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United States v. Burnette

January 22, 2007


The opinion of the court was delivered by: Sifton, Senior Judge.


In 1998, the government brought this action against defendant Maurice Burnette to recover student loans on which he allegedly defaulted. Default judgment was entered in favor of the government in 2000. Defendant now brings this motion to vacate the judgment in the amount of $4,075.06 plus interest from the date of judgment. The judgment remains unpaid. For the reasons set forth below, the motion is denied.


The following facts are taken from the submissions of the parties and oral arguments heard in connection with this motion. Disputes are noted.

In 1998, the government filed an action against the defendant for defaulting on his student loans.*fn1 The defendant answered the government's complaint on April 5, 1999.*fn2 An initial conference was set before Magistrate Judge Go for August 6, 1999 but neither party attended and a new conference was set for August 19, 1999. At that conference, the defendant appeared an hour late, after the plaintiff had already been excused by the Magistrate Judge. On August 23, 1999, the Magistrate Judge rescheduled the initial conference for September 13, 1999. Defendant again failed to appear. On September 17, 1999, Magistrate Judge Go sanctioned the defendant $50.00 and directed the defendant to provide the Court with a statement by October 18, 1999 explaining why he failed to appear for the previous status conferences. In that order, Magistrate Judge Go also warned the defendant that failure to submit a status report, an adequate explanation for his failure to appear or timely payment of the penalty would result in a recommendation of default. On February 23, 2000, Magistrate Judge Go, having received no response from the defendant, issued a Report and Recommendation that a default judgment be entered in favor of the plaintiff. On March 27, 2000, the undersigned adopted that Report and Recommendation, and directed the Clerk of the Court to note the default; plaintiff was also instructed to submit a proposed judgment. A copy of the Court's order was mailed to the defendant by the Clerk but returned to sender on April 24, 2000.*fn3

Plaintiff submitted a proposed judgment on May 1, 2000 and default judgment was entered in favor of the plaintiff on May 18, 2000 for $4,075.06*fn4 plus interest "at the legal rate in effect on the date of the judgment."

Six years later, on August 14, 2006, the defendant filed the current motion pro se. According to the defendant, at the time of the original action he was in recovery from "full blown AIDS" and "making life adjustments to HIV" and "95% of times . . . [he was unable] to follow-up on most issues affecting [his] daily life" as he was experiencing serious side effects from his medication. During this period of time he was also evicted and changed addresses several times and at some point he moved from the address appearing on his answer and left no forwarding address.


Since the defendant in this case is proceeding pro se, there is an obligation to "liberally construe . . . [the] pleadings to raise the strongest argument they might suggest." U.S. v. Estrada, 2006 WL 3050886, at *1 (E.D.N.Y. 2006) (discussing application of rule 60(b) motions to vacate judgment) (internal citations and quotations omitted).

A motion to set aside a default judgment is governed by Federal Rule of Civil Procedure 60(b) which reads:

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 rule further states that "[t]he 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." Id.

A motion to vacate under Rule 60(b) is "addressed to the sound discretion of the district court and [is] generally granted only upon a showing of exceptional circumstances." Mendell, on Behalf of Viacom, Inc. V. Gollust, 909 F.2d 724, 731 (2d Cir. 1990); see also First Fidelity Bank, N.A. v. Gov't of Antigua & Barbuda, 877 F.2d 189, 196 (2d Cir. 1989) (noting that a motion under Rule 60(b)(6) is appropriate only under "extraordinary circumstances"). "Evidence in support of the motion to vacate a final judgment [must] be highly convincing." Kotlicky v. United States Fidelity Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987); see also Raposo v. U.S., 2005 WL 292750, at *2 (S.D.N.Y. 2005) (noting that the "highly convincing" requirement also applies to pro se litigants).

A defendant's severe illness at the time of the default may be sufficient for a finding of "excusable neglect" under Rule 60(b)(1). See Carcello v. TJX Companies, Inc., 192 F.R.D. 61, 64 (D.Conn. 2000) ("In determining whether the default is excusable neglect, the court may consider a movant's severe illness"). However, the defendant is plainly time-barred from raising a claim under Rule 60(b)(1) since it has been more than a year since judgment was entered ...

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