Lepre v. New York State Insurance Fund et al

Filing 61

DECISION AND ORDER denying # 52 Plaintiff's motion for relief from the August 18, 2014 Order and Judgment; denying # 54 Plaintiff's letter request for an entry of default; and denying # 59 Plaintiff's letter motion for an Article III Court. Signed by Judge Glenn T. Suddaby on 12/2/14. (lmw) (Copy served upon pro se plaintiff via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
JOHN DAVID LEPRE,
Plaintiff,
v.

1:13-CV-0926
(GTS/CFH)

NEW YORK STATE INSURANCE FUND; THE
UNITED STATES; and THE STATE OF
NEW YORK,
Defendants.
_________________________________________
APPEARANCES:

OF COUNSEL:

JOHN DAVID LEPRE
Plaintiff, Pro Se
1475 Orphan School Road
Kingsley, PA 18826
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants, New York State
Insurance Fund and the State of New York
The Capitol
Albany, NY 12224-0341

ADRIENNE J. KERWIN, ESQ.
JAMES B. McGOWAN, ESQ.

HON. RICHARD S. HARTUNIAN
United States Attorney for the N.D.N.Y.
Counsel for Defendants, The United States
James Hanley U.S. Courthouse
100 South Clinton Street
Syracuse, NY 13261-7198

WILLIAM F. LARKIN, ESQ.

GLENN T. SUDDABY, United States District Judge

ORDER
Currently before the Court in this action filed by pro se plaintiff, John David Lepre
(“Plaintiff”) against the three above-named government entities are (1) a motion for relief from

this Court’s August 18, 2014 Judgment (“the Judgment”) pursuant to Rule 60(b)(4) of the
Federal Rules of Civil Procedure (Dkt. No. 52); (2) a letter requesting entry of default against
defendants (Dkt. No. 54); and (3) a letter motion requesting a three-judge court (Dkt. No. 59) by
Plaintiff. For the reasons set forth below, each of Plaintiff’s motions are denied.
I.

RELEVANT BACKGROUND
On December 18, 2014, this Court issued a Decision and Order granting motions to

dismiss Plaintiff’s complaint by defendants New York State Insurance Fund and State of New
York (Dkt. No. 10) and by defendant United States (Dkt. No. 19) and denying motions by
Plaintiff for an Order (1) identifying Defendants as corporate rather than government entities; (2)
sanctioning Defendants for delaying this action; (3) granting Plaintiff judgment on the pleadings,
or, in the alternative, summary judgment; and (4) providing the status of this action (Dkt. Nos.
37, 45, 46 and 47). The Court further concluded that, because there is no basis in law or fact for
any of Plaintiff’s claims, leave to re-plead would be futile. Therefore, the Court dismissed
Plaintiff’s Complaint as against all Defendants with prejudice. (See Dkt. No. 48.)
Consequently, Judgment was entered against Plaintiff in favor of Defendants. (See Dkt. No. 49.)
Familiarity with the underlying Decision and Order is presumed. See Lepre v. New York
State Ins. Fund, No. 13-CV-0926, 2014 WL 4093658 (N.D.N.Y. Aug. 18, 2014).
A.

Plaintiff’s Rule 60 Motion

Generally, liberally construed, in support of his motion for relief from the Judgment,
Plaintiff argues that the Judgment is void because this Court committed judicial misconduct by
(1) failing to convene a panel of three judges and (2) acting outside of its jurisdiction as an
Article I Court in dismissing the complaint with prejudice. (See generally Dkt. No. 52.)

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Generally, in response to Plaintiff’s motion, defendant United States asserts the following
two arguments. First, the United States argues, Plaintiff fails to make a colorable argument for
relief under Fed. R. Civ. P. 60(b). Second, and finally, the United States argues, Plaintiff is not
entitled to a three-judge panel. (See generally Dkt. No. 53.) The New York State defendants
join in the United States’ response, but add that this Court’s decision to dismiss Plaintiff’s
complaint was proper for all of the reasons set forth in its Decision and Order. (See generally
Dkt. No. 56.)
B.

Plaintiff’s Additional “Motions”

Generally, liberally construed, Plaintiff requests an entry of default against the
Defendants because their responses to his Rule 60 motion were not timely filed. (See generally
Dkt. No. 56.)
Plaintiff’s subsequent “letter motion,” filed after the Defendants filed their responses to
Plaintiff’s Rule 60 motion, is entitled, “Demand for Article III Court” and includes Plaintiff’s
notices to Defendants that their respective “out of time” responses are being returned. (See
generally Dkt. No. 59.)
II.

RELEVANT LEGAL STANDARDS
A.

Legal Standard Governing Motions for Relief From Judgment

Pursuant to Rule 60 of the Federal Rules of Civil Procedure, a court may relieve a party
from a final judgment or order for various reasons, including, among others, “(1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . ; (3) fraud . . .; or
(4) the judgment is void[.]” Fed. R. Civ. P. 60(b). The standard for granting such a motion is
strict. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995). A motion for relief
from judgment “should not be granted where the moving party seeks solely to relitigate an issue
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already decided.” Shrader, 70 F.3d at 257. Furthermore, such a motion is not to be used for
“presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
‘second bite at the apple’....” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998).
B.

Legal Standard for Convening a Three-Judge Court

By statute, “[a] district court of three judges shall be convened when otherwise required
by Act of Congress, or when an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment of any statewide legislative body.”
28 U.S.C. § 2284(a). When an application for a three-judge panel is presented to the district
court, the court must determine whether constitutional claim is substantial; whether the
complaint alleges a basis for equitable relief; and whether the cases as presented otherwise
comes
within the statutory requirements. See Loever v. Spargo, 144 F. App’x 168, 170 (2d Cir. 2005)
(citing Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294 (1962)
(discussing a prior version of section 2284))).
III.

ANALYSIS
Plaintiff’s motion for relief from the Judgment is denied, generally for the reasons cited

by the United States in its memorandum of law. (See Dkt. No. 53 [United States’ Opp’n Mem.
of Law].) The Court would only add the following two points.
First, plaintiff has cited no reason for this Court to convene a three-judge panel. There is
no claim involving apportionment of constitutional districts or statewide legislative bodies.
Moreover, the Federal Tort Claims Act, pursuant to which Plaintiff’s underlying claims were
brought, does not require a three-judge panel. Thus, plaintiff’s “demand” for a three judge
panel is not supported by law.
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Second, Plaintiff’s motion for relief from the Judgment has no arguable legal or factual
basis and is therefore, frivolous. By way of example, Plaintiff’s argument that this Court is an
Article I Court and therefore usurped its power and committed a “federal crime” and “act of
misconduct” by failing to convene a three-judge panel and by dismissing Plaintiff’s claims with
prejudice is clearly false and objectively frivolous. Plaintiff is cautioned that any further
frivolous filings in this Court may result in this Court issuing an Order to Show Cause why
Plaintiff should not be barred from filing any further documents or motions in this action without
first obtaining leave of the Court.
For these reasons, Plaintiff’s motion for relief from the Judgment is denied.
Plaintiff’s remaining motions are likewise denied because they lack an arguable basis in
law or fact for the following two reasons.
First, Plaintiff’s letter request for entry of “default” cites defendants’ failure to timely
respond to his Rule 60 motion as the factual basis upon which he is entitled to a default
judgment. By this Court’s September 4, 2014 Notice, which was delivered to Plaintiff by regular
mail, defendants’ responses to Plaintiff’s motion were due on or before September 29, 2014.
The United States filed its response on September 26, 2014 and the New York State defendants
filed their response on September 29, 2014. Accordingly, the defendants’ responses were, in
fact, timely.
Second, entry of default is only appropriate “[w]hen a party against whom judgment for
affirmative relief is sought has failed to please or otherwise defend,” which is clearly not the
case here. Fed. R. Civ. P. 55(a). See also Johnson v. Wolan, No. 10-CV-1622, 2010 WL
5076821, at *3 (S.D.N.Y. Dec. 13, 2010) (the filing of a motion to dismiss falls squarely within
the ambit of the phrase “otherwise defend”) (citing In re Sumitomo Copper Litigation, 204
F.R.D. 58, 61 (S.D.N.Y. 2001) (internal quotation marks omitted)).
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For these reasons, each of Plaintiff’s motions is denied.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for relief from the August 18, 2014 Order and
Judgment (Dkt. No. 52) is DENIED; and it is further
ORDERED that Plaintiff’s letter request for an entry of default (Dkt. No. 54) is
DENIED; and it is further
ORDERED that Plaintiff’s letter motion for an Article III Court (Dkt. No. 59) is
DENIED.
Dated: December 2, 2014
Syracuse, New York

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