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United States District Court, Southern District of New York

May 21, 2003


The opinion of the court was delivered by: Robert Patterson, Senior District Judge.


Plaintiff Ellis Broadway Jr. ("Plaintiff") moves pro se pursuant to Rule 60(a) and (b) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P.") to vacate a judgment entered February 24, 1997 dismissing his complaint for failure to prosecute. For the following reasons, Plaintiff's motion is denied.


On April 18, 1996, the Plaintiff, filed a Complaint alleging a civil rights violation against the City of New York, et. al.*fn1 On February 19, 1997 and February 21, 1997, the Plaintiff failed to appear for the Court scheduled conferences in his case. As a result, on February 24, 1997, the case was dismissed by this Court for failure to prosecute. On March 7, 1997, the Plaintiff filed a change of address with the Court. On April 1, 1997, Plaintiff filed a notice of appeal and he also applied to this Court for permission to file a late notice. On May 5, 1997, by memo endorsement, this Court granted Plaintiff's application to file an untimely appeal and also allowed Plaintiff to reopen his case before this Court within ten days. It was also noted that the Plaintiff had given incorrect addresses to the Court. The Plaintiff failed to reopen his case before this Court.

On May 7, 1997, Plaintiff's appeal was filed with the Second Circuit. The Second Circuit granted Plaintiff the opportunity to appeal his case and a scheduling order was filed on June 3, 1997. On June 5, 1997, a notice for a change of address was filed and is reflected on the District Court docket sheet.*fn2 On July 16, 1997, an order dismissing the appeal was filed for failure to comply with the scheduling order.

On November 4, 1997, the Plaintiff moved to reinstate his appeal. On November 5, 1997, an order was filed in the Court of Appeals denying Plaintiff's motion without prejudice to renewal upon submission of a brief and appendix. The Court of Appeals docket contains no entry since November 6, 1997, when the notice of the order was filed. The Plaintiff failed to perfect his appeal before the Court of Appeals.

On July 18, 2002, the Plaintiff sent the Court a Pro Se Memorandum indicating an address change to Sing Sing Correctional Facility.

On September 19, 2002, Plaintiff filed the instant pro se motion to reopen this case. Attached to his notice of motion, Plaintiff included pages 10-12 of his Criminal History report which indicate that on February 6, 1997 his parole was revoked and he was admitted to Downstate Correctional Facility.*fn3 He was released on July 7, 1997. He also attached medical reports from the Montefiore Medical Center Rikers Island Health Services which indicate that he had been seen on a few occasions in 1996.

On November 2, 2002, this Court stated, by memo endorsement, that it would deny Plaintiff's motion pursuant to Rule 60 of the Fed.R.Civ.P. unless Plaintiff filed an affidavit prior to December 6, 2002, stating good and sufficient reasons (1) for his failure to move to reopen this case pursuant to the Court's order of May 5, 1997, at any time prior to September 19, 2002 and (2) for his failure to perfect his appeal as permitted by the order of the Court of Appeals on November 5, 1997.

On November 14, 2002, Plaintiff submitted an affidavit in reply. He also attached a copy of a notice of admission to Mid-Hudson Forensic Psychiatry Center showing that he was admitted on September 7, 2000 and discharged December 5, 2000. He also included medical reports recorded during that hospitalization period. Plaintiff also attached pages 13-17 of his criminal history report which shows that he was: arrested on September 3, 1998 and sentenced on September 4, 1998 to five days imprisonment; arrested on November 29, 1998 and was sentenced the next day to ten days imprisonment; arrested on December 8, 1998 and sentenced to one day of community service; arrested and sentenced on January 29, 1999 to time served; arrested on March 11, 1999 and no disposition was recorded; arrested on September 13, 1999 and sentenced the next day to time served; arrested on November 15, 1999 and sentenced the next day to time served; and arrested on April 2, 2000 and sentenced on April 17, 2000 to sixty days imprisonment. The Plaintiff also attached a letter addressed to him at the Westchester County Jail, dated April 25, 2001, from the Legal Aid Society declining assistance with this action and referring him to the Bronx Bar Association and NYC Bar Association Referral Services.

On December 12, 2002, Plaintiff filed additional material in support of his November Affidavit related to his physical and mental health treatment. The medical reports reflect medical examinations in January through May of 1997 and earlier. The Plaintiff was also admitted to St. Barnabas Correctional Services on April 4, 2000 for a blood test and discharged on April 5, 2000. He was also examined on April 20, 2000 by a psychiatrist. The medical reports did not indicate any lengthy hospital stays, or describe any condition which would have prevented his making a motion pursuant to Rule 60(b) at an earlier date.


Plaintiff moves under Fed.R.Civ.P. 60(a) and (b), requesting the Court to exercise discretionary authority to grant relief from the judgment. A motion under Rule 60(a) applies to "clerical mistakes" in judgments and is not applicable here. Rule 60(b) permits this Court to relieve a party from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief from the operation of the judgment.

Rule 60(b)(1), (2), and (3) motions must be made "not more than one year after judgment." Fed.R.Civ.P. 60(b). As both the judgment of this Court and the mandate of the Court of Appeals were in 1997, the Plaintiff's motion to vacate dated September 19, 2002 is time-barred for relief under Rule 60(b)(1), (2) and (3).

Motions seeking relief under 60(b)(4), (5), or (6), must be made within a "reasonable time." Fed.R.Civ.P. 60(b). On their face, sections (4) and (5) of Rule 60(b) are not applicable to the Plaintiff's case. Accordingly, this motion is treated as one pursuant to Rule 60(b)(6), the "catch-all" provision. See United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977) (Rule 60(b)(6) "represents a grand reservoir of equitable power that should be liberally applied").

A three-part test must be met for a Rule 60(b) motion to prevail: first, there must be "highly convincing" evidence supporting the motion; second, the moving party must show good cause for failing to act sooner; and third, the moving party must show that granting the motion will not impose an undue hardship on the other party. See Kotlicky v. United States Fidelity Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987). In addition, a motion cannot be filed under Rule 60(b)(6) if it could have been filed under Rule 60(b)(1), (2) or (3) but for the one-year time limit. See Cirami, 563 F.2d at 32. Moreover, the heavy burden for securing relief from final judgments applies to pro se litigants as well as to those who are represented by counsel. See Jedrejcic v. Croatian Olympic Comm., 190 F.R.D. 60, 77 (E.D.N.Y. 1999); Ovadiah v. New York Assoc. for New Americans, 1997 U.S. Dist. LEXIS 8803, at *14 No. 95 Civ. 10523 (SS), 1997 WL 342411, at *5 (S.D.N.Y. June 23, 1997); Salter v. Hooker Chem., Durez Plastic & Chem. Div., 119 F.R.D. 7, 9 (W.D.N.Y. 1988). While Rule 60(b) was designed to strike a balance between the interests of fairness and the finality of judgments, "final judgments should not be lightly reopened." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also Fetik v. New York Law Sch., 1999 U.S. Dist. LEXIS 9755, at *10, No. 97 Civ. 7746 (DLC), 1999 WL 459805, at *3 (S.D.N.Y. June 29, 1999).

In considering whether a Rule 60(b)(6) motion is made within a reasonable time, the particular circumstances of the case must be scrutinized, and the interest in finality must be balanced against the reasons for the delay. See PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1983). As a result, there is a high burden for the movant to demonstrate good cause for the failure to act sooner. See Kotlicky, 817 F.2d at 9. Considering the potentially broad scope of Rule 60(b), relief should be reserved for and granted only where the movant had demonstrated "extraordinary circumstances" or "extreme hardship." PRC Harris, Inc., 700 F.2d at 897; Truskoski v. ESPN, Inc., 60 F.3d 74, 76 (2d Cir. 1995) (motion filed eighteen months after grounds for motion became apparent was not filed within a "reasonable time" under Rule 60(b)(6)); Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (motion under Rule 60(b)(6) denied for an incarcerated petitioner because three and one-half years was not within a "reasonable time" and the moving party failed to show "extraordinary circumstances" to warrant relief).

In support of his civil rights complaint being reopened, Plaintiff states that such a result would be justified as a result of "[i]n[ad]vertence due to los[s] of documents and mental damage[], pain and suffering and not be[ing] able to litigate [his] case, [being denied the opportunity to] gather[] document[s] sooner, excusable neglect, conspiracy and fear of [his] life, T.N.T. officers [taking his] personal [belongings] and case file, [which served to] defer[] [his] case to [the] present time." See Plaintiff's Reply Affidavit filed November 14, 2003 at 3.

In the instant case, Plaintiff has failed to establish facts showing that his circumstances were sufficiently extraordinary to invoke relief under Fed. Rule Civ. P. 60(b)(6). In both 1996 and 1997, Plaintiff was pro se, in and out of the hospital, suffering from a mental condition and in and out of prison, yet he was able to file multiple documents with this Court and the Court of Appeals, including an Amended Complaint, an application to file a late notice of appeal, a notice of appeal with the Second Circuit, and change of address notices with the Court. Demonstrating in his Affidavits that he is still pro se and that his cycle of ill health and incarceration has continued, without evidence of more, does not reveal an "extraordinary" situation. In addition, both this Court and the Second Circuit gave Plaintiff a second opportunity to file untimely material in 1997. However, the Plaintiff has failed to furnish this Court with a "good and sufficient" justification as to why, for example, even in the fourteen month period that he was released from prison on July 7, 1997 to the first date of his re-arrest on September 3, 1998, he failed to communicate with the Court. He has failed to show a justifiable reason for a delay of five years in bringing this motion. Accordingly, the Plaintiff has failed to meet his burden to justify relief from the operation of the judgment, and his Rule 60 motion, made over five years after his last communication with the Court, has not been made within the prescribed "reasonable time."

The Plaintiff's motion pursuant to Fed.R.Civ.P. 60(b)(6) is denied. Plaintiff's discovery request dated March 18, 2003, pursuant to Fed.R.Civ.P. 30, 34, and 45 is denied as moot. The Clerk of the Court is directed to close this case.


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