PEREZ v. ELIZABETH POLICE DEPARTMENT et al
OPINION. Signed by Judge Stanley R. Chesler on 11/30/2016. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ELIZABETH POLICE DEPARTMENT
Civil Action No. 12-7839 (SRC)
This matter comes before this Court on the motion to vacate judgment, pursuant to
Federal Rule of Civil Procedure 60, by Plaintiff Francisca Perez. For the reasons stated below,
the motion will be denied.
This case arises from a civil rights complaint. On August 14, 2013, this Court granted
Defendants’ motion to dismiss the Complaint and dismissed the Complaint with prejudice (the
“Dismissal Judgment.”) On September 9, 2013, Plaintiff timely filed a notice of appeal of the
Dismissal Judgment to the United States Court of Appeals for the Third Circuit. On November
27, 2013, the Third Circuit dismissed this appeal for failure to prosecute. On January 6, 2014,
Plaintiff filed the instant motion to vacate judgment. Before this Court ruled on this motion, on
March 27, 2014, Plaintiff filed a second notice of appeal to the Third Circuit of the Dismissal
On December 8, 2015, the Third Circuit issued an Order inviting this Court to respond to
a petition for a writ of mandamus filed by Plaintiff, concerning Plaintiff’s motion to vacate
judgment, pursuant to Federal Rule of Civil Procedure 60(b), filed January 6, 2014. This Court
filed a response stating that, pursuant to United States v. Georgiou, 777 F.3d 125, 145 (3d Cir.
2015), this Court lacked jurisdiction to consider Plaintiff’s motion to vacate during the pendency
of an appeal to the Third Circuit.
On November 22, 2016, this Court received an electronic notification through the ECF
system that the Third Circuit had issued an Order in this case. The Third Circuit’s Order granted
Plaintiff’s petition for mandamus and Ordered this Court to decide Plaintiff’s Rule 60 motion
within 30 days of the date of the Order. The Third Circuit stated that it had dismissed Plaintiff’s
appeal of March 27, 2014 in July of 2014, and that “there appears to be no impediment to
adjudication of the Rule 60 motion.”1 In re: Francisca Perez, C.A. No. 15-3378 (3d Cir. filed
November 22, 2016).
Plaintiff moves to vacate the Dismissal Judgment on this ground: “District Court erred in
dismissing plaintiff’s complaint without first given plaintiff notice that prior scheduling order
had been vacated denied plaintiff’s her due process rights to a hearing before vacating prior
scheduling order. [sic]” (Pl.’s Br. at 5.)
Federal Rule of Civil Procedure 60(b) states:
Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and
just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
In the Order, the Third Circuit noted a dissent from Judge Barry on the ground that the
Third Circuit’s dismissal of the March 27, 2014 appeal was not recorded on the District Court’s
docket. (Id. at n. 1.) The majority Opinion also noted that the District Court “may not have been
aware of our dismissal as it is not noted on the District Court docket.”
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
Plaintiff’s brief does not state which prong of Rule 60(b) she relies on, and this Court considers
the motion pursuant to Rule 60(b)(6).
Plaintiff’s brief refers to a “scheduling order” issued by Magistrate Judge Waldor. The
docket reflects that Judge Waldor issued the following orders in this case:
On April 12, 2013, a text order setting the Rule 16 conference for May 14,
2013 (Docket Entry No. 9);
On April 16, 2013, a letter order adjourning the Rule 16 conference to
July 8, 2013 (Docket Entry No. 11);
On July 3, 2013, an order denying Defendant’s request to adjourn the Rule
16 conference (Docket Entry No. 19);
On July 8, 2013, a text order rescheduling the Rule 16 conference to
September 23, 2013 (Docket Entry No. 20).
This is the complete list of orders issued by Magistrate Judge Waldor in this case. All the orders
issued by Magistrate Judge Waldor deal with the scheduling of the Rule 16 conference.
On April 11, 2013, Defendants filed a motion to dismiss the Complaint. On April 29,
2013, Plaintiff filed a brief in opposition to the motion. On May 7, 2013, Defendants filed a
reply brief. On August 14, 2013, this Court issued an Opinion as well as an Order, dismissing
the Complaint with prejudice.
Plaintiff appears to argue that her right to due process of law has been violated because of
a failure to give her notice of one or more changes to the date of the Rule 16 conference.
Plaintiff does not explain how this relates to the Dismissal Judgment. As regards the Dismissal
Judgment, Plaintiff was entitled to receive notice of the motion to dismiss the Complaint, and it
is clear that she did receive that notice, as she timely filed a brief in opposition to the motion.
Plaintiff has not pointed to any other notice that she was due, and this Court does not discern any
failure to provide her with notice that would have influenced the Dismissal Judgment. Even if
Plaintiff is entirely correct in her assertion that she was not notified of a change to the date of the
Rule 16 conference, this had no connection to this Court’s decision to grant Defendants’ motion
to dismiss the Complaint. Rule 61 states:
Unless justice requires otherwise, no error in admitting or excluding evidence--or
any other error by the court or a party--is ground for granting a new trial, for
setting aside a verdict, or for vacating, modifying, or otherwise disturbing a
judgment or order. At every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial rights.
Rule 61 – which specifically applies to motions to vacate a judgment – requires this Court to
disregard any error that does not affect a party’s substantial rights. Plaintiff has not persuaded
this Court that any failure of notice regarding the date of the Rule 16 conference affected her
substantial rights. The motion to vacate is denied.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: November 30, 2016
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