Hall v. DOC Department of Correction OBCC-CPSU et al
Filing
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MEMORANDUM OPINION AND ORDER. For the foregoing reasons, Plaintiff's request to reopen his case is DENIED. This Court certifies pursuant to Title 28, United States Code, Section 1915(a)(3) that any appeal from this Order would not be taken in good faith, and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Jesse M. Furman on 6/5/2013) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JERELL HALL, also known as Jerell Shaw,
:
:
Plaintiff,
:
:
-v:
:
DOC DEPARTMENT OF CORRECTION
:
:
OBCC-CPSU, et al.,
:
:
Defendants.
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6/5/2013
11 Civ. 406 (JMF)
MEMORANDUM OPINION
AND ORDER
JESSE M. FURMAN, United States District Judge:
The Court is in receipt of the attached letter, dated May 26, 2013, which Plaintiff Jerell
Hall sent to Magistrate Judge James L. Cott, requesting that the Court reopen his case, which
was dismissed on May 1, 2012, for failure to prosecute. Plainiff’s request is DENIED.
Plaintiff filed his Complaint in this action on January 14, 2011, and the Clerk of Court
issued summons as to all Defendants on February 10, 2011. By Order entered June 21, 2011,
Magistrate Judge Cott, to whom this case was referred for general pretrial supervision and
dispositive motions, enlarged Plaintiff’s time to serve the Defendants to July 19, 2011, and
warned that failure to do so could lead to dismissal of the case. (Docket No. 12). On September
14, 2011, Magistrate Judge Cott directed Hall to show good cause for the failure to serve
Defendants, and having received no response from Hall, Magistrate Judge Cott issued a Report
and Recommendation, recommending dismissal of the case pursuant to Rule 4(m) of the Federal
Rules of Civil Procedure. (Docket No. 14). By letter dated November 27, 2011 — well after the
time to file objections to the Report and Recommendation — Hall requested an extension of time
to serve Defendants, which Magistrate Judge Cott granted, cautioning Hall that this would be his
final opportunity to serve Defendants. (Docket Nos. 15-16). Having received no response from
Hall within Hall’s allotted time to serve, Magistrate Judge Cott issued another Report and
Recommendation on January 12, 2012, recommending that the case be dismissed without
prejudice. (Docket No. 17). More than 100 days after the Report and Recommendation was
filed (during which time no objections were filed and no request for an extension of time was
made), the Court reviewed the Report and Recommendation, adopted it in its entirety, and
dismissed the case for failure to prosecute in an order dated May 1, 2012. (Docket No. 19).
In his May 26, 2013 letter, Plaintiff now seeks to re-open the case, claiming that he has
not been receiving information on this case for the past year and a half, as he is still incarcerated,
has been transferred “from facility to facility,” and has not been receiving his mail. Plaintiff
offers no legal authority in support of his request, but reading his pro se submission liberally and
interpreting it to raise the strongest argument it suggests, see Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006), the Court construes Plaintiff’s letter as a motion for
reconsideration under Federal Rule of Civil Procedure 60(b).
Rule 60(b), which permits a Court to vacate a final judgment, is a “mechanism for
‘extraordinary judicial relief invoked only if the moving party demonstrates exceptional
circumstances.” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quotation marks
omitted). Motions pursuant to Rule 60(b) are within the sound discretion of the trial court. See
Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009). Rule 60(b) lists five specific
grounds for relief, as well as a sixth catchall category. Considering Plaintiff’s pro se status, the
Court considers each ground. See Thompson v. City of N.Y., No. 04-CV-2355 (FB), 2010 WL
1005866, at *1 (E.D.N.Y. Mar. 16, 2010).
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Motions under Rules 60(b)(1) (“mistake, inadvertence, surprise, or excusable neglect”),
60(b)(2) (“newly discovered evidence”), and 60(b)(3) ( “fraud . . . misrepresentation, or
misconduct”) must be made “no more than a year after the entry of the judgment or order” that is
sought to be reopened. See Fed. R. Civ. P. 60(c)(1). Because more than a year has passed since
the Order dismissing Plaintiff’s case was entered, these grounds for relief are unavailable.
Under Rule 60(b)(4), a case may be reopened if the judgment that closed it is void. “A
judgment is void . . . only if the court that rendered it lacked jurisdiction of the subject matter, or
of the parties, or if it acted in a manner inconsistent with due process of law.” Grace v. Bank
Leumi Trust Co., 443 F.3d 180, 193 (2d Cir. 2006) (internal citation omitted). Here, the Court
had subject matter jurisdiction, and there is no violation of Plaintiff’s due process rights. Even if
Plaintiff did not receive the numerous orders issued in this case warning him that his failure to
serve Defendants would lead to dismissal of his case, he was aware that this action was ongoing
and had an obligation to update the Court in the event that his address changed. See Alomar v.
Recard, No. 07 CV 5654 (CS), 2010 WL 451047, at *2 (S.D.N.Y. Feb. 9, 2010) (“The duty to
inform the Court and defendants of any change of address is ‘an obligation that rests with all pro
se plaintiffs.’” (quoting Handlin v. Garvey, No. 91 Civ. 6777 (AGS), 1996 WL 673823, at *5
(S.D.N.Y. Nov. 20, 1996))); see also Love v. Amerigroup Corp., No. 09-CV-4233 (RER), 2010
WL 2695636, at *4 (E.D.N.Y. June 2, 2010) (explaining that a court “may deny relief to a pro se
litigant who has . . . missed an important deadline as a result of [his] failure” to update his
address). As Plaintiff neglected his “duty to process his case diligently,” he is not entitled to
relief under Rule 60(b)(4). See Thompson, 2010 WL 1005866, at *2 (citing Lyell Theatre Corp.
v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (affirming dismissal for failure to prosecute after
ten years of infrequent and sporadic progress)).
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Rule 60(b)(5) permits a court to relieve a party from a final judgment where “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.” Fed. R. Civ. P.
60(b)(5). As none of these conditions is met here, Plaintiff’s request for relief pursuant to Rule
60(b)(5) is likewise denied. Finally, the catchall provision of Rule 60(b)(6) permits a court to
vacate a judgment “for any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Such
relief must be sought within a “reasonable time,” Fed. R. Civ. P. 60(c)(1), and can be granted
“only in extraordinary circumstances.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (internal
citation omitted). Here Plaintiff waited more than a year to request that the Court reopen his case
and has offered no sufficient reason to justify the “extraordinary” relief of Rule 60(b)(6).
Moreover, because the dismissal of Plaintiff’s case was without prejudice, Plaintiff is free to file
a new lawsuit to pursue any timely claims he asserted in this action.
For the foregoing reasons, Plaintiff’s request to reopen his case is DENIED.
This Court certifies pursuant to Title 28, United States Code, Section 1915(a)(3) that any
appeal from this Order would not be taken in good faith, and in forma pauperis status is thus
denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: June 5, 2013
New York, New York
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