United States District Court, W.D. New York
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
Plaintiff, a prisoner in the custody of the New York State Department of Corrections and Community Services ("DOCCS"), brought this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. On February 4, 204, the issued a Decision and Order (Docket No. [#57]), granting Defendants' motion to revoke Plaintiff's in forma pauperis status and dismissing this action. Sixteen days later, on February 21, 2014, Plaintiff filed a motion [#60] for reconsideration/vacatur of that Decision and Order, styled as a motion "pursuant to Rule 60(b)(3), (4), (6) of the Federal Rules of Civil Procedure." The application is denied.
In the prior Decision and Order, the Court granted Defendants' application to revoke Plaintiff's in forma pauperis status and dismiss this action, because it found that Plaintiff intentionally misled the Court about his litigation history when he commenced this action. Specifically, Plaintiff hid the fact that he already had more than three "strikes" for purposes 28 U.S.C. § 1915 when he applied for in forma pauperis status, and that he intentionally failed to disclose numerous other lawsuits that he had filed.
Plaintiff now contends that the Decision and Order [#57] should be "vacated, " because Defendant's counsel, an Assistant of the New York State Attorney General, defrauded the Court. Plaintiff's theory on this point is bizarre: He contends that the attorney undertook to represent the Defendants in this action without their authorization, and that the Defendants actually have no knowledge of this lawsuit. Because of that, Plaintiff further contends, this Court never obtained personal jurisdiction over the Defendants:
[S]uch Order is void and of no effect because the Defendants were not brought properly before the Court by voluntary appearance or by service of process upon them, in which jurisdiction over the person of each Defendant was never acquired by the Court.... Defendants never had knowledge of the civil action and were being kept in ignorance by the acts of Plaintiff's opponent who fraudulently or without authority assumed to represent Defendants[.]
Rule 60(b) Motion [#60] at ¶ ¶ 3-4. Plaintiff purportedly arrived at this conclusion after reviewing the docket sheet. For example, Plaintiff contends that "[t]here are no docket entries showing that the Clerk of the Court... cause[d] the U.S. Marshal to serve copies of the Summons [and] Complaint... upon the Defendants." Id. At ¶ 8. In fact, though, docket entry [#7] indicates that Defendants Conway, James, Kennedy, Monin, Dougherty and Norcross were served with process in this action. The docket does not expressly indicate that defendants Goord and Woods were served, but both of them appeared in the action and filed Answers to the Complaint, which do not raise the issue of jurisdiction. See, docket nos. [#10] & [#16]. Moreover, Defendants have never questioned the Court's jurisdiction over them. Consequently, there is no genuine issue as to whether the Court has jurisdiction over Defendants. See, Motown Record Co., L.P. v. Motown Beverage Co. of Ohio, No. 97-9612, 165 F.3d 14 (table), 1998 WL 781449 at *1 (2d Cir. Nov. 6, 1998) ("Boyd effectively waived his challenge to personal jurisdiction and venue by filing an answer which did not set forth these defenses, and by failing to press the personal jurisdiction [issue]. As we have made clear, waiver of a challenge to personal jurisdiction may occur due to a party's conduct, as well as its failure to raise the defense in motions or pleadings."). Nor is there any reason think that the Defendants are unaware of this lawsuit.
Plaintiff brings this motion pursuant to Rule 60(b), subsections (3), (4) and (6), which state, in pertinent part:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or ...