house, I was informed that the papers were submitted. The fact that I am acting pro se and do not possess all the capabilities of an attorney I should be afforded to at least have my day in court.
Vallenzano Aff. P 31.
Rule 60(b) gives a court discretion to relieve a party from a final judgment, order, or proceeding for one of the following reasons to which Vallenzano refers:
(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; . . . or (6) any other reason justifying relief from the operation of a judgment.
The Second Circuit has held that "motions under rule 60(b) are addressed to the sound discretion of the district court and are generally granted only upon a showing of exceptional circumstances." Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff'd 115 L. Ed. 2d 109, U.S. , 111 S. Ct. 2173 (1991); see Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).
Vallenzano's repetition of arguments previously before the Court, which were given the full weight of consideration in the Opinion of May 21, 1992, fails to constitute a genuine ground for relief pursuant to Rule 60(b). Vallenzano's proofs fall far short of satisfying the requirements of that rule even under the liberal allowance a court must give to pro se pleadings. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972).
This motion ultimately turns on the single question of whether Vallenzano's failure to present his opposition to Petersen's motion in oral argument before the Court constitutes a legitimate ground for relief and triggers the Court's discretionary powers under Rule 60(b).
Vallenzano does not allege that he was the victim of fraud or misrepresentation perpetrated by Petersen regarding the information he received from him about the scheduled time of the oral arguments before the Court. However, even if he were assumed to be making this allegation, his claim would necessarily fail absent a showing of clear and convincing evidence. See Minpeco, S.A. v. Hunt, 127 F.R.D. 460, 462 (S.D.N.Y. 1989). Thus, Vallenzano's contention does not qualify under subpart (3) or any of the other four specific conditions set forth in subparts (1), (2), (4), (5) for Rule 60(b) relief. Therefore, Vallenzano can bring his motion only under subpart (6) of the rule.
Subpart (6) is the catchall condition that allows a court to grant relief for "any other reason justifying relief from the operation of a judgment."
Subpart (6) . . . confers broad discretion on the trial court to grant relief when appropriate to accomplish justice; it constitutes a grand reservoir of equitable power to do justice in a particular case. It is properly invoked where there are extraordinary circumstances; or where the judgment may work an extreme and undue hardship, and should be liberally construed when substantial justice will thus be served.
Matarese v. Le Fevre, 801 F.2d 98, 106 (2d cir. 1986) (citations and internal quotations omitted), cert. denied, 480 U.S. 908, 107 S. Ct. 1353, 94 L. Ed. 2d 523 (1987).
Vallenzano has neither claimed nor presented any evidence that he was prejudiced in any way by the Court's taking Petersen's motion for summary judgment on submission.
Since Vallenzano has presented the same papers, containing precisely the same arguments, in support of this motion as those that he filed in opposition to Petersen's motion for summary judgment, if Vallenzano had appeared before the Court and presented his opposition orally to Petersen's motion, his appearance would have had added nothing to the record upon which the Court decided Petersen's motion.
Vallenzano was not prejudiced by the Court's taking Petersen's motion on submission. Vallenzano has failed to make the requisite Rule 60(b) showing either of exceptional circumstances, see Ackermann v. United States, 340 U.S. 193, 71 S. Ct. 209, 95 L. Ed. 2d 207 (1950); Mendell, 909 F.2d at 731, or that substantial justice would be served, see Matarese, 801 F.2d at 106. There is no reason, even under the catchall condition of subpart (6), for Vallenzano to be granted relief pursuant to Rule 60(b), and if such relief were granted, it would constitute a substantial injustice against Petersen.
For the reasons set forth above, Vallenzano's motion for reconsideration is denied and his motion for a stay is rendered moot.
It is so ordered.
New York, N. Y.
October 9, 1992
ROBERT W. SWEET
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