Appeal from an order of the United States District Court for the District of Connecticut (Dorsey, J.,), denying plaintiff's motion pursuant to Fed. R. Civ. P. 60(b) for relief from a judgment dismissing plaintiff's complaint pursuant to Fed. R. Civ. P. 37.
Timbers, Pierce and Altimari, Circuit Judges.
Appellant pro se Howard J. Kotlicky appeals the order of the United States District Court for the District of Connecticut (Dorsey, J.) denying his motion to vacate the judgment entered on June 12, 1986, which dismissed his complaint and awarded attorney's fees and costs to defense counsel.*fn1 Appellant contends that the district court abused its discretion by failing to consider new and material information justifying relief from the district court's judgment of dismissal under Fed. R. Civ. P. 37. We agree.
In December 1985, appellant initiated this action in the Northern District of Illinois against appellee, United States Fidelity & Guaranty Company, as corporate surety for Richard Belford and Richard Coan, respectively the former trustee and alleged successor trustee in the bankruptcy of Anthony R. Martin-Trigona. The action was transferred to the District of Connecticut pursuant to 28 U.S.C. § 1404(a) by Memorandum Opinion and Order dated February 28, 1986. This transfer decision was appealed to the Seventh Circuit but was dismissed for lack of jurisdiction. Kotlicky v. United States Fidelity & Guaranty Co., No. 85-1498 (7th Cir. June 30, 1986).
On April 25, 1986, the District of Connecticut Judge to whom the action was assigned issued a scheduling order directing that all discovery be completed on or before June 23, 1986. On April 29, 1986, appellee served notice of a May 6th deposition on appellant by certified mail at appellant's home in Downers Grove, Illinois. The notice was filed with the district court on April 30, 1986, and indicated that the deposition was to take place in Hartford, Connecticut. The certified mail receipt indicates that attempts were made to serve appellant on May 5th and May 10th, and that the notice was returned to appellee as "unclaimed" on May 20th. Appellant failed to appear for the deposition as scheduled, and thus counsel for appellee orally reserved the right to seek sanctions and to move to dismiss the complaint with prejudice. On May 7, 1986, appellee moved to dismiss appellant's action pursuant to Fed. R. Civ. P. 37(b)(2)(C) for failure to appear at the deposition.
The district court granted the Rule 37 motion on the grounds that appellant had failed to comply with a duly noticed deposition, had not shown any basis for being excused from compliance with the Federal Rules, had not sought a protective order, and had not submitted any objection to the motion. The court also assessed costs against appellant in the amount of $200 for reasonable attorney's fees and $30 for transcript preparation. Judgment was entered on June 12, 1986. Appellant finally submitted opposition papers to the Rule 37 motion, which were filed on June 12, 1986, after the entry of judgment.
On July 2, 1986, appellant filed an affidavit and motion to vacate the order of dismissal, asserting that he still had not received notice of his deposition, that the district court lacked jurisdiction, and that the notice provided by appellee was unreasonable and not calculated to inform appellant of the scheduled deposition. In a supplement to this motion, filed on July 23, 1986, appellant explained that he could not have received notice on May 5, when delivery was first attempted, because he had been on duty as an airline and military pilot. Appellant provided copies of flight logs in support of this explanation, indicating that he was on duty from 7:50 a.m. on May 5 until 7:06 p.m. on May 6th, and on May 7 from 6:25 a.m. until 4:00 p.m.
On July 23, appellant also filed a motion to retransfer the action to the Northern District of Illinois. The district court denied this motion on August 21, 1986, "for the reasons stated in . . . [the] opinion and order [of the Northern District of Illinois] dated February 28, 1986." On September 3, 1986, the district court likewise denied appellant's motion to vacate the order of dismissal, finding that appellant failed "to introduce any new information sufficient to warrant such a reversal." This appeal followed.
Appellant in his Notice of Appeal designated his motion to vacate as one brought pursuant to Federal Rule of Civil Procedure 59. However, the motion should in fact be treated as a Rule 60(b) motion, since it was filed more than ten days after the entry of judgment.
Appellate review of a decision to grant or deny relief under Rule 60(b), which provides for relief from a final judgment, is restricted to determining whether the trial court abused its discretion. See Browder v. Director, Department of Corrections, 434 U.S. 257, 263 n.7, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978); In re Emergency Beacon Corp., 666 F.2d 754, 760 (2d Cir. 1981). Relief under Rule 60(b) is limited to one of the six grounds specified in the rule:
On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been ...