Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Chiulli v. Internal Revenue Service

October 20, 2006

MARY ANN CHIULLI AND ROBERT MOORE, PLAINTIFFS,
v.
INTERNAL REVENUE SERVICE, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

ORDER AND OPINION

I. Introduction

Plaintiffs move for an order pursuant to Fed.R.Civ.P. 60(b) granting relief from the judgment that was entered on May 2, 2005 dismissing their claims. The parties have consented to my exercising jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, plaintiffs' motion is denied.

Facts

The facts of this case are set forth more fully in my Opinion and Order dismissing the action, familiarity with which is assumed. Chiulli v. Internal Revenue Serv., 03 Civ. 6670 (HBP), 2005 WL 579885 (S.D.N.Y. Mar. 11, 2005). I concluded in that Opinion that plaintiffs had failed to commence their refund action in a timely manner and, therefore, dismissed plaintiffs' claims for a refund of approximately $12,000 in overpaid taxes. Judgment was entered on May 2, 2005.

Plaintiffs filed a notice of appeal from that Order on July 7, 2005. Pursuant to Fed.R.App.P. 4(a)(1)(B), plaintiffs had 60 days from the date the judgment was entered, or until July 1, 2005, to file their notice of appeal. Accordingly, plaintiffs' filing of their notice of appeal on July 7, 2005 was untimely.

Plaintiffs subsequently moved for an extension of time to file a notice of appeal. I denied that motion on October 4, 2005. Chiulli v. Internal Revenue Serv., 03 Civ. 6670 (HBP), 2005 WL 2446233 (S.D.N.Y. Oct. 4, 2005).

Plaintiffs now seek relief pursuant td Rule 60(b) from the judgment that was entered on May 2, 2005 dismissing their claims.

III. Analysis

A. Standard for a Rule 60(b) Motion

Rule 60(b) sets forth the grounds on which a court may grant relief from a final judgment or order. Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). It provides impertinent part that:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgent, order or proceeding for the following rea ons: (1) s mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . .; or (6) any other reason justifying relief from th operation of the judgment. The motion shall be m de 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 Second Circuit has stated that Rule 60(b) "preserves a balance between serving the ends o4 justice and ensuring that litigation reaches an end within a finite period of time." House v. Sec'y of Health & Human Servs., 688 F.2d 7, 9 (2d Cir. 1982). Although Rule 60(b) "should be broadly construed to do 'substantial justice,' . . . final judgments should not be lightly reopened." Nemaizer v. Baker, supra, 793 F.2d at 61, citing Seven Elves. Inc. v, Eskenazi, 635 F.2d 496, 401 (5th Cir. 1981); Raposo v. United States, 01 Civ. 5870 (DAB), 98 Cr. 185 (DAB), 2005 WL 292750 at *2 (S.D.N.Y. Feb. 8, 2005); Amorosi v. Comp USA, 01 Civ. 4242 (KMK), 2005 WL 66605 at *2 (S.D.N.Y. Jan. 12, 2005).

Motions made pursuant to 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), citing Nemaizer v. Baker, supra, 793 F.2d at 61; Jones v. United States, 95 Civ. 0924 (DRH), 2006 WL 1120604 at *1 (E.D.N.Y. April 6, 2006). The Second Circuit requires that a Rule 60(b) motion be supported by evidence that is highly convincing, that the movant show good cause for the failure to act sooner, and that no undue hardship result to the other parties. Greenberg v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.