Kenning v. Colvin

Filing 24

DECISION AND ORDER granting 21 Motion for Reconsideration; and it is ordered that the Decision and Order (Docket No. 18) granting Defendants Motion for Reconsideration is vacated, and the subsequent Judgment dated December 5, 2017 (Docket No. 19) is vacated; and it is further ordered that Defendants Motion for Reconsideration (Docket No. 17) is restored to pending status on the Courts docket; and it is further ordered that Plaintiffs opposition papers are due April 19, 2018; Defendants reply is due April 26, 2018; and the motion will be submitted without oral argument on May 4, 2018. Signed by Hon. Michael A. Telesca on 4/5/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEBEDIAH CHARLES KENNING,
Plaintiff,
-vs-

No. 6:16-cv-06778-MAT
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
This

is

an

(“Plaintiff”),

appeal

through

brought

counsel,

by
of

Jebediah
the

Charles

decision

by

Kenning
Nancy

A.

Berryhill, Acting Commissioner of Social Security (“Defendant”),
denying his applications for benefits pursuant to Titles II and XVI
of the Social Security Act (“the Act”).
II.

Background
On November 20, 2017, this Court issued a Decision and Order

(Docket No. 12) reversing Defendant’s decision denying disability
benefits

to

Plaintiff.

Finding

that

Defendant’s

decision

was

legally erroneous and unsupported by substantial evidence, the
Court remanded the case for further administrative proceedings.
Judgment was entered in Plaintiff’s favor on November 21, 2017.
On

November

29,

2017,

Defendant

filed

Reconsideration (Docket No. 17) pursuant to

a

Motion

for

Rule 59(e) of the

Federal Rules of Civil Procedure (“Rule 59(e)”), asking the Court
to reconsider its decision on the grounds that it contained two
errors of law, and arguing that the decision was supported by
substantial evidence.

After reviewing Defendant’s Memorandum of Law (Docket No. 171), the cases cited therein, and the relevant portions of the
transcript, the Court found that reconsideration should be granted.
The Court therefore vacated its previous Decision and Order (Docket
No. 12), and affirmed Defendant’s decision denying benefits on the
basis that it was not legally erroneous and was supported by
substantial evidence. Accordingly, the Court vacated the scheduling
order issued on November 30, 2017, and granted the Defendant’s
Motion for Reconsideration.
On December 15, 2017, Plaintiff filed a Notice of Appeal
(Docket No. 20). Plaintiff indicates that the Second Circuit Court
of Appeals referred this matter for CAMP mediation; an initial
session was held on January 30, 2018. At that time, the parties
discussed the possibility of utilizing Federal Rule of Civil
Procedure

62.1

(“Rule

62.1”)

and

Federal

Rule

of

Appellate

Procedure 12.1 to determine if appellate intervention could be
avoided.
As a consequence of that mediation session, on February 8,
2018, Plaintiff filed a Motion Pursuant to Rule 62.1(a) for an
Indicative Ruling on a Prospective Rule 60(b) Motion (Docket
No. 21), requesting that this Court (1) vacate its order on
Defendant’s Motion for Reconsideration as well as the Judgment
resulting from that order; (2) permit full briefing on Defendant’s
Motion for Reconsideration in accordance with the Western District
of New York’s Local Rules of Civil Procedure and this Chambers’
rules; and (3) issue a new decision on Defendant’s Motion for
-2-

Reconsideration.

Plaintiff’s

attorney,

in

his

supporting

Affirmation dated February 8, 2018 (Docket No. 21-1), indicates
that he contacted counsel for Defendant, who does not oppose the
Rule 62.1(a) Motion. On March 6, 2018, Plaintiff wrote a letter
(Docket No. 23) to the Court indicating that he would not be filing
a reply, since Defendant had not opposed the Rule 62.1(a) motion.
III. Discussion
Rule 62.1(a) provides that “[i]f a timely motion is made for
relief that the court lacks authority to grant because of an appeal
that has been docketed and is pending, the court may: (1) defer
considering the motion; (2) deny the motion; or (3) state either
that it would grant the motion if the court of appeals remands for
that purpose or that the motion raises a substantial issue.” FED.
R. CIV. P. 62.1(a).
By its very terms, “the rule only applies when a ‘timely
motion’ (typically a Rule 60(b) motion) has been made for relief
that the court lacks jurisdiction to grant, because of the pendency
of an appeal.” Medgraph, Inc. v. Medtronic, Inc., 310 F.R.D. 208,
210 (W.D.N.Y. 2015). In other words, “[a]bsent an underlying,
predicate motion, there is no basis for relief under Rule 62.1.”
Id. (citing Advisory Committee Notes to Rule 62.1 (“This new rule
adopts for any motion that the district court cannot grant because
of a pending appeal the practice that most courts follow when a
party makes a Rule 60(b) motion to vacate a judgment that is
pending on appeal”); 12 James W. Moore et al., MOORE’S FEDERAL PRACTICE
§ 62.1.10[2] (“The rules governing indicative-ruling procedure . .
-3-

. apply only if a pending appeal bars the district court from
granting the relief sought in a postjudgment motion”)).
Here, Plaintiff has not filed a separate Rule 60(b) motion,
and in fact has denominated its pending motion as a “Motion
Pursuant to Rule 62.1(a) for an Indicative Ruling on a Prospective
Rule

60(b)

Motion”

Procedurally

(See

speaking,

Docket
however,

No.

21

there

(emphases
is

no

supplied)).

basis

for

a

free-standing Rule 62.1 motion, asking the district court to
provide an advisory or indicative ruling informing the circuit
court of appeals what it would do if the case were to be remanded.
Medgraph, Inc., 310 F.R.D. at 210 (where plaintiff had not filed
any motion for relief, apart from its motion under Rule 62.1,
motion was subject to denial on that ground alone) (citations
omitted).
However, in his Memorandum of Law, Plaintiff indicates he is
seeking “relief under Rule 62.1(a) in the form of a motion under
Federal Rule of Civil Procedure 60(b).” (Plaintiff’s Memorandum of
Law (Docket No. 21-2) at 2 (citation omitted)). Plaintiff cites
subsections (1) and (6) of Rule 60(b) which, respectively, permit
a court to relieve a party or its legal representative from a final
judgment,

order

or

proceeding

on

the

basis

of

“mistake,

indadvertance, surprise, or excusable neglect” or “any other reason
that justifies relief.” FED. R. CIV. P. 60(b)(1), (6). Plaintiff then
sets forth argument as to why he is entitled to relief under Rule
60(b)(1) and (6). In the interest of expediency, and in light of
the fact that Defendant does not oppose the relief sought by
-4-

Plaintiff, the Court will deem Plaintiff’s pending application
(Docket No. 21) to be a Combined Motion Pursuant to Rule 60(b) and
Rule 62.1(a).
Turning

to

Plaintiff’s

arguments

in

favor

of

granting

Rule 60(b) relief, he chiefly asserts that the District’s local
rules were violated when the Court vacated its scheduling order and
issued a decision on Defendant’s Motion for Reconsideration prior
to the due-date set in the scheduling order for Plaintiff to file
his opposition papers. See Western District of New York Local Rule
(“L.R.”) 7(b)(2)(B) (“If the Court does not set deadlines by order,
the following schedules shall apply [to] . . . . [all motions other
than summary judgment motions][:] The opposing party shall have
fourteen (14) days after service of the motion to file and serve
responding papers, and the moving party shall have seven (7) days
after service of the responding papers to file and serve reply
papers.”). Plaintiff notes that pursuant to L.R. 7(b)(2)(B), in the
absence of a scheduling order, he was entitled to respond no later
than 14 days after November 29, 2017, the date on which Defendant’s
motion for reconsideration was filed. Since the Court vacated the
scheduling order and issued a ruling on December 4, 2017, Plaintiff
was not afforded the full 14 days allowed under L.R. 7(b)(2)(B).
The Court is unconvinced that this constitutes the “mistake,
indadvertance, surprise, or excusable neglect” contemplated by
subsection (1) of Rule 60(b). However, with regard the propriety of
invoking subsection (6), the Second Circuit’s precedents make clear
that

a

motion

under

Rule

60(b)
-5-

“is

addressed

to

the

sound

discretion of the trial court.” Matter of Emergency Beacon Corp.,
666 F.2d 754, 760 (2d Cir. 1981). And, the Second Circuit also has
clarified

that

“this

discretion

is

especially

broad

under

subdivision (6) [of Rule 60(b)], because relief under it is to be
granted when appropriate to accomplish justice.” Id. (internal
quotation marks and citations omitted); see also United States v.
Karahalias, 205 F.2d 331, 333 (2d Cir. 1953) (“In short—to put it
quite baldly—we read . . . subsection [(6) of Rule 60(b)] as giving
the court a discretionary dispensing power over the limitation
imposed by the Rule itself on subsections (1), (2) and (3)[.]”).
Balancing the equities, and keeping in mind that the Second Circuit
suggested to the parties a combined Rule 60(b)/Rule 62.1(a) motion
(which is unopposed by Defendant) in order to avoid the necessity
of appellate proceedings, the Court finds that this is a proper
case to rely on Rule 60(b)(6) to accomplish justice.
Accordingly, the Court grants the relief sought in Plaintiff’s
pending motion, namely, an opportunity to respond to Defendant’s
Motion for Reconsideration.
IV.

Conclusion
As

discussed

above,

upon

consideration

of

Plaintiff’s

Memorandum of Law (Docket No. 21-2), the Court grants Plaintiff’s
unopposed Combined Motion Pursuant to Rule 60(b) and Rule 62.1(a).
Accordingly, it is hereby
ORDERED that the Decision and Order (Docket No. 18) granting
Defendant’s

Motion

for

Reconsideration

-6-

is

vacated,

and

the

subsequent Judgment dated December 5, 2017 (Docket No. 19) is
vacated; and it is further
ORDERED that Defendant’s Motion for Reconsideration (Docket
No. 17) is restored to “pending” status on the Court’s docket; and
it is further
ORDERED that Plaintiff’s opposition papers are due April 19,
2018; Defendant’s reply is due April 26, 2018; and the motion will
be submitted without oral argument on May 4, 2018.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca

HON. MICHAEL A. TELESCA
United States District Judge
Dated:

April 5, 2018
Rochester, New York.

-7-