Zavala et al v. CNP, INC. d/b/a Carlino's Long Island Italian Restaurant of Mineola et al

Filing 82

ORDER ADOPTING REPORT AND RECOMMENDATIONS : Zavala's motion to reopen his case is denied. See attached. A copy of this Order is being mailed by Chambers to Zavala at 1335 2nd Ave. Berwick, PA 18603. Ordered by Judge Denis R. Hurley on 12/6/2017. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------X
FERNANDO ACOSTA-LOPES and JOSE
EFRON GARCIA MARTINEZ,
Plaintiffs,
-against-

ORDER
15-CV-3406(DRH0(ARL)

ABDUL WALI HUSSANI, CNP, INC. d/b/a
Carlino’s Long Island Italian Restaurant of
Mineola and CARLO CORTEO,
Defendant.
-----------------------------------------------------X

HURLEY, Senior District Judge:
Presently before the Court is (1) the Report and Recommendation, dated October 3, 2017,
of Magistrate Judge Arlene R. Lindsay recommending that pro se plaintiff Carlos Zavala’s
(“Zavala”) motion to reopen his case pursuant to Fed. R. Civ. Pro. 60(b) be denied; (2) an Order
of Magistrate Judge Lindsay denying of Zavala’s motion for extension of time to respond to her
Order of September 15, 2017; and (3) an undated letter from Zavala, filed October 26, 2017,
“explaining why he could not answer the three correspondences he received . . .”
Some background is in order to place these matters in context.
By Order dated October 11, 2016, the Judge Lindsay granted a motion by Zavala’s
counsel to withdraw and gave Zavala thirty days to obtain new counsel or notify the Court that he
intended to proceed pro se. Zavala did not respond. An Order to show cause was then issued by

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Judge Lindsay on March 29, 2017 giving Zavala one more opportunity to advise the Court in
writing whether he intended to proceed with this case via counsel or pro se and warning him that
the failure to respond would result in a recommendation that his case be dismissed for failure to
prosecute. Again, Zavala did not respond. On May 10, 2017 this Court adopted a April 18, 2017
Report and Recommendation of Judge Lindsay and dismissed Zavala’s claims for failure to
prosecute.
On August 29, 2017 Zavala filed a motion to reopen his case, which motion was referred
to Judge Lindsay. Judge Lindsay construed the application as one pursuant to Fed. R. Civ. P.
60(b) and issued an Order dated September 15, 2017 directing Zavala to file a letter explaining in
detail why he failed to respond to the Court’s previous Orders and advising him that the failure to
respond would result in a recommendation that his motion be denied. The Order was served on
Zavala by the Court via Federal Express to his last known address, 84 Stahley Street Brentwood
NY 11722. 1 Zavala did not respond to the Order.
On October 3, 2017 Judge Lindsay issued a Report and Recommendation that the motion
to reopen be denied reasoning:
[B]ecause Zavala’s August 2017 letter did not sufficiently
describe the circumstances supporting his application, the Court
asked for clarification. Zavala failed to provide such clarification,
despite being warned that a failure to respond would result in a
recommendation . . . that his application be denied. Given
Zavala’s failure to respond to the Court’s Order as well as his
failure to demonstrate by “highly convincing evidence” why his
application should be granted, the Court . . . recommends that
1

This address was contained in a letter received from Zavala on July 24, 2017. See DE

67-1.
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Zavala’s August 2017 application to reopen this case be denied.
[October 3, 2017 Report and Recommendation (DE 74) at 2.] A copy of the Report and
Recommendation was again served on Zavala by Federal Express.
On October 10, 2017, Zavala filed a motion for extension of time to respond to the
September 15, 2017 Order, together with a notice of change of address. According to the motion,
Zavala “was in the process of moving to Pennsylvania and was unable to properly answer in
time.” (DE 75.)
By Order dated October 18, 2017, Judge Lindsay denied the request as (1) there was no
indication that he did not receive the Court’s September 15, 2017 Order and Federal Express
confirmed as delivery to the address on September 20, 2017; (2) to the extent it was a motion for
reconsideration of the October 3, 2017 Report and Recommendation that he was busy moving
provides no basis for reconsideration: (3) the October 3, 2017 Report and Recommendation was
confirmed as delivered to the Brentwood address on October 6, 2017, before Zavala filed a
change of address. Judge Lindsay did extend his time to file objections to October 3, 2017 Report
and Recommendation to November 1, 2017.
An undated letter was received by the Court from Zavala on October 26, 2017. Parts of
the letter are undecipherable with much of it addressing his apparently broken relationship with
his former counsel. With respect to his receipt of various Court Orders it states: “[M]y biggest
problem has been that I have been moving repeatedly. Sometimes in the year I moved 5 bez and
I did not report it to the court just once I notified them of the change of address that was 84
sthanley st Brenwood and today I changed state to 1335 2nd ave Berwick pennsylvania and that

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grabbed the rasons by which I have not answered the three notifications that mean sent and I do
not know if they sent me to the other address of 49 cedar swamp rd glen cove n and 11542 but
the only ones that I received are three in envelopes of fedex . . . .” [DE 78 (misspellings, lack of
capitalization and other errors in original).] The Court construes this undated letter as objections
to the October 3, 2017 Report and Recommendation.
As objections have been filed, the Court reviews this matter de novo. See Fed. R. Civ. P.
72(b).
Pursuant to Rule 60(b)(1) a court may relieve a party from a final judgment for the
following reasons “mistake, inadvertence, surprise or excusable neglect.” Fed. R. Civ. Pro.
60(b)(1). "A motion under Rule 60(b) is addressed to the sound discretion of the trial court."
Velez v. Vassallo, 203 F. Supp. 2d 312, 333 (S.D.N.Y. 2002) (citing Mendell on Behalf of
Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990)). Nonetheless, the Second Circuit has
cautioned that Rule 60(b) provides "extraordinary judicial relief" to be granted "only upon a
showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see
also Employers Mut. Cas. Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996) ("A movant
under Rule 60(b) must demonstrate 'exceptional circumstances' justifying the extraordinary relief
requested."). “Relief under Rule 60(b) is generally not favored . . . .” Ins. Co, of N. Am. v. Pub.
Serv. Mut. Ins. Co., 609 F.3d 122, 131 (2d Cir. 2010). In evaluating a Rule 60(b) motion, the
courts of this circuit also require that the evidence in support of the motion be highly convincing,
that the movant show good cause for the failure to act sooner, and that no undue hardship be
imposed on the other parties as a result. See, e.g., Kotlicky v. U.S. Fidelity & Guar. Co., 817
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F.2d 6, 9 (2d Cir. 1987); Williams v. New York City Dept. of Corr., 219 F.R.D. 78, 84 (S.D.N.Y.
2003). Although a pro se motion is read liberally and interpreted to raise the strongest arguments
suggested, “a pro se litigant is not excused from the requirement of producing highly convincing
evidence to support a Rule 60(b) motion.” Alvarado v. Manhattan Worker Career Center, 2003
WL 22462032, *2 (S.D.N.Y. Oct. 30, 2003); accord Hall v. North Bellmore Sch. Dist., 2016 WL
4005792, * 2 (E.D.N.Y. July 25, 2016).
Zavala has not produced convincing evidence that his failure to respond to Judge
Lindsay’s Orders or to prosecute this case was the result of mistake, inadvertence, or excusable
neglect. Particularly compelling in this regard is Zavala’s admission that he received the orders in
the “envelopes of fedex.” In other words, he received various court orders, including the
September 15, 2017 Order directing him to file a letter explaining in detail why he failed to
respond to the Court’s previous Orders. That he did not respond because he was too busy moving
constitutes neither mistake, inadvertence, nor excusable neglect. Cf. Marquez v. Perlman, 2012
WL 2895018, *3 (S.D.N.Y. July 16, 2012) (if plaintiff wished to prosecute his case he should
have provided court with updated address and inquired as to its status); Warren v. Kelly, 20 F.
Supp.2d 110 (E.D.N.Y.2002) (transfers between prisons not exceptional circumstances
warranting the granting of a Rule 60 motion).
In addition, there has been a significant passage of time since the complaint was filed and
discovery completed, all to the prejudice of defendants. See, e.g., Toriola v. FJC Sec. Serv. Inc.,
2017 WL 819483, *5 (Mar. 1, 2017). Zavala’s wage claims begin in 2008 and discovery has been
completed for over one year with Zavala having failed to appear for his scheduled deposition, all
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of which make it more difficult for defendants to obtain information and evidence regarding his
claim.
Zavala’s motion to reopen his case is denied.
Dated: Central Islip, N.Y.
December 6, 2017

/s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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