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Jova v. Smith

May 29, 2008

TYHEEM KEESH; JESUS JOVA, PLAINTIFFS,
v.
JOSEPH T. SMITH; EVAN GORELICK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM DECISION and ORDER

Presently*fn1 before the court is plaintiffs' "Motion to Vacate" this court's decision granting defendants summary judgment, dismissing this action. (Dkt. No. 130). Defendants have filed a response to plaintiffs' motion, and plaintiffs have filed a reply. (Dkt. Nos. 133, 135). Plaintiffs have also filed a "Supplemental Affirmation" and a letter in further support of their motion.*fn2 (Dkt. Nos. 136, 137). For the following reasons, this court agrees with defendants and will deny plaintiffs' motion to vacate.

DISCUSSION

1. Motion to Vacate

Plaintiffs state that they have made this motion to vacate pursuant to FED. R. CIV. P. 60(a) and (b). (Dkt. No. 130 at 1). In their motion, they make a variety of arguments asking this court to vacate its decision to grant summary judgment in favor of defendants. They claim that this court has misconstrued the facts and misinterpreted the law, that there are additional facts supporting plaintiffs' position, and that the defendants committed fraud or "other misconduct" in presenting their case. Basically, plaintiffs ask this court to reconsider its prior decision.

The court would first point out that Rule 60(a) is reserved for clerical errors and is not relevant to plaintiffs' request. Rule 60(a) is reserved for changes that would "implement the result intended by the court at the time the order was entered." Rezzonico v. H & R Block, Inc., 182 F.2d 144, 150-51 (2d Cir. 1999)(quotation omitted)(distinguishing between Rules 60(a) and (b)), cert. denied, 528 U.S. 1189 (2000); Williams v. Breslin, 03 Civ. 1848, 2004 U.S. Dist. LEXIS 20991, *7-10 (S.D.N.Y. Oct. 21, 2004)(same). The result intended by this court at the time the order was entered was dismissal of the action. Plaintiffs are not asking for changes that would "implement" the dismissal of the case.

Rather, plaintiffs ask this court to change its decision. Plaintiffs in this case are focusing upon Rule 60(b) which provides that, upon a motion, made within a reasonable time,*fn3 a court may relieve a party from a final judgment for the following reasons:

(1) 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 the operation of the judgment.

FED. R. CIV. P. 60(b). Thus, this court has interpreted plaintiffs' motion as one under Rule 60(b). The standards for motions to vacate under Rule 60(b) are very similar to those used for motions to reconsider under local district court rules. See McAnaney v. Astoria Finance Corp., 04-CV-1101, 2008 U.S. Dist. LEXIS 5535, *7-10 (E.D.N.Y. Jan. 25, 2008) (discussing cases).

Relief under Rule 60 is considered "extraordinary judicial relief." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). For that reason, the standard for granting relief from a final judgment under Rule 60 is very strict, and the motion will generally be denied unless the moving party or parties can show that the court overlooked facts or controlling law that "might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transport, Inc., 70 F.3d 255, 257 (2d Cir. 1995)(citations omitted). Motions to vacate or to reconsider*fn4 should not be granted if the moving party or parties seeks only to relitigate an issue that has already been fully considered by the court. Id. at 257. The court must be cautious that this type of motion is not used as a substitute for appealing a final judgment. Commercial Risk Reinsurance Co., Ltd. v. Sec. Ins. Co. of Hartford, 2007 U.S. Dist. LEXIS 91441 (S.D.N.Y. Dec. 12, 2007); Morser v. AT & T Information Systems, 715 F. Supp. 516, 517 (S.D.N.Y. 1989)(citation omitted).

The strict requirements of Rule 60(b) are applicable to pro se litigants notwithstanding the liberality that must be afforded to them. Flaherty v. Hackeling, 221 F.R.D. 383, 386 (E.D.N.Y. 2004). Pro se plaintiffs are not excused from producing highly convincing evidence in support of their motion to vacate a final judgment. Fetik v. New York Law School, No. 97 Civ. 7746, 1999 U.S. Dist. LEXIS 9755, *10-11 (S.D.N.Y. June 29, 1999).

2. Mistake

Rule 60(b)(1) allows a motion to vacate based upon "mistake, inadvertence, surprise, or excusable neglect." In their motion, plaintiffs cite to various alleged "mistakes" in fact and in law made by this court in its decision. However, plaintiffs are basically attempting to relitigate issues that have already been decided. As an example, plaintiffs state that the court referred to plaintiff Keesh as the "Creator" in a parenthetical, but that plaintiff Keesh never claimed to be the Creator.

(Dkt. No. 130, Pls. Memo of Law at p.3)(citing Dkt. No. 126 at pp. 4-5). Plaintiffs, however, apparently did not read the rest of the pages that they cite. The court begins page 4 of its decision stating that "[a]ccording to plaintiff Keesh, 'Tulukeesh' is the 'Religion of Zee Keesh (the ...


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