The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
On July 24, 2001, plaintiff's Section 1983 complaint in this
action was dismissed following a jury verdict for the defendants.
Plaintiff now requests that his case be reopened. For the reasons
that follow, the motion is denied.
In 1996, plaintiff Daryl Jackson filed a Section 1983 claim
arising out of an alleged assault at Downstate Correctional
Facility by Sgt. Gregory Kerns, C.O. Sassi, and C.O. William
Geslain. Judgment was entered for the defendants, and the
complaint was dismissed on July 24, 2001. By letters dated July
21, July 27 and September 8, 2004, plaintiff requests that his
Section 1983 case be reopened because defendant Sassi committed
perjury in his testimony at trial. Plaintiff alleges that defendant Sassi did not actually testify
at trial, but that an imposter posing as defendant Sassi took the
witness stand in his place and falsely identified himself as
defendant Sassi. Plaintiff asserts that he became aware of this
misconduct when he returned to prison after trial and realized
that the officer he recognized as defendant Sassi did not
resemble the man who testified as defendant Sassi at trial.
Plaintiff's first request to reopen this case was submitted
almost three years after the entry of judgment. At that time, the
ten-day period during which plaintiff could have made a motion
for a new trial under Fed.R.Civ.P. 59(b) had long since
expired. Therefore, plaintiff's request must be construed as a
motion for relief from final judgment under Fed.R.Civ.P. 60.
Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
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 (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that
the judgment should have prospective application; or
(6) any other reason justifying relief from the
operation of the judgment. The motion shall be made
within a reasonable time, and for reasons (1), (2),
and (3) not more than one year after the judgment,
order, or proceeding was entered or taken.
The present claim is properly considered as a claim for fraud
upon an adverse party under Fed.R.Civ.P. 60(b)(3), rather than
as a claim for "any other reason justifying relief" under the
general residual provision of Rule 60(b)(6). United States v.
Int'l Bhd. of Teamsters, 247 F.3d 370
, 391-92 (2d Cir. 2001)
(holding that if the reasons offered for relief from judgment can
be considered under one of the more specific clauses of Rule
60(b), i.e., 60(b)(1)-(5), such reasons will not justify relief
under Rule 60(b)(6)). However, a motion based on fraud upon an
adverse party under Rule 60(b)(3) must be made within one year of
entry of judgment. Fed.R.Civ.P. 60(b). Plaintiff's 60(b)(3)
motion, filed almost three years after the entry of judgment in
this case, is therefore untimely.
Plaintiff's request may also be considered as an independent
action for relief from judgment under the clause in Rule 60(b)
that permits a motion for relief from judgment based upon a "fraud upon the court" to be made at any
time. Fed.R.Civ.P. 60(b) ("This rule does not limit the power
of a court to entertain an independent action to relieve a party
from a judgment, order, or proceeding, or to grant relief to a
defendant not actually personally notified as provided in Title
28, U.S.C., § 1655, or to set aside a judgment for fraud upon the
court."); Wolfson v. Wolfson, No. 03 Civ. 0954(RCC), 2004 WL
224508, at *5 (S.D.N.Y. Feb. 5, 2004) ("Unlike post-judgment
motions for 60(b) legal relief, which must be brought within
one year after judgment is entered, an independent action in
equity may be brought at any time."). To maintain an independent
action for equitable relief from judgment, plaintiff must (1)
show that he has no other available or adequate remedy; (2)
demonstrate that plaintiff's own fault, neglect, or carelessness
did not create the situation for which he seeks equitable relief;
and (3) establish a recognized ground such as fraud, accident,
or mistake for the equitable relief. Campaniello Imports, Ltd.
v. Saporiti Italia S.p.A., 117 F.3d 655, 662 (2d Cir. 1997).
Plaintiff's claim fails because he cannot demonstrate that his
own fault did not create the situation for which he now seeks
equitable relief. Plaintiff was aware of the alleged fraud prior
to the expiration of the one-year period in which plaintiff could have filed a Rule 60(b)(3)
motion. Plaintiff therefore had an adequate remedy at law, under
Rule 60(b)(3), which he failed to pursue within one year of
judgment. Campaniello Imports, Ltd., 117 F.3d at 662 (holding
that plaintiffs were barred from pursuing an independent action
for relief because they could not show that their own
carelessness in failing to bring a timely motion for relief under
Rule 60(b)(3) did not create the situation for which they sought
equitable relief); Wolfson, 2004 WL 224508, at *5 (holding that
plaintiff was barred from pursuing an independent action for
relief from fraud when plaintiff had "ample time to submit a Rule
60(b)(3) motion" on his claim prior to the one-year deadline).
Plaintiff's failure to pursue his remedy at law under
Fed.R.Civ.P. 60(b)(3) now bars him from asserting an independent claim
for equitable relief.
For the foregoing reasons, defendant's motion is denied.
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