Williams v. Schriro et al
REPORT AND RECOMMENDATION. For the forgoing reasons, I recommend that the plaintiff's motion for relief under Rule 60(b) of the Federal Rules of Civil Procedure be denied. Objections to R&R due by 10/31/2016. (Signed by Magistrate Judge James C. Francis on 10/13/2016) Copies Mailed By Chambers. (rjm).
(Letter of Dwain Williams filed May 26, 2016).
15, 2016, the court received another letter from the plaintiff
requesting relief from the court’s dismissal, citing Rule 60(b) of
the Federal Rules of Civil Procedure.
(Letter of Dwain Williams
dated July 6, 2016 (“July 6 Letter”), at 1-2,5).
In his letter,
the plaintiff claimed that his nearly three year delay was due to
his being hospitalized with endocarditis after his release from
(July 6 Letter at 6).
Along with the letter, the
plaintiff included a copy of a hospital discharge summary dated
(“Discharge Summary”), attached to July 6 Letter).
On August 4, 2016, I ordered the defendants to respond to the
motion to vacate the judgment.
The motion is now fully submitted.
Under Rule 60(b), the court may relieve a party from a final
judgment, order, or proceeding for the following reasons:
mistake, inadvertence, surprise, or excusable neglect;
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
the judgment is void;
(5) 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
any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
However, a motion under Rule 60(b) must be
made within a reasonable time, and for clauses (1), (2), and (3),
no more than a year after the entry of the judgment or order being
Fed. R. Civ. P. 60(c)(1).
An order vacating a final judgment is a “mechanism for
‘extraordinary judicial relief’ invoked only if the moving party
demonstrates ‘exceptional circumstances.’”
Ruotolo v. City of New
York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Paddington Partners
v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1994)).
pursuant to Rule 60(b) are within the sound discretion of the trial
Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir.
In the July 6 letter, the plaintiff characterizes his lack of
a response to the court’s original order as “excusable neglect.”
(July 6 Letter at 5).
In defending his conduct, the plaintiff
claims that he was unable to respond to meet the court’s deadline
because of his hospitalization.
(July 6 Letter at 6-7).
However, if I were to accept the plaintiff’s characterization
of his failure to respond to the order to amend as “excusable
neglect,” Rule 60(b)(1) would offer no remedy.
Motions under Rule
60(b)(1) must be made “no more than a year after the entry of the
judgment or order” from which the moving party is seeking relief.
Fed. R. Civ. P. 60(c)(1).
Since the original order was entered in
December 2013, relief under Rule 60(b)(1) is no longer available.
While the plaintiff assets no claims of new evidence or fraud,
relief under either Rule 60(b)(2) or Rule 60(b)(3) would be
similarly unavailable in light of the one year time limit of Rule
A judgment is void under Rule 60(b)(4) “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
Grace v. Bank Leumi Trust Co. of New York, 443 F.3d 180,
193 (2d Cir. 2006) (quoting Texlon Corp. Manufacturers v. Hanover
Commercial Corp., 596 F.2d 1092, 1099 (2d Cir. 1979)).
here had both subject matter jurisdiction and personal jurisdiction
plaintiff’s due process rights were violated.
While Mr. Williams never received a copy of the court’s
judgment, he was well aware that the action was ongoing and failed
to update the court as to his current address.
It is well
established that all pro se plaintiffs have an obligation to inform
the court and defendants of any change of address.
Sposato, No. 15 CV 6874, 2016 WL 3647869, at *1-2 (E.D.N.Y. July 1,
Therefore, it was the failure of the plaintiff to pursue
his case diligently, rather than any violation of his due process
rights, that led to his not being informed of the court’s final
Therefore, the plaintiff’s may not attain relief under Rule
Since the court’s judgment has not been “satisfied, released,
or discharged,” Rule 60(b)(5) is not a ground for relief.
Relief under Rule 60(b)(6) is not available “unless the
asserted grounds for relief are not recognized in clauses (1)-(5).”
In re Emergency Beacon Corp., 666 F.2d 754, 758 (2d Cir. 1981).
Therefore, if I accept the plaintiff’s characterization of his
mistake as “excusable neglect,” which falls under Rule 60(b)(1),
then relief under Rule 60(b)(6) would be barred.
However, since the submissions of a pro se litigant “must be
arguments that they suggest,” I will overlook the plaintiff’s
Triestman v. Federal Bureau of Prison, 470 F.3d 471, 474 (2d Cir.
Under this subsection of the Rule, relief may be granted for
“any other reason justifying relief from the operation of the
Fed. R. Civ. P. 60(b)(6).
However, this clause is
properly invoked only when there are “extraordinary circumstances”
In re Emergency Beacon Corp., 666 F.2d at 758.
“extraordinary circumstances” that would justify relief under Rule
The only evidence he offers is a hospital discharge
diagnosis from April 2014 as part of the patient’s history.
(Discharge Summary at 11). However, that diagnosis would have come
at least two months after the deadline to amend the complaint had
passed. The plaintiff offers no reason why he could not respond or
follow up with his case during the period he had to submit a new
For the forgoing reasons, I recommend that the plaintiff’s
motion for relief under Rule 60(b) of the Federal Rules of Civil
Procedure be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules
72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the
parties shall have fourteen (14) days from this date to file
objections shall be filed with the Clerk of the Court, with extra
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?