Andrew Hango v. George Atkinson,et al

Filing 191

ORDER, For the foregoing reasons. Plaintiff's motion for relief from judgment (Dkt. 171) is DENIED. The Clerk of Court is respectfully DIRECTED to mail a copy of this order by certified mail, return receipt requested, to pro se Plaintiff Andrew Hango at his address of record. So Ordered by Judge Nicholas G. Garaufis on 6/1/2018. (c/m as directed, certified mail receipt no. 7011 2000 0000 4074 6943) (Lee, Tiffeny)

pIf

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

ANDREW HANGO,
Plaintiff,
ORDER

-against08-CV-3970(NGG)
GEORGE ATKINSON et al..
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

On February 23,2010, after a two-day jury trial before Judge Tucker L. Melancon,^ the
jury found in favor of Defendants George Atkinson and Lawrence Marcus on Plaintiff Andrew

Hango's excessive-force claim, and the court entered judgment on the same day. (J.(Dkt. 163).)

Plaintiff, now proceeding pro se? moves,pursuant to Rule 60(b)(3) ofthe Federal Rules of Civil
Procedure,for relieffrom the February 23,2010,judgment in favor of Defendants, (Mot. for

Relieffrom J.(Dkt. 171);^Def. Mem.in Opp'n to PI. Mot.for Relieffrom J.(Dkt. 186); PI.

Reply Mot.(Dkt. 188); J.) For the reasons provided below,the court determines that Plaintiffs
motion is untimely. In light ofthe court's determination that Plaintiffs motion is untimely, it
need not address the merits ofPlaintiffs motion. Nevertheless,the court notes that Plaintiffs

motion identifies no valid reason for why the court should grant Plaintiff relieffrom the court's

judgment. Thus, even ifPlaintiff's motion had been timely, the court would still deny the
motion.

Accordingly,Plaintiffs motion is DENIED.

'This case was reassigned from Judge Melancon, who was visiting from the U.S. District Court for the Western
District ofLouisiana,to the undersigned on June 28,2017. (June 28,2017, Order Reassigning Case.)
^ Because Plaintiffis pro se. the court construes Plaintiff's motion liberally. See Corcoran v. N.Y.Power Auth.. 202
F.3d 530, 536(2d Cir. 1999).
1

I.

BACKGROUND

Plaintiff, then represented by counsel, filed his amended complaint on July 19,2007, in

which he alleged, among other things, that Defendants applied excessive force while attempting
to remove Plaintiff from the United States at John F. Kennedy Intemational Airport("JFK").

(Am. Compl.(Dkt. 67).) After voluntarily dismissing his other claims(Notice of Voluntary

Dismissal(Dkt. 82); Stip. & Order of Partial Dismissal and Amending Case Caption(Dkt. 119)),
Plaintiff's excessive-force claim proceeded to trial. On February 23, 2010, after a two-day jury
trial before Judge Melancon,the jury found in favor of Defendants, and the court entered
judgment on the same day. (J.)

Thereafter, Plaintiff appealed the judgment to the United States Court of Appeals for the
Second Circuit. Plaintiff argued that the judgment should be reversed due to(1)improper venue;

(2)ineffective assistance of counsel and "fraud [in the] actions" of counsel, which resulted in his
attorneys improperly agreeing to voluntarily dismiss the denial-of-medical-care claims;(3)fraud
in the failure ofDefendants to present surveillance tape from JFK and eyewitnesses at trial;(4)
the absence at trial oftwo jurors selected by Plaintiff;(5)errors in the court's rulings against

Plaintiff on the motions in limine: and (6)the timing ofthe filing ofDefendants' motion in
limine. which Plaintiff alleged occurred on the eve oftrial. Br. for Appellant, Hango v. Rovall,
466 F. App'x 30(2d Cir. 2012)
(summary order)(No. 10-1063),ECF No. 78.
The Second Circuit affirmed the February 23,2010,judgment by summary order,

rejecting all ofPlaintiffs arguments—^holding that they were either meritless or waived. Hango.

466 F. App'x at 32-35. Plaintiffthen petitioned the Second Circuit for a panel rehearing, or, in
the altemative, for rehearing en banc. Petition for Rehearing En Banc. Hango.466 F. App'x 30
(No. 10-1063), ECF No. 133. Plaintiffs petition also requested relief pursuant to Rule 60(b).

(Id.) On June 12, 2012,the Second Circuit denied Plaintiffs petition. Order, Hango.466 F.
App'x 30(No. 10-1063), EOF No. 146.

On May 4,2017, almost five years after the Second Circuit denied Plaintiffs petition.
Plaintifffiled the motion that is now before the court. (Mot. for Relieffrom J.)
n.

DISCUSSION

According to Rule 60(c)(1) ofthe Federal Rules of Civil Procedure,"[a] motion under
Rule 60(b) must be made within a reasonable time—and for [motions under Rule 60(b)(1),(2),
and (3),] no more than a year after the entry ofthe judgment or order or the date ofthe

proceeding." Fed. R. Civ. P. 60(c)(1). Thus, a motion made under Rule 60(b)(3) must be made
"no more than a year after the entry ofthe judgment." Id. "This limitations period is absolute."
Warren v. Garvin, 219 F.3d 111, 114(2d Cir. 2000); see East End Eruv Ass'n. Inc. v. The Vill.

of Westhamptnn Reach. No. ll-CV-213(AKT),2015 WL 5774981, at *2(E.D.N.Y. Sept. 30,

2015)("A motion under Rule 60(b)(3) has a strict one-year statute of limitation."). District
courts cannot extend the time to act under Rule 60(b). Brown v. State Farm Fire & Cas. Co., 574

F. App'x 46,47(2d Cir. 2014)(summary order)("The time limits placed on a Rule 59(e) or Rule
60(b) motion may not be extended by the district court."). Further, the one-year statute of
limitations for Rule 60(b)(3) motions applies with equal force to pro se litigants. S^ Warren,

219 F.3d at 114; King v. First Am.Investigations, 287 F.3d 91,114(2d Cir. 2002)(holding that
a pro se Rule 60(b)(3) motion filed less than two years after entry ofjudgment was untimely).
Plaintiffs motion is untimely because it was not filed within one year ofthe date ofthe

entry ofthe judgment from which it seeks relief. Plaintifffiled his motion on May 4,2017—
more than seven years after this court entered judgment against him, and almost five years after
the Second Circuit affirmed this court's judgment and denied Plaintiffs request for rehearing^

banc. Thus, even ifthe operative date starting Plaintiffs one-year window to file his Rule 60(b)
motion were June 12,2012,the date ofthe Second Circuit's denial of his request for rehearing^
banc. Plaintiffs Rule 60(b) motion would still be approximately four years late.

Additionally, even ifPlaintiffs motion were construed as a motion seeking relief under

Rule 60(d)(3), this would not enable him to avoid the one-year statute oflimitations. See East
EndEruvAss'n.Inc.. 2015 WL 5774981, at *3; Wallace v. United States. No. 09-CV-3927,

2014 WL 3611549, at *2(E.D.N.Y. July 22, 2014)("[FJailure to raise a fraud claim within one

year under Rule 60(b)(3) precludes a litigant from alleging that the same fraud entitles it to
equitable relief[under Rule 60(d)(3)] absent extraordinary circumstances."(alterations in
original)(quoting In re Hoti Enters.. L.P.. 549 F. App'x 43,44(2d Cir. 2014))).

Further, even ifthe requirement were not that the motion be filed within one year, and if

the requirement instead were that the motion be filed within a "reasonable time," Plaintiff has
also failed to file his motion within a "reasonable time."

In light ofthe court's determination that Plaintiffs motion is untimely, it need not
address the merits of Plaintiffs motion. Notwithstanding this, the court notes that Plaintiffs
motion identifies no valid reason for why the court should grant Plaintiff relief from the court's

judgment. Thus, even if Plamtiffs motion had been timely, the court would still deny the
motion.

m.

CONCLUSION

For the foregoing reasons. Plaintiffs motion for relieffrom judgment(Dkt. 171)is
DENIED.

The Clerk of Court is respectfully DIRECTED to mail a copy ofthis order by certified
mail, return receipt requested, to pro se Plaintiff Andrew Hango at his address ofrecord.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn,New York
June

2018

NICHOLAS G. GARAlrf^S
United States District Judge