Harper v. New York City Transit Authority et al

Filing 31

MEMORANDUM OPINION AND ORDER. Harper's motion to reopen is DENIED. The Clerk of Court is respectfully directed to terminate the motion pending at Doc. No. 25. SO ORDERED. (Signed by Judge Richard J. Sullivan, Sitting by Designation on 1/20/20) (yv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHAD HARPER,
Plaintiff,

No. 17-cv-6979 (RJS)

-vNEW YORK CITY TRANSIT AUTHORITY,
WILLIAM CREEL, JOHN HOBAN, and
SHAWN BLAKELY,

MEMORANDUM OPINION
AND ORDER

Defendants.
RICHARD J. SULLIVAN, Circuit Judge:
Plaintiff Chad Harper commenced this action in 2017, alleging that Defendants New York
City Transit Authority, William Creel, John Hoban, and Shawn Blakely discriminated against him
on the basis of his disability in violation of federal, state, and local law. (Doc. No. 2.) Now before
the Court is Harper

dgment pursuant to Federal Rule of Civil Procedure

60. (Doc. No. 25.) In essence, Harper seeks to vacate

order dismissing

the case for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b), on the ground
that he was misled and misinformed by his attorney. For the reasons set forth below, Harper
motion to reopen is DENIED.
I. Background
Harper filed his complaint in this action on September 14, 2017. (Doc. No. 2.) Defendants
filed their answer on January 5, 2018. (Doc. No. 16.) On January 10, 2018, the Court ordered the
parties to appear for an initial conference on February 16, 2018 and to submit a joint status letter
and proposed case management plan no later than February 8, 2018. (Doc. No. 18.) The parties
failed to submit their joint status letter by the February 8, 2018 deadline. On February 9, 2018,

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Defendants

filed a letter alerting the Court that

had not responded to

their efforts to contact him regarding the missed deadline. (Doc. No. 20.) The Court then issued
an order on February 14, 2018 directing Harper to show cause as to why he should not be
sanctioned for failing to comply with the January 10, 2018 order. (Doc. No. 21.) Harper failed to

$500 for failure to comply with the January 10, 2018 and February 14, 2018 orders. (Doc. No.
22.) The Court also made clear that the case would be dismissed for failure to prosecute unless
Harper showed good cause for his failure to respond to both orders by March 7, 2018. (Id.) Harper
did not do so, and on March 8, 2018, his case was dismissed for failure to prosecute pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure. (Doc. No. 23.)
On August 28, 2020

nearly two and a half years later

Harper submitted a motion to

reopen his case (Doc. No. 25), arguing that he is entitled to relief from the March 8, 2018 order
under Federal Rule of Civil Procedure 60 based on the misconduct of his initial counsel, David B.
Calender

40). Harper alleges that, after discussing his case with

Calender in February 2018, he did not hear from Calender for approximately one year. (Harper
Aff. ¶¶ 12 13.) Harper states that he attempted to reach Calender by phone, text, and email in
early 2019, but that he received no response until the middle of the year, at which point he arranged
a meeting with Calender, who then failed to attend. (Id. ¶¶ 12 18.) After that, Harper did not hear
from Calender again until January 7, 2020, when Calender called to inform Harper that he had
case. (Id. ¶ 21.) According to Harper, Calender agreed to another meeting
on January 11, 2020 but once again failed to appear. (Id. ¶ 22.) Harper states that he had no
inaction in this case (id.

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details of [his] case when [he] went to the court and pulled [his] file, learning that the case had
been in fact dismissed (id. ¶ 23).
in handling his case amount to
id. ¶ 40), and therefore provide grounds for relief
under Rule 60(b)(3), (b)(6), and (d)(3) (Doc. No. 25-1 (

6). Defendants argue

to reopen should be denied because he is not entitled to relief under any
provision of Rule 60, and because his motion was untimely filed.
1.)1
II. Discussion
Rule 60(b) of the Federal Rules of Civil Procedure provides, in relevant part, that courts
may relieve a party or its legal representative from a final judgment, order, or proceeding for a
variety of reasons, including: (3) fraud . . . , misrepresentation, or misconduct by an opposing
party; . . . or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). A motion under Rule
60(b)(3) must be brought within one year of the judgment or order from which the moving party
seeks relief. Fed. R. Civ. P. 60(c). A motion under Rule 60(b)(6) is not subject to a specific time
limit, but still

Id.

60(b)(6) motion is timely, [courts] must scrutinize the particular circumstances of the case, and
PRC Harris, Inc. v. Boeing Co., 700
F.2d 894, 897 (2d Cir. 1983).

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initial affidavit but
incorporates by reference Ca
September 11, 2020
state attorney grievance proceeding. (Id. ¶ 2; Doc. No. 30-1.) Although Harper does not attempt to explain the
procedural mechanism through which he submits
approximately threemonth delay in filing it, the Court has nevertheless considered it in resolving the present motion.

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Even if a Rule 60(b)(6) motion is brought within a reasonable time, relief under Rule
60(b)(6) may be gran
the judgment may work an extreme and undue hardship, and when the asserted grounds for relief
are not recognized in clauses (1)

Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir.

1986) (internal citations omitted). A

ordinarily does not justify relief under

the Rule. See id. (collecting cases).
contemplated by Rule 60(b)(6) in cases of constructive disappearance or a similar inability to

605 (2d Cir. 2002) (summary order) (collecting cases).

[e]ven where an attorney has

inexcusably and completely abandoned his responsibilities to his client, . . . a party must still
Aalmuhammed v.
Kesten, No. 98-cv-171 (DLC), 2003 WL 118512, at *5 (S.D.N.Y. Jan. 14, 2003) (quoting
Dominguez v. United States, 583 F.2d 615, 618 (2d Cir. 1978) (per curiam)).
Rule 60(d) provides

er to . . . set aside a judgment
However, [a]
Harris v. City of New York, No. 96-cv-7565 (KNF),

2012 WL 5464576, at *6 (S.D.N.Y. Nov. 9, 2012) (quoting Transaero, Inc. v. La Fuerza Area
Boliviana, 24 F.3d 457, 460 (2d Cir. 1994)).
on an adverse party is limited to fraud which seriously affects the integrity of the normal process
Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988) (internal quotation
marks omitted).
Harper is not entitled to relief from the

final judgment under any of the provisions

of Rule 60 that he asserts. First, Harper cannot rely on Rule 60(b)(3) because this provision applies

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only
not fraud or misconduct by

opposing party
own attorney. Moreover, any reliance on Rule 60(b)(3) is barred

by the one-year limitations period for motions brought under Rule 60(b)(1) (3). See Fed. R. Civ.
P. 60(c). The Court dismissed
bring his motion to reopen until August 28, 2020 (Doc. No. 25).

Nemaizer, 793 F.2d at 63. Here,

and 60(b)(6) claims. (Harper Aff. ¶ 40.) Of course, since
attorney does not fall within Rule 60(b)(3), it might
category.
Id.) These allegations
the
correspondence and calls of

See Doc. Nos. 20 23.)

within the ambit of Rule 60(b)(6).

This kind of

the fact that Harper

waited a year without contacting his attorney regarding the status of his case demonstrates that he
igent efforts
See Dominguez, 583 F.2d at 618
bound by the inexcusable conduct of her counsel, since there is no particularized showing of
exceptional circumstances explaining his gross negligence and no indication of diligent efforts by

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Moreover, while Rule 60(b)(6) motions are not subject to a one-year limitations period, the
twenty-nine-month
motion to reopen

, Fed. R. Civ. P.

60(c). See, e.g., Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001) (per curiam) (holding that the
-six-month delay in filing a Rule 60(b) motion was
Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995) (per curiam) (holding that a Rule 60(b)
motion brought eighteen months after the judgment was not brought within a reasonable time ).
Finally
within the meaning of Rule 60(d). Fed. R. Civ. P. 60(d)(3). Indeed,
upon the court are conclusory at best, see
¶ 27 (same), and Harper submits no evidence
to

ed] to, defile the

court itself, Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1325 (2d Cir. 1995) (internal
quotation marks omitted). Thus,
he is entitled to relief under any provision
of Rule 60.2

2

While it is possible that Harper may be able to establish a separate legal malpractice claim against Calender, that is
beyond the scope of this case. The Court notes, however, that the statute of limitations for bringing such a malpractice
claim under New York law is three years from the date on which the malpractice was committed. See, e.g., Noskov v.
Roth, No. 19-cv-7431 (RA), 2020 WL 4041125, at *4 (S.D.N.Y. July 17, 2020) (citing N.Y. C.P.L.R. § 214(6)).

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III. Conclusion
For the reasons set forth above,

The Clerk of Court

is respectfully directed to terminate the motion pending at Doc. No. 25.
SO ORDERED.
Dated:

January 20, 2020
New York, New York
_______________________________
RICHARD J. SULLIVAN
UNITED STATES CIRCUIT JUDGE
Sitting by Designation

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