Opinion
No. 10-559-cv.
March 9, 2011.
Appeal from the United States District Court for the Northern District of New York (McAvoy, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Artan Serjanej, Serjanej Enterprises, LLC, Binghamton, N.Y., for Plaintiff-Appellant.
Dawn J. Lanouette (Leslie Prechtl Guy, on the brief), Hinman, Howard Kattell, LLP, Binghamton, N.Y., for Defendants-Appellees.
Present: AMALYA L. KEARSE, ROBERT D. SACK and ROBERT A. KATZMANN, Circuit Judges.
SUMMARY ORDER
Plaintiff-Appellant Earthley Taylor, Jr. appeals from the January 14, 2010 order of the United States District Court for the Northern District of New York (McAvoy, J.) denying plaintiffs motion for reconsideration of the district court's October 27, 2009, 2009 WL 3644208, grant of summary judgment to defendants. We assume the parties' familiarity with the facts and procedural history of the case.
We review the district court's denial of a motion for reconsideration for abuse of discretion. Lora v. O'Heaney, 602 F.3d 106, 111 (2d Cir. 2010). The underlying summary judgment decision of which plaintiff sought reconsideration provided alternative grounds for dismissing plaintiffs complaint, concluding that (1) the complaint was untimely and (2) plaintiffs claims failed on the merits. Because plaintiffs motion for reconsideration did not address the timeliness ground, which was a sufficient independent basis for the district court's decision, we conclude that the district court did not err in denying plaintiffs motion.
Plaintiff contends that we have jurisdiction to review the underlying grant of summary judgment, notwithstanding his failure to file a timely notice of appeal from that decision. See Fed.R.App.P. 4(a)(1)(A) (notice of appeal must be filed within thirty days of the entry of judgement or order appealed from). Although timely filing of a motion for reconsideration will toll the thirty-day period, it is undisputed that plaintiffs motion was untimely. See Lora, 602 F.3d at 111 ("An untimely motion for reconsideration is treated as a Rule 60(b) motion . . . [and] `[a]n appeal from an order denying a Rule 60(b) motion brings up for review only the denial of the motion and not the merits of the underlying judgment for errors that could have been asserted on direct appeal.'" (alteration in original) (quoting Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991))). In support of his jurisdictional argument, plaintiff relies on the "unique circumstances" doctrine, which has been expressly repudiated by the Supreme Court. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Accordingly, we lack jurisdiction over plaintiffs challenge to the underlying summary judgment decision.
Finally, plaintiff urges us to consider certain arguments, including his challenge to the un timeliness of his complaint, that are raised for the first time on appeal. "Although we may exercise discretion to consider waived arguments where necessary to avoid a manifest injustice," In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008), we conclude that the circumstances of this case do not warrant such an exercise of discretion. Accordingly, we decline to hear plaintiffs new arguments.
We have considered plaintiffs remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.