Ciprian v. City of Providence et al

Filing 33

MEMORANDUM AND ORDER: DENYING/DISMISSING 28 MOTION for Relief from Judgment in accordance with U.S. Rules of Civil Procedure Rule No. 60(b((3); and, DENYING/DISMISSING as moot 30 MOTION to Assign to Calendar re 28 MOTION for Relief from Judgment. So Ordered by Judge Mary M. Lisi on 4/21/2015. (A copy of the attached Order was forwarded to pro se Plaintiff via first-class mail on 4/21/2015.) (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

FERMIN CIPRIAN,
v.

C.A. No. 12-651-ML

CITY OF PROVIDENCE;
PROVIDENCE SCHOOL DEPARTMENT;
JAMES J. LOMBARDI in his capacity as Treasurer;
ROBERT WISE in his official and individual capacity;
MAILA TOURAY in her official and individual capacity;
PHILIP GOULD in his official and individual capacity;
GRACE GONZALEZ in her official and individual capacity;
MAGALY SANCHEZ in her official and individual capacity;
RONNIE YOUNG in his official and individual capacity;
BRIAN LALLI in his official and individual capacity;
MELISSA MALONE in her official and individual capacity;
KATHERINE MCKENZIE in her official and individual capacity;
JOHN DOE in his official and individual capacity.
MEMORANDUM AND ORDER
On September 17, 2010, Fermin Ciprian (“Ciprian”) brought
claims of employment discrimination and retaliatory action against
the

City

of

Providence

(the

“City”),

the

Providence

School

Department, and various members of the Providence School Board
(together, the “Defendants”) pursuant to Title VII of the Civil
Rights Act of 1964 and the Rhode Island Civil Rights Act (“RICRA”).
On April 1, 2013, Ciprian’s claim under RICRA was dismissed
because he failed to comply with R.I. Gen. Laws § 45-15-5, which
requires notice to the City of the claim in order to afford the
City a reasonable opportunity to settle the claim. Memorandum and

1

Order, Dkt. No. 8.

Prior to dismissing the RICRA claim, the Court

held a hearing in which Ciprian’s attorney conceded, in Ciprian’s
presence, that Ciprian had not given notice to the City. Id. at 15,
see also Docket Entry 03/18/13.
On February 20, 2014, the City filed a motion for summary
judgment on Ciprian’s remaining claims under Title VII of the Civil
Rights Act, Dkt. Nos. 18, 19. On the same date, the individual
Defendants also filed a motion to dismiss all claims against them
for insufficient service of process, Dkt. No. 20.
On March 10, 2014, Ciprian sought an extension of time to file
a response to the Defendants’ motion for summary judgment, Dkt. No.
21, which was granted by this Court on March 11, 2014 (Text Order).
An eight-page response in opposition to the Defendants’ motion,
together with a statement of disputed facts and a nineteen-page
exhibit, was filed on March 17, 2014 (Dkt. Nos. 22, 23).
On March 31, 2014, Ciprian’s claims against the members of the
Providence School Board were dismissed, without prejudice,1 because
Ciprian had failed to effect proper and timely service on them.
Accordingly, the Court lacked jurisdiction over those Defendants.
Memorandum and Order, Dkt. No. 24.
On April 15, 2014, the Court granted the City’s motion for
summary

judgment

on

the

grounds

that

Ciprian’s

charge

of

1

No further attempts were made to serve the individual
Defendants after the claims against them were dismissed.
2

discrimination was filed more than 300 days after the Providence
School

Board

had

issued

a

decision

to

terminate

Ciprian’s

employment. Memorandum and Order at 11, Dkt. No. 25. Judgment in
favor of the Defendants was entered on the same day, Dkt. No. 26.
No appeal was taken therefrom.
The matter now before the Court is Ciprian’s attempt, nearly
one year after the case was closed, to set aside the judgment and
revive the litigation. Pltf’s Motion for Relief from Judgment, Dkt.
No. 28. Ciprian’s pro se motion, brought pursuant to Rule 60 of the
Federal Rules of Civil Procedure, seeks to vacate the April 15,
2014 judgment and to afford Ciprian additional time to respond to
the Defendants’ motions to dismiss and for summary judgment.
Ciprian’s

submission

is

based

on

a

number

of

otherwise

unsupported assertions, e.g., that his counsel abandoned the case;
that Ciprian was unaware of the Defendants’ motions to dismiss and
for summary judgment; and that Ciprian “had not been contacted by
his attorney to discuss the case prior to August 2013.” Id. at Page
1

of

3.

Ciprian

makes

reference

to

unrelated

disciplinary

proceedings involving his counsel; Ciprian also notes that he last
spoke to his attorney in October 2014. Id. at Page 2 of 3.
The Defendants have filed an objection to Ciprian’s motion,
asserting that the motion is (1) untimely under Fed. R. Civ. P.
60(c)(1), (2) not contemplated by the Rule on which Ciprian relies,
and (3) without merit.

3

Rule 60 of the Federal Rules of Civil Procedure authorizes the
Court “[o]n motion and just terms...to relieve a party or its legal
representative from a final judgment, order, or proceeding” for a
variety of reasons. “A motion under Rule 60(b) must be made within
a reasonable time — and for reasons (1), (2), and (3)2 no more than
a year after the entry of the judgment or order or the date of the
proceeding.” Fed. R. Civ. P. 60(c)(1)(emphasis added).
Ciprian’s motion, filed on March 19, 2015, falls just
within the one-year outer limit of Rule 60(c)(1); however, that
does

not

render

the

delay

“reasonable.”

Judgment

for

the

Defendants was entered in April 2014, after Ciprian had been
granted additional time to respond to the motion for summary
judgment and after such a response had been duly filed by Ciprian’s
counsel. Although no objection had been filed to the individual
Defendants’ motion to dismiss, the record reveals unequivocally
that the Defendants had never received proper service and that the
claims against them were dismissed without prejudice. By Ciprian’s
own account, he did communicate with his counsel in October 2014,
five months before bringing the instant motion. Ciprian’s assertion
that he had not been contacted by his counsel to discuss the case
prior to August 2013 is incompatible with the undisputed fact that

2

Those reasons are (1) mistake, inadvertence, surprise or
excusable neglect; (2) newly discovered evidence; and (3) fraud,
misrepresentation, or misconduct by an opposing party. Fed. R. Civ.
P. 60(b)(1), (2), (3).
4

Ciprian and his counsel were present at a March 18, 2013 hearing
before this Court.
Ciprian’s motion makes reference to Fed. R. Civ. P. 60(b)(3).
That

subsection

relates

to

“fraud

(whether

previously

called

intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” Nothing in Ciprian’s motion, even if taken at face
value, includes any allegations of fraud or misconduct on the part
of the Defendants. At most, Ciprian appears to attempt to make an
argument for a case of “excusable neglect” under Fed. R. Civ. P.
60(b)(1).
Finally, even if Ciprian’s unsupported allegations were to be
credited, none of the asserted facts provide grounds to vacate the
judgment in favor of the Defendants. As noted, all claims against
the individual Defendants were dismissed because they had never
been served. The City’s motion for summary judgment was granted
because Ciprian’s claim was time-barred. There is no indication of
a

“clerical

mistake

or

a

mistake

arising

from

oversight

or

omission” in the judgment, any order, or the record of this case.
Fed. R. Civ. P. 60(a). Under those circumstances, this Court finds
that Ciprian has not established any grounds for reopening this
case and/or vacating this Court’s April 15, 2014 judgment.
Accordingly, Ciprian’s motion to vacate the judgment is DISMISSED.
Ciprian’s request to assign his motion to the Court’s

5

calendar (Dkt. No. 30) is DISMISSED AS MOOT.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
April 21, 2015

6