United States District Court, S.D. New York
August 22, 2005.
PAMELA M. HARRISON, Plaintiff,
NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, FRANK OLTON, JOHN PAPE, and ANTHONY DeFAZIO, Defendants.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM & ORDER
Pamela M. Harrison ("Plaintiff") moves pro se for an order "to
restore [this] case to [the Court's] calendar" under Rule 60 of
the Federal Rules of Civil Procedure. On September 30, 2003, the
Court granted Defendants' motion to dismiss Plaintiff's complaint
but granted Plaintiff leave to amend her complaint to properly
name the City of New York as a defendant within thirty days.
Harrison v. New York City Admin. for Children's Servs., No. 02
Civ. 947 (RCC), 2003 WL 22271219, at *5 (S.D.N.Y. Sept. 30,
2003). On May 24, 2004, the Court ordered that the case be closed
because Plaintiff had failed to file an amended complaint. On May
24, 2005 one year after the case was closed Plaintiff filed
this motion, claiming that she had complied with the Court's
order concerning amending the complaint. No amended complaint has
been filed to date. Because Plaintiff cannot show that she is
entitled to relief under Rule 60, Plaintiff's motion is DENIED.
Rule 60(a), which allows for relief from a judgment because of
a clerical mistake, is inapplicable here. Plaintiff claims that
Rule 60(a) applies because either a "clerical error caused [her]
amended complaint not to be properly entered" or the "documents
were purposely not filed or removed by [the] court's staff
member." (Plaintiff Aff. May 13, 2005.) But Rule 60(a) allows correction only of "[c]lerical mistakes in judgments, orders or
other parts of the record and errors therein arising from
oversight or omission," Fed.R.Civ.P. 60(a), that is, only "to
correct a judgment `for the purpose of reflecting accurately a
decision that the court actually made,'" Greenberg v. Chrust,
No. 01 Civ. 10080 (RWS), 2004 WL 585823, at *2 (S.D.N.Y. Mar. 25,
2004) (quoting Hodge ex rel. Skiff v. Hodge, 269 F.3d 155, 158
(2d Cir. 2001)). Plaintiff does not claim any such clerical error
here. And even if Rule 60(a) could be construed to allow a motion
to correct a filing error made by the Clerk of the Court,
Plaintiff offers no support for her contention that such an error
was made. She merely claims that copies of the amended complaint
were provided to the Court (at some unspecified time and in some
unspecified manner) and that nevertheless her amended complaint
was somehow never filed. (See generally Plaintiff Aff. May 13,
Plaintiff has also failed to show that she is entitled to
relief under Rule 60(b), which allows the Court to relieve a
party from a final judgment or order for such party's "mistake,
inadvertence, surprise, or excusable neglect," Fed.R.Civ.P.
60(b)(1), or for "any other reason justifying relief from the
operation of the judgment," id. 60(b)(6). The Second Circuit
has instructed that Rule 60(b) provides "extraordinary judicial
relief" that may be granted "only upon a showing of exceptional
circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.
1986). For Plaintiff's motion to succeed under Rule 60(b), she
must present highly convincing evidence in support of the motion,
show good cause for the failure to act sooner, and show that no
undue hardship will be imposed on the defendants as a result.
See Kotlicky v. U.S. Fidelity Guar. Co., 817 F.2d 6, 9 (2d
Cir. 1987); Williams v. New York Ciry Dep't of Corrections,
219 F.R.D. 78, 84 (S.D.N.Y. 2003); see also State Street Bank &
Trust Co. v. Inversiones Errazuriz Limitada,
246 F. Supp. 2d 231, 248 (S.D.N.Y. 2002) (noting that the burden of demonstrating
that relief is justified rests with the moving party). Plaintiff may not rely on her pro se status or her ignorance of
the filing procedures to ease this burden. See Williams,
219 F.R.D. at 85 (noting that failings attributable to a plaintiff's
pro se status cannot form a basis for Rule 60(b) relief and that
a plaintiff's pro se status "does not count as an exceptional
circumstance"); Broadway v. City of New York, No. 96 Civ. 2798
(RPP), 2003 WL 21209635, at *3 (May 21, 2003) ("The heavy burden
for securing relief from final judgments applies to pro se
litigants as well as those represented by counsel."); Gil v.
Vogliano, 131 F. Supp. 2d 486, 494 (S.D.N.Y. 2001) ("[P]ro se
litigants are not . . . excused from the requirement that they
produce `highly convincing' evidence to support a Rule 60(b)
motion."); see also Canfield v. Van Atta Buick/GMC Truck,
Inc., 127 F.3d 248, 250 (2d Cir. 1997) ("[I]nadvertence,
ignorance of the rules, or mistakes construing the rules do not
usually constitute `excusable neglect.'"). Plaintiff claims that
copies of the amended complaint were provided to the Court, but
does not specify how or when; she claims that then either a
clerical error (of some unspecified type) or the intentional
misbehavior by some unspecified member of the Court's staff
caused the amended complaint not to be properly entered. (See
Plaintiff Aff. May 13, 2005.) Plaintiff does not provide the
Court with any support of her contentions and has therefore
failed to show that she is entitled to "extraordinary judicial
relief" as required by Rule 60(b).
For the foregoing reasons, Plaintiff's motion is DENIED.
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