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denying Rule 60(b) motion where "the essence of [the party's] argument is simply that the jury reached the wrong result"
Summary of this case from Dolan v. Select Portfolio Servicing, Inc.Opinion
No. 09-3628-pr.
June 7, 2010.
Appeal from the United States District Court for the Southern District of New York (Kevin Nathaniel Fox, Magistrate Judge).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court entered on August 5, 2009, is AFFIRMED.
Kevin Brown, Brooklyn, NY, pro se.
John C. Couzens, Jr., Wilson, Bave, Conboy, Cozza Couzens, P.C., White Plains, NY, for Appellee.
SUMMARY ORDER
Pro se plaintiff Kevin Brown appeals from the denial of his motion for relief from a jury verdict in favor of defendant on Brown's claims under 42 U.S.C. § 1983 and state battery law arising from a medical procedure allegedly performed without Brown's consent. See Fed.R.Civ.P. 60. We review the denial of a Rule 60 motion for abuse of discretion. See Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009). In applying this standard, we assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
The district court denied Brown's motion as untimely filed after construing it to seek relief from judgment on the ground of "mistake, inadvertence, surprise, or excusable neglect" pursuant to Rule 60(b)(1). While Rule 60 generally requires that a motion for relief be made "within a reasonable time," Fed.R.Civ.P. 60(c)(1), motions under Rule 60(b)(1) are among those subject to a more specific time limit of one year from the entry of judgment. This time limit is "`absolute.'" Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting 12 James Wm. Moore, Moore'a Federal Practice § 60.65[2][a], at 60-200 (3d ed. 1997)). Brown filed his motion more than fourteen months after the entry of judgment, well past the one-year dead-line. Accordingly, we detect no error, let alone abuse of discretion, in the district court's denial of the motion as untimely filed.
Nor would remand be warranted were we to construe Brown's motion to rely on Rule 60(b)(6), a catchall provision allowing relief from judgment for "any other reason." While Rule 60(b)(6) does not impose a one-year time limit, Brown failed to demonstrate the "extraordinary circumstances" required to justify relief under that provision. Grace v. Bank Le un/i Trust Co. of N.Y., 443 F.3d 180, 190 n. 8 (2d Cir. 2006) (internal quotation marks omitted). Indeed, the essence of Brown's argument is simply that the jury reached the wrong result. See Shrader v. CSX Tramp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) ("[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided."); Matarese v. LeFevre, 801 F.2d 98, 106-07 (2d Cir. 1986) (holding that, while relief is appropriate in "extraordinary circumstances" or "where the judgment may work an extreme and undue hardship," Rule 60(b)(6) "may not be used as a substitute for appeal").
We decline to reach Brown's argument, made for the first time in his reply brief, that he never received notice of the judgment against him. See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (observing that this court ordinarily does not consider issues raised lor first time in reply brief); Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996) (declining to consider argument raised for first time in pro se litigant's reply brief).
In sum, we conclude that the district court acted within its discretion in denying Brown's motion for reconsideration.
We have considered Brown's other arguments on appeal and conclude that they are without merit. Accordingly, the order of the district court denying Brown's Rule 60 motion is AFFIRMED.