United States District Court, E.D. New York
BENNIE GIBSON, Plaintiff,
DAVID WISE, BERNARD KERIK, COMMISSIONER OF CORRECTIONS, LORENZI, an Informant for NYPD, COMMISSIONER, DEPARTMENT OF SANITATION, Defendants.
The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge
MEMORANDUM AND ORDER
On April 30, 2002, this Court dismissed Plaintiff Bennie
Gibson's Complaints as frivolous and malicious pursuant to
28 U.S.C. § 1915A and barred Plaintiff from filing any future
complaints, unless he demonstrated imminent danger of serious
physical injury. The order dismissing Plaintiff's case was filed
and entered by the clerk of the court that same day, April 30,
2002. On March 21, 2003, Plaintiff filed a motion for reconsideration of the Court's April 30, 2002 decision.*fn1
For the reasons stated herein, Plaintiff's motion is DENIED.
I. Local Civil Rule 6.3
Rule 6.3 of the Local Rules of the Eastern District of New York
provides that a motion for reconsideration of a final judgment
"shall be served within ten days after the docketing of the
court's determination of the original motion" and shall set forth
"the matters or controlling decisions which [the movant] believes
the court has overlooked." Local Civ. R. 6.3 ("Rule 6.3").
Plaintiff's motion is therefore untimely. The Court's order
dismissing Plaintiff's Complaints was docketed on April 30, 2002.
Under Rule 6.3, Plaintiff was required to serve his motion for
reconsideration on Defendants by May 10, 2002. Plaintiff's motion
was filed on March 21, 2003. (See Docket Entry #19.)
Plaintiff's pro se status does not insulate him from complying
with the relevant procedural rules. See Leonard v. Lowe's Home
Centers, 00 Civ. 9585, 2002 U.S. Dist. Lexis 6249, at *4
(S.D.N.Y. April 15, 2002). Because Plaintiff filed the instant
motion more than 10 days after the Order and Judgment were
docketed, his motion for reconsideration under Local Rule 6.3 is
dismissed. II. Federal Rule of Civil Procedure 60(b)
Rule 60(b) of the Federal Rules of Civil Procedure states that
"the court may relieve a party . . . from a final judgment, order
or proceeding for the following reasons: . . . (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);
. . . [or] (6) any other reason justifying relief from the
operation of the judgment." Fed.R. Civ. P. 60(b). Rule 60(b)
"allows extraordinary judicial relief" and should be "invoked
only upon a showing of exceptional circumstances." Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citations omitted). A
Rule 60(b) motion cannot serve as a substitute for an appeal.
Competex, S.A. v. Labow, 783 F.2d 333, 335 (2d Cir. 1986);
Bennett v. Watson Wyatt & Co., 156 F.Supp. 2d 270, 273
(S.D.N.Y. 2001). The burden of proof is on the party seeking the
relief. See United States v. Int'l Bhd. of Teamsters,
247 F.3d at 370, 391 (2d Cir. 2001).
"In order to vacate a judgment under Rule 60(b)(2), a movant
must: (i) submit newly discovered evidence of facts existing at
the time of the original judgment; (ii) show that the moving
party was excusably ignorant of the facts at the time of the
original judgment, despite using due diligence to learn about
those facts; (iii) show that the newly discovered evidence is
admissible and probably effective to change the result of the
previous ruling; and (iv) show that the newly discovered evidence
is not merely cumulative or impeaching of evidence already
offered." Ross v. Global Bus. Sch., Inc., 99 Civ. 2826, 2002
U.S. Dist. LEXIS 20941, at *3-4 (S.D.N.Y. Oct. 30, 2002). Here, Plaintiff has not submitted any new evidence to support
relief under Rule 60(b)(2), nor has he set forth any other reason
justifying relief from the judgment under Rule 60(b)(6). The
arguments Plaintiff sets forth in this motion are the same
arguments he initially raised. See Bennett,
156 F. Supp. 2d at 273 (denying a Rule 60(b)(2) motion because plaintiff
only raised issues previously decided by the court).
For the foregoing reasons, Plaintiff's motion for
reconsideration is DENIED.