House v. Village of Avon, New York et al

Filing 13

ORDER denying 12 Motion to Vacate. Signed by Hon. Michael A. Telesca on 9/22/2016. A copy of this Order was sent via U.S. Mail to the pro se plaintiff on this date by Chambers staff. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT HOUSE,
Plaintiff,
6:11-cv-06395(MAT)
DECISION AND ORDER

-vVILLAGE OF AVON, et al.,
Defendants.

I.

Background
Pro se plaintiff Robert House (“Plaintiff”) instituted this

action

alleging

that

the

defendants,

which

include

municipal

entities and officials, the United States of America, and several
private individuals, all conspired to violate his rights and
engaged in patterns of racketeering activity. On February 6, 2012,
this Court dismissed the complaint with prejudice on initial
screening pursuant to 28 U.S.C. § 1915(e)(2)(B). Judgment was
entered in the defendants’ favor on February 6, 2012.
Plaintiff filed a notice appeal in the Second Circuit, but
never perfected his appeal. Accordingly, the Second Circuit deemed
the case in default and dismissed the notice of appeal effective
August 20, 2012.
On February 3, 2016, Plaintiff filed an uncaptioned document
titled, “Motion to vacate judgment” (Dkt #12). Plaintiff does not
cite any legal authority beyond stating that his case “was not
properly dismissed pursuant to the rules of civil procedure title
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28 USC.” (Id.). For the reasons discussed below, the motion is
denied with prejudice.
II.

Discussion
Because Plaintiff is proceeding pro se, the Court will deem

this application to be brought pursuant to Rule 60(b)(1) through
(6) of the Federal Rules of Civil Procedure. As an initial matter,
Rule 60(b) is “not . . . a substitute for an appeal from an
erroneous judgment.” In re Teligent, Inc., 306 B.R. 752, 761
(Bankr.

S.D.N.Y.

2004),

aff’d,

326

B.R.

219

(S.D.N.Y.

2005)

(collecting cases).
A motion under Rule 60(b)(1), (2), or (3) “shall be made
within a reasonable time, and . . . not more than one year after
the judgment . . . was entered.” FED. R. CIV. P. 60(b). Plaintiff’s
motion was not filed until nearly four years after judgment was
entered. Therefore, it is untimely under Rule 60(b)(1), (2), and
(3).
Subsection (4) allows vacatur when the judgment is void due to
the court lacking jurisdiction. See, e.g., Cent. Vermont Pub. Serv.
Corp. v. Herbert, 341 F.3d 186, 190 (2d Cir. 2003) (“[A] judgment
may be declared void for want or jurisdiction only when the court
‘plainly usurped jurisdiction,’ or, put somewhat differently, when
‘there is a total want of jurisdiction and no arguable basis on
which it could have rested a finding that it had jurisdiction.’”)
(quotation omitted). Plaintiff has not alleged, and there is no

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basis

for

finding,

that

this

Court

lacked

subject

matter

jurisdiction or personal jurisdiction in this case.
Subsection (5) is irrelevant here because Plaintiff has not
alleged

that

“the

judgment

has

been

satisfied,

released,

or

discharged . . . .” FED. R. CIV. P. 60(b)(5).
Subsection (6), Rule 60(b)’s “catch-all” provision does not
have a one year limit, but instead requires that the motion must be
made within a “reasonable time.” FED. R. CIV. P. 60(b)(6). To
determine the timeliness of a motion brought pursuant to Rule
60(b)(6), the Court reviews the particular circumstances of each
case and “balance[s] the interest in finality with the reasons for
delay.” Kotlicky v. United States Fidelity & Guar. Co., 817 F.2d 6,
9 (2d Cir. 1987). The Second Circuit has emphasized repeatedly that
“a Rule 60(b)(6) motion requires ‘extraordinary circumstances,’
which ‘typically do not exist where the applicant fails to move for
relief promptly.’” Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d
180, 190 (2d Cir. 2006) (quoting 12 Moore’s Federal Practice §
60.48[3][c]; citation omitted). Plaintiff, who waited nearly four
years before moving to vacate the judgment, clearly “fail[ed] to
move for relief promptly.” Id.; see also Kellogg v. Strack, 269
F.3d 100, 104 (2d Cir. 2001) (“Kellogg’s motion [to vacate] was
made twenty-six months after the entry of the final judgment, a
period of time which constitutes a patently unreasonable delay
absent mitigating circumstances.”). Moreover, Plaintiff has failed

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to allege or demonstrate extraordinary circumstances to justify
reopening the judgment in this case. It appears that Plaintiff is
attempting to use Rule 60(b) to escape the consequences of his
failure to perfect his appeal with the Second Circuit. However,
“[t]he limitation on the use of Rule 60 motions as a substitute for
appeal is especially true of motions under Rule 60(b)(6).” Eutectic
Corp. v. Metco, Inc., 597 F.2d 32, 34 (2d Cir. 1979).
III. Conclusion
For the foregoing reasons, Plaintiff has not demonstrated that
he is entitled to have the judgment dismissing his action vacated,
under any subsections of Rule 60(b), or any other principle of
equity or rule of law. Accordingly, Plaintiff’s “Motion to vacate
judgment” (Dkt #12) is denied with prejudice.
SO ORDERED.
S/ Michael A. Telesca
__________________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

September 22, 2016
Rochester, New York.

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