Filed: Nov. 13, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-1814 _ UNITED STATES OF AMERICA, v. MAYANK MISHRA *DAPHNE PATTISON SILVERMAN, Appellant *(Pursuant to Fed. R. App. P. 12(a)) _ On Appeal from the United States District Court for the Western District of Pennsylvania (No. 2:12-cr-00092) District Judge: Honorable Cathy Bissoon _ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 29, 2019 Before: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges. (Opinion
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-1814 _ UNITED STATES OF AMERICA, v. MAYANK MISHRA *DAPHNE PATTISON SILVERMAN, Appellant *(Pursuant to Fed. R. App. P. 12(a)) _ On Appeal from the United States District Court for the Western District of Pennsylvania (No. 2:12-cr-00092) District Judge: Honorable Cathy Bissoon _ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 29, 2019 Before: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges. (Opinion f..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1814
_____________
UNITED STATES OF AMERICA,
v.
MAYANK MISHRA
*DAPHNE PATTISON SILVERMAN,
Appellant
*(Pursuant to Fed. R. App. P. 12(a))
_______________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 2:12-cr-00092)
District Judge: Honorable Cathy Bissoon
_______________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 29, 2019
Before: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges.
(Opinion filed: November 13, 2019)
____________
OPINION*
____________
PHIPPS, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
As an attorney appearing pro hac vice in the Western District of Pennsylvania to
represent a defendant at a criminal trial, Daphne Pattison Silverman twice ran afoul of
court orders. She violated a pre-trial order, resulting in a finding of contempt and a
sanction of $1,000, payable immediately. After Silverman did not comply with the order
to pay that fine for five weeks, the Government moved for additional sanctions, and on
May 18, 2016, the District Court revoked her pro hac vice admission. The District Court
had jurisdiction to enter the contempt and revocation orders, which were issued in
connection with a criminal proceeding, see 18 U.S.C. § 3231, and Silverman did not
appeal either order.
Nearly three years later, on March 28, 2019, Silverman moved pursuant to Civil
Rule 60(b)(6) for relief from the order revoking her pro hac vice admission. The District
Court denied that motion, and Silverman now appeals that order. The denial of a Civil
Rule 60(b)(6) motion seeking relief from a final order is itself a final order over which
this Court has appellate jurisdiction. See 28 U.S.C. § 1291; Penn W. Assocs. v. Cohen,
371 F.3d 118, 123-24 (3d Cir. 2004). The abuse-of-discretion standard governs appellate
review of a denial of a Civil Rule 60 motion. See Cox v. Horn,
757 F.3d 113, 118 (3d Cir.
2014).
Under Civil Rule 60, relief from judgment is permitted in six instances. See Fed.
R. Civ. P. 60(b)(1)-(6); see generally Gonzalez v. Crosby,
545 U.S. 524, 528 (2005)
(“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances including fraud, mistake, and newly
discovered evidence.”). To seek relief based on the first three scenarios, such a motion
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must be filed within one year of the judgment. See Fed. R. Civ. P. 60(c)(1); see also
id.
60(b)(1)-(3). For the remaining scenarios, a motion, such as one under Rule 60(b)(6),
must be filed within “a reasonable time,” which may be more or less than one year.
Id.
60(c)(1); see also
id. 60(b)(4)-(6); Stradley v. Cortez,
518 F.2d 488, 493 (3d Cir. 1975)
(explaining that the phrase ‘a reasonable time’ “is not intended as a means by which the
time limitations of 60(b)(1-3) may be circumvented.”). The initial (and only) question
addressed here is whether the two-year-and-ten-month period between the District
Court’s revocation order and Silverman’s Rule 60(b)(6) motion was a reasonable time.
It was not. As a reference point, Silverman did not appeal or otherwise contest the
revocation order before moving for Rule 60(b)(6) relief. Instead, it was well after the
revocation order that Silverman moved for the extraordinary remedy of relief from
judgment. See generally Satterfield v. Dist. Att’y Phila.,
872 F.3d 152, 158 (3d Cir. 2017)
(explaining that relief under Rule 60(b)(6) is appropriate only in “extraordinary
circumstances where, without such relief, an extreme and unexpected hardship would
occur” (quoting
Cox, 757 F.3d at 120)); Bohus v. Beloff,
950 F.2d 919, 930 (3d Cir. 1991)
(explaining that Rule 60 relief from judgment should be granted only “where
extraordinary justifying circumstances are present” (quoting Plisco v. Union R.R. Co.,
379 F.2d 15, 16 (3d Cir. 1967))). Silverman presents no persuasive explanation for the
delay. She references her bout with cancer, which could bear on the reasonableness of
the timing for a Rule 60 motion. But to justify a delay of this length, it would require
greater detail of exceptional circumstances than Silverman provides, especially since she
was represented by counsel regarding the revocation of her pro hac vice status. It may be
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that Silverman’s Rule 60 motion was prompted by her recent realization that revocation
of pro hac vice admission in one district would negatively affect her ability to gain
admission in other districts. But that too is not a basis for holding that nearly three years
constitutes a reasonable time for filing a motion under Rule 60 in these circumstances.
See generally Moolenaar v. Gov’t of V.I.,
822 F.2d 1342, 1344 (3d Cir. 1987) (holding
that a Rule 60(b)(6) motion filed two years after the judgment was “not made within a
reasonable time”).
For these reasons, the District Court did not abuse its discretion in denying
Silverman’s Rule 60(b)(6) motion, and we will affirm that ruling.
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