Mosquera v. Graham et al, No. 9:2019cv00442 - Document 24 (N.D.N.Y 2020)

Court Description: DECISION AND ORDER that plaintiff's motion to vacate (Dkt. No. 18 ) is DENIED. Plaintiff's motion (Dkt. No. 22 ) is DENIED, as moot. Signed by Chief Judge Glenn T. Suddaby on 4/21/2020. (Copy served upon Plaintiff via regular mail). (sal)

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Mosquera v. Graham et al Doc. 24 Case 9:19-cv-00442-GTS-ATB Document 24 Filed 04/21/20 Page 1 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JUAN R. MOSQUERA a/k/a Juan Bilan and Juan R. Mosquera Bilan, Plaintiff, v. 9:19-CV-0442 (GTS/ATB) HAROLD D. GRAHAM, et al., Defendants. APPEARANCES: JUAN R. MOSQUERO 12-A-1601 Plaintiff, pro se Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562 GLENN T. SUDDABY Chief United States District Judge DECISION AND ORDER I. INTRODUCTION On August 27, 2019, the Clerk of Court entered a Judgment dismissing this action in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or failure to state a claim upon which relief may be granted. See Dkt. No. 15. On September 10, 2019, Plaintiff filed a Notice of Appeal. Dkt. No. 16. On September 30, 2019, Plaintiff filed a Motion to Vacate the Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Dkt. No. 18. On March 11, 2020, the Second Circuit dism issed the appeal 1 Dockets.Justia.com Case 9:19-cv-00442-GTS-ATB Document 24 Filed 04/21/20 Page 2 of 3 because it "lacks an arguable basis either in law or in fact." See Mosquera v. Graham, et al. No. 19-2973, Dkt. No. 75 (2d Cir. 2020). II. MOTION TO VACATE Rule 60(b) of the Federal Rules of Civil Procedure sets forth six grounds upon which relief from a judgment or order may be granted: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; or (6) for any other reason that justifies relief. Fed. R. Civ. P. 60(b). "Rule 60(b) was intended to preserve the delicate balance between the sanctity of final judgments and the incessant command of the court's conscience that justice be done in light of all the facts." Esposito v. New York, No. 07–CV–11612, 2010 W L 4261396, at *1 (S.D.N.Y. Oct. 25, 2010) (citation omitted). Rule 60(b) of the Federal Rules of Civil Procedure provides "extraordinary judicial relief" which should be granted "only upon a showing of exceptional circumstances." Barton v. Troy Annual Conf., No. 09–CV–0063, 2011 W L 5325623, at *2 (N.D.N.Y. Nov. 3, 2011) (McAvoy, J.). It may not be used as a substitute for an appeal, and a claim based on legal error alone is inadequate. United Student Aid Funds, Inc. v. Espinosa, ––– U.S. ––––, 130 S.Ct. 1367, 1377 (2010); United Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir. 2009) (citing Matarese v. LeFevre, 801 F.2d 98, 107 (2d Cir.1986) ). The decision whether to afford relief rests with the "sound discretion of the district court." Garcia v. Myears, No. 13-CV-0965, 2015 WL 1015425, at *2 (W.D.N.Y. March 9, 2015). "Generally, courts require that the evidence in support of the motion to vacate a final judgment be 'highly convincing,' that a party show good cause for the failure to act sooner, 2 Case 9:19-cv-00442-GTS-ATB Document 24 Filed 04/21/20 Page 3 of 3 and that no undue hardship be imposed on other parties." Kotlicky v. U.S. Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987) (citation and internal citations om itted). Here, Plaintiff has failed to satisfy the basic requirements for Rule 60(b) relief. Plaintiff's motion is nothing more than an attempt to relitigate the merits of his original claims. Therefore, the Court will not now entertain Plaintiff's arguments for a second time. Simply stated, Plaintiff may not use this motion as an opportunity to reargue his original points. Having thoroughly reviewed Plaintiff's arguments in support of his motion to vacate, the Court finds that Plaintiff presents no basis upon which the Court would vacate the August 2019 Judgment. Thus, upon due consideration, Plaintiff has not established that relief under Rule 60(b) is warranted, and the motion to vacate is denied in its entirety.1 III. CONCLUSION WHEREFORE, it is hereby ORDERED that Plaintiff's motion to vacate (Dkt. No. 18) is DENIED; and it is further ORDERED that Plaintiff's motion (Dkt. No. 22) is DENIED, as moot; and it is further ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff. IT IS SO ORDERED. Dated: April 21, 2020 Syracuse, New York 1 Plaintiff's motion seeking permission to attach an exhibit to his amended pleading (Dkt. No. 22) is denied, as moot. 3

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