Opinion
81-CV-1362 (HGM/GJD)
August 22, 2001
Michael A. Hurley, Plaintiff, Pro Se.
James Singletary, Plaintiff, Pro Se.
Steven H. Schwartz, Office of Attorney General, Assistant Attorney General, for defendants.
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
Currently before the court is a motion by plaintiff, Michael X. Hurley, to vacate a judgment that dismissed the instant action for failure to prosecute. See Dkt. No. 56. Defendant opposes the Hurley's motion claiming that plaintiff has not articulated any new excuse for his failure to prosecute. For the following reasons, the court denies plaintiff's motion to vacate.
PROCEDURAL HISTORY
Upon notice to the parties, this case was called before the court's September 10, 1999, Dismissal Calendar. In response to that notice, plaintiff Hurley sent a letter to the court, dated June 5, 1999, in which he stated why his case should not be dismissed for failure to prosecute. Plaintiff Singletary did not respond to the Notice and did not appear in person. On September 10, 1999, counsel for defendants appeared at the Dismissal Calendar call and moved to dismiss the complaint for failure to prosecute. After considering defendants' motion, plaintiff Hurley's written statement and the lack of response from plaintiff Singletary, the court dismissed the complaint with prejudice for failure to prosecute. Judgment was entered in favor of defendants on January 7, 2000. On January 13, 2000, plaintiff Hurley moved to vacate the court's January 7, 2000, Judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure. Plaintiff Singletary has not joined the motion.
In his letter, plaintiff Hurley admitted that "there has not been any progressive and effective prosecution in the above matter." The complaint was filed on December 18, 1981. He also stated that "from an ethical and moral stand point of view, I could not in acceptable and good conscience proceed with the prosecution of this important case without the involvement, presence, and assistance of Mr. James Singletary," and indicated that he does not know where plaintiff Singletary is now located and has not communicated with him in years. Finally, plaintiff indicated that he does not even know what this case is about since he no longer has a copy of the complaint.
According to defendants, Singletary was released from prison to parole supervision in 1979, and has subsequently been released from parole supervision. Singletary's current location is unknown.
DISCUSSION
Plaintiff brings his motion to vacate pursuant to Fed.R.Civ.Proc. 60(b). This Rule provides that a district 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." Id.
It also requires that "[t]he motion shall be made within a reasonable time, and for reason . . . (1). . . not more than one year after the judgment . . . was entered or taken." Id. In this Circuit, "[s]ubpart (6) is properly invoked where there are extraordinary circumstances or where the judgment may work an extreme and undue hardship." DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994) (citations and internal quotation marks omitted). The Circuit has also held that subpart (6) "should be liberally construed when substantial justice will thus be served." LeBlanc V. Cleveland, 248 F.3d 95, 100 (2d Cir. 2001) (citations and internal quotation marks omitted).
In this case, plaintiff failed to offer any reason for this court to vacate its prior judgment. In fact, Hurley's only claim is that he objected to the potential dismissal of this action prior to entry of judgment. He does not offer any other compelling reason to vacate that was not previously considered in this court's January 7, 2000, Judgment. In light of the foregoing standard, the court finds that plaintiff failed to offer any extraordinary circumstances, or extreme and undue hardship that would justify vacating the January 7, 2000, Judgment. For these reasons, plaintiff's motion is denied.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that plaintiff's motion to vacate is DENIED. It is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order upon the parties by regular mail.