Opinion
99-CV-6173 CJS
September 5, 2003
Elisabet Espaillat Garcia, Pro Se, Wellington, FL, for the Plaintiff
Christopher D. Thomas, Esq., Nixon Peabody LLP, New York, for the Defendant
DECISION and ORDER
INTRODUCTION
Plaintiff Elisabet Espaillat brought a diversity action arising from a cup of spilt coffee on a Continental Express flight from Newark, New Jersey to Rochester, New York. Now before the Court is plaintiff pro se's motion (# 65) for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). For the reasons set forth below, plaintiff's motions is denied.
BACKGROUND
The detailed background of this case was previously set forth in the Court's March 26, 2001 decision and order, and will not be repeated here. The following are facts significant to the issue now before the Court.
Plaintiff Elisabet Espaillat ("plaintiff"), filed a complaint alleging negligence as a result of burns she suffered when a hot cup of coffee spilled on to her lap during a Continental Express flight from Newark, New Jersey to Rochester, New York on April 26, 1999. Plaintiff alleges that the coffee was served too hot, as a result of Continental Express' ("defendant") negligence. At the time of her initial suit and trial, plaintiff was represented by counsel.
On April 2, 2001, a jury trial commenced. On April 6, 2001, the jury returned a verdict for defendant, finding no cause of action. The Court entered a judgment for defendant on April 16, 2001. On April 25, 2001, plaintiff filed a motion for a new trial on the ground that the verdict was against the weight of the evidence, but did not raise the ground alleged in the present motion. The Court denied plaintiff's application for a new trial by order dated July 25, 2001.
Plaintiff, acting pro se, appealed the judgment and the Court's order denying her motion for a new trial to the Court of Appeals for the Second Circuit. In her brief on appeal, plaintiff stated "at the end of the trial, one of the jury member [sic] (can't remember his name, but he was the only one that needed a hearing aid), approached me and make [sic] the following remark in front of my sister, `Hispanic people, trying to make easy money out of nothing.'" Pl.'s Appellant Br. ¶ 3. On April 8, 2002, the Court of Appeals affirmed this Court's judgment by summary order and held that: (1) the denial of a motion for a new trial on the ground that the verdict was against the weight of the evidence was not subject to appellate review; (2) ineffective assistance of counsel was not a proper ground for relief in a civil matter; and (3) claims of misconduct and racial bias within the jury should be raised through a motion for relief from judgment in the federal district court. Espaillat v. Continental Express, No. 01-7948, 2002 WL 530869 (2d Cir. Apr. 8, 2002)
Plaintiff was represented by legal counsel until the time of her appeal.
Plaintiff's appeal was argued before the Court of Appeals on April 2, 2002.
On April 18, 2003, plaintiff, still proceeding pro se, filed the motion now pending before the Court for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). In her application, plaintiff contends that "racial prejudism [sic] contributed to the decision of the jury." Espaillat Aff. ¶ 4. Specifically, plaintiff alleges that "after the jury returned a veredict [sic] of no cause of action against me, I was discussion [sic] with my sister the veredict [sic] of the jury. At that time, one of the members of the jury (the gentlemen that had a hearing aide and wore glasses) as he went by me, looking at me, directly to my eyes, he stated: `Hispanic people, wanting to have easy money.'" Id. Further, plaintiff states "[m]y sister and I immediately apprached [sic] my attorney and informed her of what we heard, however, my attorney did not provided [sic] any legal advise [sic]." Id.
Plaintiff does not specify which subdivision or subparagraph of the Rule applies in her situation.
Silvia Moreta ("Moreta"), plaintiff's sister, submitted an affidavit in support of plaintiff's current application. In her affidavit, Moreta states "[a]t that time, members of the jury panel came out of the jury room, and as they went by I heard one of the jurors, an older individual, state to his fellow jurors: `those Hispanics are always looking for easy money.'" Moreta Aff. ¶ 4.
LEGAL STANDARDS
Rule 60(b) provides in pertinent part:
[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud. . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
FED. R. Civ. P. 60(b). "The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Id. Moreover, a motion to vacate a judgment under Rule 60(b) "is addressed to the sound discretion of the trial court, whose disposition of the motion will not be disturbed on appeal absent an abuse of that discretion." National Petrochemical Co. v. M/T Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991). "Properly applied, the rule preserves a balance between serving the ends of justice and ensuring that litigation reaches an end within a finite period of time." House v. Secretary of Health Human Servs., 688 F.2d 7, 9 (2d Cir. 1982); see also Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) ("properly applied, Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments").
ANALYSIS
Plaintiff's motion for relief from judgment is clearly based upon the contention that racial prejudice contributed to the jury's decision. While the Court condemns racial bias as a basis for a jury verdict, the Court is bound by the applicable laws and rules in considering plaintiff's application. In that regard, Federal Rule of Civil Procedure 60(b) sets forth procedures and limitations that must be properly followed to ensure fairness to all parties involved. Plaintiff does not state the specific portion of Rule 60(b) under which she is proceeding. Although Rule 60(b) lists six bases permitting the Court to "relieve a party . . . from a final judgment, order, or proceeding," only two of those are potentially applicable here: subparagraphs (1) and (6) of subdivision (b). Fed.R.Civ.P. 60(b). Subparagraphs (2) through (5) are inapplicable here. Subparagraph (2) is inapplicable because there is no claim of newly discovered evidence. The juror statement was known at the time that plaintiff moved for a new trial under Rule 59(b) and therefore, cannot now be construed as new evidence and raised in a Rule 60(b) motion. Subparagraph (3) is inapplicable because there is no claim of fraud or misrepresentation. Subparagraph (4) is inapplicable because the judgment in question is not void. Finally, subparagraph (5) is inapplicable because the judgment could not have been satisfied, nor has it been reversed or vacated. Therefore, plaintiff's application must be made pursuant to either subparagraph (1) or (6). Since Rule 60(b)(6) cannot be invoked if the reason asserted for relief is encompassed in subparagraph (1), a threshold question is whether plaintiff's motion properly falls under subparagraph (1) or (6). Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986).
Under a Rule 60(b)(6) motion, the movant must show "exceptional circumstances" or "extreme hardship." United States v. Cirami, 563 F.2d 26, 30 (2d Cir. 1977). Here, plaintiff has not alleged any exceptional circumstances or extreme hardship, which would allow the Court to consider her application under subparagraph (6). Plaintiff only alleges that her attorney `did not provided [sic] any legal advise [sic]." Espaillat Aff. ¶ 4. In the Second Circuit, it is well settled that an attorney's neglect of a case will not provide the basis for a Rule 60(b)(6) motion. Id. Further, even gross negligence is not a basis for relief under Rule 60(b)(6) unless it is "explained by exceptional circumstances and the movant makes a showing of client diligence in the face of the attorney's negligence." Cobos v. Adelphi University, 179 F.R.D. 381 (E.D.N.Y. 1998). Here, again, plaintiff has only alleged that her attorney did not provide her with any legal advice.
Moreover, although plaintiff states that it was not until she appealed the jury's decision that she "learned that racial prejudism [sic] is not tolerated in the court system, and is a legal cause to invalidate the veredict [sic] of the jury", Espaillat Aff. ¶ 4, she has not made a showing of due diligence on her part. While the Court of Appeals, in their April 8, 2002, summary order, held that "claims of misconduct and racial bias within the jury should be raised through a Rule 60(b) motion in the district court" plaintiff did not file her Rule 60(b) motion until April 18, 2003. The Court finds this over one year delay by plaintiff in bringing a Rule 60(b) application is at odds with due diligence in the face of her counsel's alleged negligence.
In any event, since the information upon which plaintiff bases her motion was known to plaintiff and her counsel immediately after the verdict was entered prior to the time plaintiff's counsel made a motion for a new trial, the Court finds that plaintiff's motion should be considered as being under Rule (b)(1). See, e.g., Nemaizer, 793 F.2d at 62 ("[r]elief from counsel's error is normally sought pursuant to 60(b)(1) on the theory that such error constitutes mistake, inadvertence or excusable neglect"). However, because plaintiff's motion is procedurally barred, her application must be denied.
That is, as previously stated, a motion for relief from judgment "shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken." FED. R. Civ. P. 60(b). The Supreme Court in Ackermann v. United States, 340 U.S. 193, 197 (1950), held that a motion for relief pursuant to Rule 60(b)(1) "must, by the rule's terms, be made not more than one year after the judgment was entered," thereby suggesting that the Court may not, in any instance, grant motions that are filed after the one-year period. Here, plaintiff seeks relief from the Court's judgment, entered on April 16, 2001, a full two years before plaintiff filed the pending motion for relief from judgment on April 18, 2003. Because a pending appeal does not toll the running of the one-year period for making a motion under Rule 60(b)(1), the fact that plaintiff appealed to Court of Appeals for the Second Circuit during this time period does not affect the calculation of the one-year time period. See King v. First American Investigations, Inc., 287 F.3d 91, 94 (2d Cir. 2002). Since plaintiff failed to timely file her motion within the one-year time period, her application is procedurally barred and is, therefore, denied.
Even if the Court were to find that plaintiff's application was timely filed, her application would fail on the merits. Plaintiff's argument for relief from judgment is essentially an allegation that her counsel did not provide her with advice or act properly with the information which she provided to her. However, the Second Circuit has "consistently declined to relieve a client under subsection (1) of the burdens of a final judgment entered against [plaintiff] due to the mistake or omission of [her] attorney by reason of the latter's ignorance of the law or other rules of the court, or [the attorney's] inability to efficiently manage [her] caseload." Nemaizer, 793 F.2d at 62 (internal citations and quotations omitted); see also United States v. Cirami, 535 F.2d 736, 739 (2d Cir. 1976). Here, plaintiff clearly states that she immediately approached her attorney and informed her of the alleged prejudicial statement by the juror. Subsequent to the disclosure of this information, plaintiff's counsel filed a motion pursuant to Federal Rule of Civil Procedure 59 for a new trial, but did not include any such argument regarding the alleged prejudicial statement by the juror. The failure on behalf of plaintiff's prior counsel to raise the argument cannot now serve as the basis for relief. See Nemaizer, 793 F.2d at 62-63 ("even if responsibility rests with plaintiff's prior counsel, Rule 60(b)(1) does not provide an avenue for relief . . . an attorney's actions, whether arising from neglect, carelessness or inexperience, are attributable to the client, who has a duty to protect his own interests by taking such legal steps as are necessary").
CONCLUSION
For the above stated reasons, plaintiff's motion (# 65) for relief from judgment, pursuant to Federal Rule of Civil Procedure 60(b), is denied.
SO ORDERED.