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McDonald v. Holder

April 15, 2010

DAVID P. MCDONALD, PLAINTIFF,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES;*FN1 FEDERAL BUREAU OF PRISONS, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Presently before the Court is Plaintiff's motion for reconsideration of the Court's March 27, 2007 Decision and Order [dkt. # 47],*fn2 and for appointment of counsel. Dkt. # 62. For the reasons that follow, Plaintiff's motion is denied.

II. BACKGROUND

The procedural background of this action up to the time of the time of the March 27, 2007 Decision and Order is set forth in detail in that Decision and Order. See dkt. # 47. Familiarity with this Decision and Order is presumed.

For the reasons set forth in the March 27, 2007 Decision and Order, summary judgment was granted to Defendants on all claims. Judgment was entered for Defendants on March 27, 2007. Thereafter, Plaintiff's applications for an extension of time in which to file a Notice of Appeal were denied. See dkt. # 50, # 53, and # 54. Plaintiff filed a timely Notice of Appeal on May 25, 2007, appealing to the United States Court of Appeals for the Second Circuit. See dkt. # 55; Fed. R. App. P. 4(a)(1)(B)(notice of appeal my be filed within 60 days when the United States is a party).

Plaintiff's appeal was dismissed on February 8, 2008 because Plaintiff failed to respond to the Circuit Court's Order to Show Cause why he had not filed his appellate brief as specified in the Circuit Court's scheduling order. See Mandate, dkt. # 60.

Plaintiff's instant motion was filed via a letter to Chief Judge Norman A. Mordue received on February 22, 2010. Dkt. # 62.

III. DISCUSSION

a. Motion for Reconsideration

Plaintiff's motion for reconsideration must be denied because it is both untimely and without merit.

As to the timeliness of the motion, it is presumed that Plaintiff moves pursuant to Fed. R. Civ. P. 60(b) to vacate the March 27, 2007 Judgment. A motion under Rule 60(b)(1)-(3) must be made within one year after the judgment. See Fed. R. Civ. P. 60(c)(1). Any such motion here, made 35 months after entry of judgment, is untimely. Plaintiff does not assert any grounds that would warrant relief under Rule 60(b)(4) or (5). That leaves Rule 60(b)(6), which allows relief from a judgment for "any other reason that justifies relief."

A motion under Rule 60(b)(6) must be made within a reasonable time. See Fed. R. Civ. P. 60(c)(1). What is reasonable entails a balancing of the interest in finality with the reasons for the delay. Grace v. Bank Leumi Trust Co. of NY, 443 F.3d 180, 190 n.8 (2d Cir. 2006). "[A] Rule 60(b)(6) motion requires 'extraordinary circumstances,' which 'typically do not exist where the applicant fails to move for relief promptly.'" Id. (quoting 12 Moore's Federal Practice § 60.48[3][c] and Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 462 (2d Cir. 1994)).

The Court finds that Plaintiff has not made the motion within a reasonable time. Plaintiff offers no justifiable reason why the motion could not have made sooner, particularly in light of the Second Circuit's dismissal of his appeal back on February 8, 2008. See Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (Rule 60(b)(6) motion timely when made within days after remand to district court); Alston v. Quik Park Garage Corp., 205 F.3d 1321, 2000 WL 232188 (unpublished) (18 months was not a reasonable time); Amoco Overseas Oil Co. v. Compagnie Nationale Algerienne de Navigation, 605 ...


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