b).” U.S. v. Zapata-Vicente, No. 3:01-cr-61, 2006 WL 2381959, *4
(E.D. Va. Aug. 17, 2006) (citing Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th Cir.
1996) (“The term ‘excusable neglect’ . . . refers to the missing of a deadline as a result of such
things as . . . lost mail . . . .”)).
But a motion made under Rule 60(b)(1) or (2) may be made “no more than a year after
the entry of the judgment or order” from which a movant seeks relief. Fed. R. Civ. P. 60(c)(1).
As with the deadline under Rule 59(e), this deadline cannot be expanded. Fed. R. Civ. P.
6(b)(2); see Carr v. District of Columbia, 543 F.2d 917, 925–26 (D.C. Cir. 1976) (“We see no
elasticity in Rule 60(b)’s one-year time limit on the motions to which it applies; it is not

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judicially extendable . . . .”). This remains true even when the basis for an untimely motion is
the loss of a document in the mail. See, e.g., La.-Pac. Corp. v. Occupational Safety & Health
Rev. Comm’n, No. 95-70479, 1996 WL 416300, *1 (9th Cir. July 24, 2006) (denying a Rule
60(b)(1) motion for relief from final judgment, filed nearly three years after such judgment, by a
party that believed it had settled, but where the other party mailed the settlement agreement for
filing to the wrong address). Plaintiff’s motion, filed over two years after entry of the judgment
of dismissal from which he seeks relief, is therefore untimely under Rule 60(b)(1)–(2).
The Court will also construe Plaintiff’s motion as made under Rule 60(b)(4), because
Plaintiff mentions violations of Fifth Amendment due process. That rule provides that “[o]n
motion and just terms, the court may relieve a party . . . from a final judgment” if, among other
things, “(4) the judgment is void.” Fed R. Civ. P. 60(b). If an order or judgment is entered
without due process, that order or judgment is void and subject to a motion under Rule 60(b)(4).
See, e.g., In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985) (“[A] judgment may
be set aside on voidness grounds under Rule 60(b)(4) for a violation of the due process clause of
the Fifth Amendment.”). See generally 11 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2862 (2d ed.) (“A judgment . . . is void . . . if the court that rendered
it . . . acted in a manner inconsistent with due process of law.”) A motion under Rule 60(b)(4) is
not subject to a one-year limitation period. See Fed. R. Civ. P. 60(c)(1).
But Plaintiff has not alleged that the dismissal order in this case is void. Indeed, Plaintiff
admits that he received the motion to dismiss, as well as the Court’s order for Plaintiff to respond
in opposition to that motion else risk it being granted as conceded. Mot. at 7. Plaintiff instead
alleges something else: that prison staff violated his Fifth Amendment rights by interfering with
other court filings, namely, dispatch of the alleged motion to stay and receipt of the dismissal

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order. See Mot. at 8–12.1 While interference with the mails may provide fodder for a separate
Fifth Amendment action against prison staff, see, e.g., Wall v. Pearson, No. 5:08-cv-234, 2008
WL 3539729, *2 (S.D. Miss. Aug. 11, 2008) (“[I]if and when the petitioner is prejudiced by the
denial of the prison officials to process his mail to or from the courts or his attorneys, the
primary means to assert such a claim is by filing a civil action at that time.”), Plaintiff makes no
allegation of a due-process violation as to the order from which Plaintiff seeks relief in this
motion. Plaintiff’s motion under Rule 60(b)(4) will therefore be denied.
Beyond Plaintiff’s mention of due process under the Fifth Amendment, Plaintiff invites
the Court to consider “any Federal Law” that might support his motion for reconsideration. Mot.
at 1. The Court declines this invitation and will not examine the entire corpus juris of the United
States in an attempt to find authority Plaintiff has failed to cite himself.
Plaintiff also invites the Court to consider “any Common Law Writ such as ‘coram
nobis’” that might support his motion for reconsideration. Id. The writs to which Plaintiff refers
have been abolished in civil actions in the federal courts of the United States. Fed. R. Civ. P.
60(e) (“The following are abolished: bills of review, bills in the nature of bills of review, and
writs of coram nobis, coram vobis, and audita querela.”). See generally 11 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 2867 (2d ed.). However, “applications
for relief mistakenly designated as one of the writs abolished by Rule 60(b) must be treated as if

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Plaintiff does contend that his allegedly lost motion to stay was submitted in response to
Defendants’ motion to dismiss, and that he failed to submit a memorandum in opposition to that
motion while “he was waiting for this Court to rule” on his own motion never received by the
Court. Mot. at 7. But a motion to stay is not a proper response in opposition to a dispositive
motion, because it does not consider or counter arguments made in the dispositive motion. And
regardless, in the absence of a ruling on a motion to stay—whether because the Court received
the motion but has not yet ruled on it, or because the Court never received the motion in the first
place—a litigant must proceed as if the action is live—which it is. Thus, the alleged loss of
Plaintiff’s motion to stay is irrelevant to his failure to timely oppose Defendants’ motion.
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brought under the . . . Rule; nomenclature is irrelevant.” In re Brown, 68 F.R.D. 172, 174
(D.D.C. 1975). The Court has already considered Plaintiff’s motion under Rule 60(b) above.
Finally, Plaintiff also invites the Court to consider “any ‘British North-American Act’”
that might support his motion for reconsideration. Mot. at 1. Plaintiff, a resident of Canada,
presumably refers to the British North America Act of 1867 and its amending acts dating to
1975, which were promulgated by the Parliaments of the United Kingdom and Canada and
which form the basis of Canada’s Constitution. See Eugene A. Forsey, How Canadians Govern
Themselves 12 (7th ed. 2010), available at http://www2.parl.gc.ca/Sites/LOP/AboutParliament/
Forsey/PDFs/How_Canadians_Govern_Themselves-7ed.pdf. Plaintiff makes no attempt to
explain why the Court should consider this foreign law or why any of these acts in any way
support Plaintiff’s motion. The Court will therefore decline Plaintiff’s invitation to foray into the
organic law of Canada.
For the reasons set forth above, Plaintiff’s motion for reconsideration will be denied.
However, Plaintiff may be able to pursue an independent action for equitable relief in the nature
of the relief sought in this motion. See Fed. R. Civ. P. 60(d)(1). See generally 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2868 (2d ed.). A separate Order
consistent with this Memorandum Opinion shall issue this date.

/s/
Henry H. Kennedy, Jr.
United States District Judge

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