Gonzalez v. City of Hialeah

Filing 135

ORDER denying 133 Motion for Relief. Signed by Judge Robert N. Scola, Jr on 3/27/2018. (vmz)

United States District Court
for the
Southern District of Florida
Frank Gonzalez, Plaintiff,
v.
City of Hialeah, Defendant.

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) Civil Action No. 17-20128-Civ-Scola
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Order on Motion For Relief from Order on Motion to Dismiss
This matter is before the Court upon the Plaintiff Frank Gonzalez’s
Motion for Relief from Order on Motion to Dismiss as to Count One. (ECF No.
133.) In the motion, Gonzalez specifically invokes Rule 60(b) of the Federal
Rules of Civil Procedure, and maintains that he is entitled to relief under
subsections (3) and (6) of that rule, and requests an indicative ruling pursuant
to Rule 62.1. Gonzalez filed a notice of appeal of the Court’s order of dismissal
on September 6, 2017 (ECF No. 111), which appeal is pending before the
Eleventh Circuit.
Rule 60(b) permits a court to relieve a party from a final judgment or
order upon several enumerated grounds. See Fed. R. Civ. P. 60(b)(1)-(6).
Pursuant to Rule 60(b)(3), a court may relieve a party from a final judgment or
order upon a showing of fraud, misrepresentation, or misconduct by an
opposing party. Fed. R. Civ. P. 60(b)(3). To obtain relief under Rule 60(b)(3), the
moving party must prove by clear and convincing evidence the adverse party
obtained the verdict through fraud, misrepresentations, or other misconduct.
Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1287 (11th Cir. 2000). The
moving party must also demonstrate the alleged conduct prevented him from
fully presenting his case. Id. In addition, “Rule 60(b)(6) motions must
demonstrate that the circumstances are sufficiently extraordinary to warrant
relief.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 741 F.3d 1349, 1355
(11th Cir. 2014) (internal quotations and citations omitted). “It is well
established, . . . that relief under Rule 60(b)(6) is an extraordinary remedy
which may be invoked only upon a showing of exceptional circumstances.”
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984) (internal citation
and quotations omitted). Relief under Rule 60(b)(6) applies only to cases that
do not fall into any other category under the rule. United States v. Route 1, Box
111, Firetower Rd., 920 F.2d 788, 791 (11th Cir. 1991). Whether to grant relief
pursuant to Rule 60(b) is a matter of discretion. Aldana, 741 F.3d at 1355
(citing Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006) (internal citation
and quotations omitted)).

This is Gonzalez’s third time expressing his disagreement with the
Court’s order of dismissal and its reasoning (ECF No. 102), which the Court
has already noted is not a proper basis for reconsideration of its orders or other
relief. (See ECF No. 104, 117.) Once again, the motion restates and expounds
upon Gonzalez’s previous arguments and improperly urges the Court to rethink
previous decisions. Upon review, Gonzalez is not entitled to relief under either
provision of Rule 60(b).
Pursuant to Rule 62.1 of the Federal Rules of Civil Procedure, “[i]f a
timely motion is made for relief that a court lacks authority to grant because of
an appeal that has been docketed and is pending, the court may (1) defer
considering the motion; (2) deny the motion; or (3) state either that it would
grant the motion if the court of appeals remands for that purpose of that the
motion raises a substantial issue.” Fed. R. Civ. P. 62.1(a). Accordingly,
Gonzalez’s motion (ECF No. 133) is denied. This case shall remain closed.
Done and ordered at Miami, Florida, on March 27, 2018.
_______________________________
Robert N. Scola, Jr.
United States District Judge