In re McRay, Richardson, Santana, Wise and Salaam Litigation

Filing 369

OPINION & ORDER #105530 re: 356 LETTER MOTION to Reopen Case on ORDER & OPINION dated March 31, 2015 addressed to Magistrate Judge Ronald L. Ellis from Gareth W. Stewart, as counsel to petitioner SH&W dated April 2, 2015, filed by Lenno x Stephen Hinds. For the reasons that follow, SHW's Rule 60 Motion and request for interest is DENIED. Furthermore, IT IS HEREBY ORDERED THAT Day Pitney LLP disburse the funds from the escrow account in accordance with the Court's March 31 Order: $237,977.50 to SHW and the remaining amount to FBK. (Signed by Magistrate Judge Ronald L. Ellis on 5/21/2015) (kko) Modified on 5/21/2015 (soh).

UNITED ST A TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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IN RE MCCRAY, RICHARDSON, SANTANA, WISE,:
AND SALAAM LITIGATION

OPINION & ORDER
03-CV-9685 (RLE)

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~~~~~~~~~~~~~~~~~!
RONALD L. ELLIS, United States Magistrate Judge:
I.

INTRODUCTION

On September 5, 2014, the law firm of Stevens, Hinds, & White, PC ("SHW") moved for
attorneys' fees and costs, related to the representation of Plaintiff Kharey Wise ("Wise"). (Doc.
No. 314.) On March 31, 2015, the Court issued an Order and Opinion ("March 31 Order")
granting attorneys' fees in the amount of $237,977.50 to SHW. (Doc. No. 355.) On April 2,
2015, SHW filed a Rule 60 Letter-Motion requesting a hearing. (Doc. No. 356.) On April 3,
2015, Fisher, Byrialsen & Kreizer, PLLC ("FBK") opposed SHW's Motion and requested that
the Court authorize disbursement of the attorneys' fees award from the escrow account held by
Day Pitney LLP. (Doc. No. 357.) On April 5, 2015, SHW replied and asked for interest on the
attorneys' fees award. (Doc. No. 359.) On April 20, 2015, FBK objected to SHW's request for
interest. (Doc. No. 362.)
For the reasons that follow, SHW's Rule 60 Motion and request for interest is DENIED.
Furthermore, IT IS HEREBY ORDERED THAT Day Pitney LLP disburse the funds from the
escrow account in accordance with the Court's March 31 Order: $237,977.50 to SHW and the
remaining amount to FBK.

II.

DISCUSSION

A. SHW's Rule 60 Motion
Rule 60 of the Federal Rules of Civil Procedure pertains to relief from a judgement or
order. Fed. R. Civ. P. 60. In SHW's Rule 60 Motion, however, SHW requests an evidentiary
hearing to supplement the record and reargues the merits of its previous Motion for Attorneys'
Fees. (Doc. No. 356.) More specifically, SHW contends that the Court erred in denying its
request for a hearing to elicit testimony from Wise and restates case law, which the Court has
already considered. (Id.) SH W's Motion relies on the following sections of Rule 60:

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The
court may correct a clerical mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of the record[ ... ]
(b) 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; [... ]
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(a), 60(b)(l), 60(b)(6).
The Court's March 31 Order and denial of a hearing was not based on a clerical mistake,
oversight, or omission, and therefore, Rule 60(a) does not apply. Furthermore, the Court sees no
mistake, inadvertence, surprise, or excusable neglect to justify relief from the March 31 Order;
thus, Rule 60(b)(1) does not apply. Finally, SHW's attempt to use Rule 60(b)(6) as a catch all to
substantiate relief from the March 31 Order also fails. Rule 60(b) "allows extraordinary judicial
relief, it is invoked only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793
F.2d 58, 61 (2d Cir. 1986). Rule 60(b)(6) is not a substitute for an appeal. Eutectic Corp. v.
Metco, Inc., 597 F .2d 32, 34 (2d Cir. 1979) (per curium); see also Wagner v. United Stares, 316

F.2d 871, 872 (2d Cir. 1963) (per curiam) ("The catch-all clause of Rule 60(b)(6), authorizing
the court to relieve a party from judgment for 'any other reason justifying relief,' cannot be read
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to encompass a claim of error for which appeal is the proper remedy ... "); Nemaizer, 793 F.2d at
61 (finding Rule 60(b) "may not be used as a substitute for a timely appeal"). There being no
exceptional circumstances present in this case, the Court finds no reason for relief from the
March 31 Order.

B. SHW's Request for Interest
In its original Motion for Attorneys' Fees, SHW did not include a request for interest.
(Doc. No. 314.) In its Rule 60 Motion, SHW makes no request for interest. (Doc. No. 356.)
SHW first mentions the issue of interest in its reply brief to the Rule 60 Motion. (Doc. No. 3 59.)
Issues, however, cannot be raised for the first time in a reply brief. Connecticut Bar Ass 'n v.

United States, 620 F .3d 81, 91 n. 13 (2d Cir. 2010) ("Issues raised for the first time in a reply
brief are generally deemed waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.
1998)."); Cioffi v. Averill Park Cent. Sch. Dist. Bd of Educ., 444 F.3d 158, 169 (2d Cir. 2006)
(citing Thomas v. Roach, 165 F.3d 137, 145-46 (2d Cir. 1999).). Because SHW never made the
request for interest in its original Motion for Attorneys' Fees or in its Rule 60 Motion, SHW's
request for interest is DENIED.

III. CONCLUSION
For the reasons stated above, the Court DENIES SHW's Rule 60 Motion. Furthermore,

IT IS HEREBY ORDERED THAT Day Pitney LLP disburse the funds from the escrow
account in accordance with the Court's March 31 Order.

SO ORDERED this 21st day of May 2015
New York, New York

The Honorable Ronald L. Ellis
United States Magistrate Judge
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