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Klein v. United Parcel Service

United States District Court, S.D. New York

September 17, 2014

SHMUEL KLEIN, Plaintiff,
v.
UNITED PARCEL SERVICE, et al., Defendants.

OPINION AND ORDER

EDGARDO RAMOS, District Judge.

Presently before the Court is Plaintiff's request to reopen the case. Doc. 8 ("Pl.'s Ltr."). For the reasons set forth below, the application is DENIED.

I. Background

Plaintiff Shmuel Klein ("Klein" or the "Plaintiff") initiated the instant action by filing the Complaint on March 24, 2011. Doc. 1.[1] A summons was issued that day, allowing for immediate service. During the following eleven months, Plaintiff neither served the Defendants nor communicated with the Court in any regard. Thus, on February 6, 2012, the Court issued an order warning Plaintiff that the action would be dismissed without prejudice unless within thirty days- i.e., on or before March 6, 2012-he either (1) filed proof of service with the Clerk of the Court or (2) explained in writing why a further extension of the time limit for service may be necessary. Doc. 5.

In light of Plaintiff's failure to file proof of service and failure to respond to the Court's February 6, 2012 order, the Court dismissed the action without prejudice on March 27, 2012, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.[2] Doc. 6. The Clerk of the Court closed the case on March 28, 2012. Doc. 7.

More than two years of silence passed. Then, on September 8, 2014, the Court received its first correspondence from Plaintiff since the filing of the Complaint in March 2011: a letter dated September 4, 2014 requesting that the matter be reopened. See Pl.'s Ltr.

Plaintiff represents that, after he filed the instant matter, the "District Attorney" (unnamed) "prosecuted [him]... and obtained convictions." Pl.'s Ltr. He does not specify whether the prosecution was related to the Section 1983 claims asserted in his Complaint, or of which offenses he was convicted. However, he claims that the prosecution and convictions are why he failed to timely effect service. Id. Plaintiff contends that the Court should now restore the matter to the docket because the New York State Appellate Term reversed both of his convictions on or about February 6, 2014. Id. Plaintiff further notes that "several months after [February 6, 2014], the prosecutor stated [that] he [would] no longer pursue the matter." Id.

II. Discussion

The Court construes Plaintiff's request as a motion to reopen pursuant to Rules 60(b)(1) and (6) of the Federal Rules of Civil Procedure, which state:

On motion and upon such terms as are just, the court may relieve a party... from a final judgment... for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect... or (6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reason[ ] (1)... not more than one year after the judgment, order, or proceeding was entered or taken.

Major v. Coughlin, No. 94 Civ. 7572 (DLC), 1997 WL 391121, at *2 (S.D.N.Y. July 11, 1997) (quoting Fed.R.Civ.P. 60(b)); see also, e.g., Meilleur v. Strong, 682 F.3d 56, 60 (2d Cir. 2012) (citing Lora v. O'Heaney, 602 F.3d 106, 111 (2d Cir. 2010) (treating an untimely motion for reconsideration as a Rule 60(b) motion)), cert. denied, 133 S.Ct. 655 (2012).

Rule 60(b)(1) offers relief from a judgment or order where the moving party demonstrates, inter alia, "excusable neglect." Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (quoting Fed.R.Civ.P. 60(b)(1)). Courts will find excusable neglect where a party's failure to comply with filing deadlines is attributable to negligence. Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997) (citing Pioneer Investment Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 388 (1993)). Where there has been abuse by the parties, however, a finding of excusable neglect is unwarranted. Lucas v. The Educ. Alliance, No. 98 Civ. 6280 (DLC), 1999 WL 287330, at *1 (S.D.N.Y. May 7, 1999). "The determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission, " including "prejudice to the adversary, the length ...


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