Opinion
97 Civ. 7406 (LBS).
December 17, 2001
OPINION
Plaintiff moves to reopen this case after it was dismissed without prejudice on August 24, 1998 by a magistrate judge. For the following reasons, the motion is denied.
I. Background
This action stems from plaintiff William Marcucci's ("Marcucci") January 1997 claim, originally brought in the Civil Court of the City of New York, for reimbursement of medical services allegedly provided to plaintiff on October 17, 1994. See Holly Affidavit, Exhibit 1, at 1. The defendant New York District Council of Carpenters Welfare Fund ("Welfare Fund") removed this action to federal court on October 6, 1997, arguing that the claim arose under and was preempted by the Employee Retirement income Security Act of 1974 ("ERISA"). 29 U.S.C. § 1002(1).
Plaintiff claims the medical services provided in 1994 are related to a 1981 incident involving a "defective scaffold" that resulted in plaintiff's total disability. See Plaintiff's Affidavit at 3. This injury should not be confused with an alleged 1997 incident where Marcucci was hit by a truck. See Marcucci Letter (dated April 6, 1998).
On March 24, 1998, the plaintiff, appearing pro se, advised Magistrate Judge Fox ("the Magistrate") that he wished to dismiss the action without prejudice. Defendant opposed the application and urged that the case be dismissed with prejudice. Marcucci claimed that because he was scheduled to undergo medical tests within the next 90 days, it would be both physically and economically difficult for him to pursue the litigation at that time. See Fox Opinion, August 20, 1998. The Magistrate granted Marcucci's application and entered a judgment of "dismissal of this action without prejudice." Id. However, the court did not explicitly grant leave to amend or supplement his complaint at some later date. Id.
Over three years after the dismissal of the original complaint, in the motion currently before this Court, plaintiff makes a motion to reopen the case and to amend the summons and complaint. In the new complaint, plaintiff seeks to add a defendant, New York City District Council of Carpenters Pension Fund ("Pension Fund"), and a cause of action for the Pension Fund's failure to pay plaintiff his disability pension benefits. Now, plaintiff alleges that he became totally disabled in 1981 and at that time filed an application with the Pension Fund for disability benefits. See Plaintiff's Reply Memorandum at 2. Plaintiff alleges that the Pension Fund never processed his application in 1981 and/or concealed the fact that plaintiff earned the requisite number of credits to obtain disability pension benefits. See Plaintiff's Affidavit at 3; Plaintiff's Memorandum at 2. At some point in 2001, plaintiff sent in what it calls an amended application for disability benefits — a document not before this Court — that the Pension Fund claims to have received on April 10, 2001. See Plaintiff's Reply Affidavit, Exhibit 2, at 1. In a June 22, 2001 letter to the plaintiff, the Pension Fund denied the application for disability pension benefits because (1) the application exceeded the 36 month allowable time frame in which to apply, and (2) Marcucci failed to earn the requisite number of vesting credits. See id. at 1-2. On July 6, 2001, Nelson M. Stern, Esq. ("Stern") appealed the Pension Fund's decision on behalf of Marcucci. See Reply Affidavit, Exhibit 3, at 1. In his letter of appeal, Stern stated that Marcucci filed an application over ten years ago and that Marcucci "earned the requisite number of credits and now has the documents to prove it." Id. To complicate matters, there is an October 26, 1986 letter from the Pension Fund to Marcucci telling him that his life insurance is extended because his "total disability has been approved." See Plaintiff's Reply Affidavit, Exhibit 1, at 1.
In the proposed amended complaint, plaintiff first calls this new defendant the New York City District Council of Carpenters Benefit Fund.See Supplemental Complaint (Proposed) at 1. In its reply papers, though, plaintiff substitutes "Pension Fund" for "Benefit Fund." It is assumed that these are the same entity, and this Court will refer to this proposed defendant as the "Pension Fund."
The relationship between the Pension Fund and Welfare Fund is unclear. In his Supplemental Complaint (Proposed), plaintiff alleges that the Pension Fund is administered by the defendant Welfare Fund. See Supplemental Complaint (Proposed) at 2. On the other hand, defendant denies any connection between the two entities. See Defendant's Memorandum at 5.
II. Discussion
As noted, the original complaint was dismissed without prejudice. See Fox Opinion, August 20, 1998. The Second Circuit has rejected the view that "without prejudice" means "with leave to amend." See Elfenbein v. Gulf Western Industries, Inc., 590 F.2d 445,448 (2d Cir. 1998). When a case is dismissed without prejudice, the action is terminated. However, a subsequent suit will not be barred by the legal doctrine of res judicata. See id. at 449. Thus, if plaintiff cannot reopen the case under Rule 60(b) and amend the summons and complaint under Rule 15(a), plaintiff is free to file another complaint in federal court. Fed.R.Civ.P. 60(b); Fed.R.Civ.P. 15(a).
Plaintiff confuses a motion to supplement the complaint under Rule 15(d), which he does pursue, and a motion to amend the complaint under Rule 15(a), which is the relevant provision. Supplementing the complaint is to be used when a party seeks to plead events "which have happened since the date of the pleading sought to be supplemented." Fed.R.Civ.P. 15(d). See also Flaherty v. Lang, 199 F.3d 607, 614 n. 3 (2d Cir. 1999). Here, the new events described in the amended complaint turn on an alleged application for disability benefits in 1981, thirteen years before this case's original 1994 injury and claim. Thus, Rule 15(a) is the more appropriate provision under which plaintiff should proceed.
The defendant also seeks to have this Court deny the motion to reopen the case on the ground that it would be futile to do so. See Defendant's Memorandum at 8-12. While this Court acknowledge's the force behind defendant's argument, those issues are more appropriately litigated if plaintiff chooses to file a new complaint.
Rule 60(b) allows relief from a judgment, including the dismissal of a complaint, for a number of reasons. Specifically, in this case, plaintiff could argue the case should be reopened because of (a) "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party," Rule 60(b)(3), (b) "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)," Rule 60(b)(2), or (c) "any other reason justifying relief from the operation of the judgment," Rule 60(b)(6). All motions must be made "within a reasonable time," and for reasons (a) or (b) "not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b).
Plaintiff only asserts the first reason stated here, but the facts of this case arguably would permit plaintiff to invoke the second and third grounds. In fact, defendant acknowledges these other avenues for dispute and argues against allowing plaintiff to continue under Rule 60(b)(2) or 60(b)(6). See Defendant's Memorandum at 3-4.
The one-year time limit prevents plaintiff from pursuing this motion under the first two provisions. See, e.g., Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (denying motion under 60(b)(3) filed three and one-half years after the dismissal); Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 701-02 (2d Cir. 1972) (denying motion under 60(b)(2) filed beyond the one-year time limit). Because this motion is made over three years after the dismissal of the complaint, plaintiff's opportunity to reopen the case has expired.
Motions brought pursuant to Rule 60(b)(6) — a catchall provision — must be filed "within a reasonable time." Fed.R.Civ.P. 60(b)(6). Relief under this rule "is appropriate only in cases presenting `extraordinary' circumstances." First Fidelity Bank, N.A. v. Gov't of Antigua Barbuda, 877 F.2d 189, 196 (2d Cir. 1989). Plaintiff has failed to allege any extraordinary circumstances. In 1998, three years ago, plaintiff claims that he could not continue the case because of surgery and a lack of funds with which to litigate the proceeding. Other than Marcucci's own statements to the Magistrate in 1998, there is no evidence that plaintiff underwent any extraordinary circumstances over the last three years that makes plaintiff's delay in moving to reopen this case reasonable. Regardless, courts have held that Rule 60(b)(6) should not be used "if there is any other reason justifying relief from the judgment," i.e., if relief is potentially available under provisions (1) through (5). See Maduakolam v. Columbia Univ., 866 F.2d 53, 55-56 (2d Cir. 1989); Warren v. Garvin, 1999 WL 494117, at *5-6 (S.D.N.Y. 1999). Here, there is potential relief under the other provisions, evidenced by the fact that plaintiff only pursues Rule 60(b)(3). Thus, plaintiff will not be permitted to reopen the case under Rule 60(b)(6).
III. Conclusion
For the foregoing reasons, plaintiff's motion to reopen the case and to amend the summons and complaint is denied. Plaintiff is not precluded from filing a new complaint in federal district court.
SO ORDERED.