STEVEN L. TISCIONE, Magistrate Judge.
Plaintiff Jacqueline Silver, appearing pro se, brings this Motion for Relief from a Judgment or Order. She seeks relief from the District Court's Order dated March 27, 2018 that dismissed her § 1983 civil rights action. See ECF No. 92 ("Motion for Relief from a Judgment or Order" or "Rule 60(b) Motion"); Order Adopting Report and Recommendation ("March 27 Order"), ECF No. 89. In the underlying case, Silver made claims of unlawful detention and use of excessive force by New York City Police Department ("NYPD") officers. See March 27 Order. This Court finds that Silver's Rule 60(b) Motion was untimely filed and, in any event, fails on its merits. Therefore, this Court recommends that the Rule 60(b) Motion be DENIED.
On May 27, 2015, Silver filed a Complaint alleging that NYPD officers unlawfully detained her and unlawfully used excessive force against her. Complaint ("Compl."), ECF No. 1, ¶ IV. She alleged that, on May 27, 2012, officers approached her while she was sitting in her car outside of her parents' house in Bayside, Queens and asked her for identification. Id. Silver alleged that police were alerted to her presence after her sister called them to complain that Silver was trespassing on the premises. Id. Silver was unable to find an identification card. Id. She alleged that police officers, at some point, handcuffed her and caused her to fall to the ground. Id. Silver alleged that she was then transported by ambulance to a hospital where she was admitted and detained against her will. Id. She alleged that she suffered "bruises and contusions" from the fall and "humiliation and emotional distress" from the incident. Id.
Silver initially named as defendants the City of New York, NYPD Bayside, the 111
Following amendment, the City filed a Motion to Dismiss pursuant to Rule 12(b)(6). See Mot. Dismiss, ECF No. 36. The City argued that Silver's claims were barred by the applicable statute of limitations and should, therefore, be dismissed. See Mem. Supp. Mot. Dismiss, ECF No. 39, at 3.
The District Court found that Silver was entitled to limited discovery as to whether her claims relate back under New York Civil Practice Law and Rules ("N.Y. C.P.L.R.") § 1024. See Order Referring Mot. Dismiss ("March 31 Order"), ECF No. 50, at 9-10. Even though the Court found that Silver's claims do not relate back under Rule 15(c)(1)(C) of the Federal Rules of Civil Procedure or N.Y. C.P.L.R. § 203, the Court found that Silver's claims might relate back under N.Y. C.P.L.R. § 1024 if Silver could show that she exercised "due diligence" by making "timely efforts to identify the correct party before the statute of limitations expired." March 31 Order at 11 (citation omitted). The Court found that Silver's previous submissions were made in "general terms" and therefore unable to satisfy the "exacting standard" under the Rules to establish "due diligence." March 31 Order at 11. Yet, "in light of the fact" that Silver had "persistently maintained that she acted diligently before the expiration of the statute of limitations," the District Court found that Silver was "entitled to limited discovery on this issue." March 31 Order at 11. (citations omitted). The District Court ordered limited discovery to occur "on or before May 27, 2015[,]" thus giving Silver approximately two months to marshal evidence of her diligence. March 31 Order at 12. The Court granted several extensions of time in which to provide discovery. See ECF Nos. 54, 76, 85.
Following the period of limited discovery, on March 12, 2018, this Court recommended dismissing Silver's amended complaint because she had failed to show "due diligence" and therefore failed to meet her burden of showing that her claims relate back under N.Y. C.P.L.R. § 1024. See R. & R., ECF No. 87, at 3. This Court recommended dismissal because, without the benefit of the relation back doctrine, the three-year statute of limitations period barred Silver's claims. See R. & R. at 3. This Court characterized the lengthy period of limited discovery as follows:
R. & R. at 2-3. Therefore, because Silver "did not exercise diligence in identifying Defendants before May 27, 2015," this Court recommended "dismissing her complaint as time-barred." R. & R. at 3. On March 27, 2018, the District Court adopted this Court's recommendation and dismissed the complaint. See March 27 Order.
On April 2, 2019, Silver filed a Motion seeking relief from the Court's March 27, 2018 Order due to "excusable neglect" in failing to provide due diligence pursuant to court orders. See ECF No. 92 ("Pl.'s Mot."), at 2-3. Silver states that she had criminal charges pending against her in "Queens Criminal court." According to Silver, her court-appointed counsel advised her "not to submit any documents into the United States District Court because it might incriminate [her] in the criminal action. This was back in November 2017." Pl.'s Mot. at 3. Silver claims that her Motion was not submitted until the present moment because "[t]his was the earliest time that [she] could've reasonably submitted this motion." Pl.'s Mot. at 6.
Silver states that she is seeking relief pursuant to "Rule 60(B)(1)" and "Rule 60(B)(1)(6) of the Federal Rules of Civil Procedure." Pl.'s Mot. at 2. The latter statutory provision does not exist. See Fed. R. Civ. P. 60 et seq. But given our standard of review for pro se submissions— as in, "to raise the strongest arguments that they suggest," Joseph v. Conway, 567 F. App'x 56, 60 n.2 (2d Cir. 2014)—this Court construes the citations as referring to Rule 60(b)(1)— providing relief in circumstances involving, in pertinent part, "excusable neglect"—and Rule 60(b)(6)—the provision providing relief for "any other reason that justifies relief."
To the extent that Silver seeks relief under Rule 60(b)(1), her Motion is untimely. As set forth in detail below, a (b)(1) motion must be brought within one year of the order or judgment from which the petitioner seeks relief. Under Rule 60(b)(6), a petitioner need only bring the motion within a "reasonable" period of time. This Court assumes, without deciding, that the Motion was brought within a reasonable period. Nevertheless, Silver's claim fails on its merits.
Rule 60(b)(1) provides relief from an order or judgment that is premised on a mistake, inadvertence, surprise, or excusable neglect. Generally, Rule 60(b)(1) "has been invoked to remedy the mistake of a party or his representatives." Stefanopoulos v. City of New York, 299 F. App'x 49, 50 (2d Cir. 2008) (citation omitted).
But at least one court has granted relief to a plaintiff claiming that he or she failed to prosecute a civil case based on advice from his or her attorney in a related criminal matter. In Montae v. American Airlines, 757 F.Supp.2d 47 (D. Mass. 2010), the court granted a motion for relief from judgment by a pro se plaintiff alleging unlawful arrest and other civil rights claims against police officers. The plaintiff alleged that "the public defender assigned to her criminal case had advised her to let the suit `drop' until the criminal charges were resolved." Id. at 56. Additionally, the plaintiff claimed that she was suffering from physical and psychological trauma due to family illness and the underlying arrest that served as the basis of the lawsuit. Id. The Court found that the plaintiff had met her burden of showing excusable neglect based on the likelihood that the plaintiff's "actions were simply the product of her ignorance of the judicial system and the poor advice of her public defender." Id. The court found that the justification offered "constitute[d] the kind of `extraordinary circumstances' envisioned by Rule 60(b)." Id.
Nevertheless, although Silver raises a claim under Rule 60(b)(1), her claim is untimely because it was not filed within the one-year limitations period.
Silver's Motion is dated March 27, 2019. See Pl.'s Mot. at 1. A photocopied image included with the Motion indicates that the Motion was sent by postal mail on March 28, 2019. Id. at 13-14. The Pro Se Office of the Clerk of Court did not receive the Motion until five days later on April 2, 2019. See id. at 1 (indicating via stamp that the Motion was received on April 2, 2019).
Generally, when a litigant submits a filing by postal mail, the filing date is the date on which the motion was received, not the date on which the motion was sent. See Wight v. BankAmerica Corp., 219 F.3d 79, 85 (2d Cir. 2000) (citation omitted); Fed. R. Civ. P. 5(d)(2)(A) ("A paper not filed electronically is filed by delivering it . . . to the clerk[.]").
Given the structure of Rule 60(b) and Second Circuit caselaw, our analysis should end after we deny relief under Rule 60(b)(1). That is because subsection (6) is a residual provision that only applies if the proffered reasoning does not fit within one of the other subsections of Rule 60(b). See Fed. R. Civ. P. 60(b)(6) (stating that it applies to "any other reason" not falling within the other subsections of the Rule); see also Pioneer Inv. Servs., 507 U.S. at 393 (stating, in dicta, that the provisions of 60(b)(1) and (b)(6) are "mutually exclusive"). As the "Second Circuit has instructed, a `court may treat a motion to vacate a prior judgment as having been made under 60(b)(6) only if the other, more specific grounds for relief encompassed by the rule are inapplicable.'" Azkour, 2017 WL 1609125, at *4 (quoting Maduakolam v. Columbia Univ., 866 F.2d 53, 55 (2d Cir. 1989)); see also United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 391-92 (2d Cir. 2001). Nevertheless, despite finding that Rule 60(b)(1) applies to Silver's claim, this Court addresses Rule 60(b)(6) based on the caselaw stating that claims of attorney negligence or misadvice are properly analyzed under both subsections (b)(1) and (b)(6). See, e.g., E. Savs. Bank, FSB v. Springer, No. 11-CV-4431 (ERK), 2015 WL 13735520, at *5 (E.D.N.Y. Jan. 30, 2015); DeMarco v. Hartford Life & Accident Ins., No. 12-CV-4313 (BMC), 2014 WL 3490481, at *4 (E.D.N.Y. July 11, 2014); FirstStorm Partners 2, LLC v. Vassel, No. 10-CV-2356 (KAM) (RER), 2013 WL 654396, at *15 (E.D.N.Y. Feb. 21, 2013) (citations omitted); Alvarado v. Manhattan Worker Career Ctr., No. 01-CV-9288 (CBM), 2003 WL 22462032, at *2 (S.D.N.Y. Oct. 30, 2003).
Silver claims that she failed to comply with the Court's orders because she was reasonably acting under the direction of legal counsel.
Silver alleges that, "in November 2017," counsel advised her to "hold off" in providing discovery—but this alleged advice was given after the last court-ordered deadline for production in October 2017 and many months after the period of limited discovery began in March 2017. During the discovery period, this Court held four in-person hearings, each of which occurred prior to November 2017. See ECF Nos. 52, 62, 67, 76. After several extensions of time, the District Court ordered Silver to provide evidence of diligence by October 27, 2017. See Op. & Order, ECF No. 85 (dated Oct. 6, 2017). Silver did not provide evidence of diligence by the final court-ordered date—nor has she provided such evidence to date. Silver's claim fails for the reason that she completely neglects to explain how counsel hindered her ability to provide evidence during the discovery period that concluded prior to the alleged advice. Silver, thus, fails show that the advice given to her in November 2017 had any effect on her past inaction.
Silver has failed to show that she is entitled to relief from the District Court's Order dismissing Silver's case for failing to provide evidence of diligence by the ordered deadlines.
Silver filed her Rule 60(b) Motion outside of the one-year limitations period. Silver also failed to meet her burden of showing entitlement to relief under Rule 60(b). Accordingly, this Court recommends that her Motion for Relief from an Order or Judgment be DENIED. Defendants' counsel shall immediately forward a copy of this Report and Recommendation to Plaintiff via return receipt and file proof of delivery on ECF.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega, Inc., 338 F. App'x 24, 26 (2d Cir. 2009); Tavarez v. Berryhill, No. 15-CV-5141 (CS) (LMS), 2019 WL 1965832, at *30 (S.D.N.Y. May 1, 2019); see also Thomas v. Arn, 474 U.S. 140 (1985).
