Nunez v. Fraser
- Laura Swain
- 1:23-cv-00625
- U.S. District Court · Southern District of New York
- 7
In Nunez v. Fraser, Judge Swain denied Nunez’s motions to undo earlier orders, reopen Nunez II, and extend his appeal deadline.
Javier Nunez’s ability to seek relief from the dismissals and filing restriction, and his ability to proceed without paying filing fees in an appeal from this order.
What happened
In Nunez v. Fraser, Javier Nunez, who was representing himself, asked the court to undo the dismissal of his earlier case, remove the restriction requiring permission before filing certain fee-free cases, and reconsider the dismissal of a later case. He also requested more time to appeal the later case.
The court had previously barred Nunez from filing fee-free civil cases about his eviction and related matters without permission. It later dismissed Nunez II without prejudice because he filed it without seeking that permission. Nunez filed two motions seeking relief from those decisions.
The court denied all requested relief. Judge Laura Taylor Swain ruled that Nunez’s challenges to the earlier case were too late, that he had not shown a valid reason to undo either case’s orders, and that no extension of the appeal deadline was needed. The court also denied fee-free status for any appeal from this order.
The detailed version
- Nunez v. Fraser · No. 1:23-cv-00625
- Laura Swain
- June 18, 2025
Background
Javier Nunez represented himself in two related civil actions. In the earlier action, Nunez I, the Court dismissed his case in an order entered October 24, 2023. The Court also required him to explain why it should not bar him from filing future civil actions in this court without paying the filing fee when those actions arose from his eviction and related matters. After considering his responses, the Court imposed that filing restriction on October 31, 2023. Nunez appealed, but the Second Circuit dismissed the appeal as frivolous on March 20, 2024.
In the later action, Nunez II, the Court determined that Nunez was attempting to proceed without paying the filing fee in a case arising from his eviction and related matters, without first obtaining permission as required by the earlier restriction. The Court dismissed Nunez II without prejudice on June 9, 2025. Nunez then filed motions seeking relief under Federal Rules of Civil Procedure 59(e) and 60(b), asking the Court to undo or change the earlier rulings and the dismissal of Nunez II. One motion also sought permission to file in Nunez I and an extension of time to file a notice of appeal in Nunez II.
Rule 59(e) ruling
The Court treated at least one motion as seeking reconsideration of the dismissal of Nunez II under Rule 59(e). Such relief requires showing that the Court overlooked controlling law or factual matters previously presented. The Court held that Nunez had not shown that it overlooked anything concerning Nunez II’s dismissal. The Court therefore denied Rule 59(e) relief concerning Nunez II.
Rule 60(b) ruling
Rule 60(b) permits relief from an order or judgment for specified reasons, including mistake, newly discovered evidence, misconduct by an opposing party, a void judgment, or other extraordinary circumstances. The Court denied relief under Rule 60(b)(1), (2), and (3) concerning the dismissal of Nunez I and the filing restriction imposed in that case because Nunez filed his motions more than one year after those orders and judgment were entered.
The Court separately denied relief under Rule 60(b)(1) through (5) concerning the orders and judgment in Nunez I and the order and judgment dismissing Nunez II. It found that Nunez had not shown that any of the grounds in those provisions applied. The Court also denied relief under Rule 60(b)(6), which covers reasons not addressed by the other provisions, because Nunez provided no facts showing extraordinary circumstances that justified reopening the rulings.
Request for more time to appeal
The Court treated one motion as requesting an extension under Federal Rule of Appellate Procedure 4(a)(5) to file a notice of appeal from Nunez II. The Court denied that request as unnecessary. Because Nunez filed motions under Rules 59(e) and 60(b) within the applicable period after the June 9, 2025 dismissal, the 30-day period for filing a timely appeal would begin when this order was entered.
Disposition
The Court denied all of Nunez’s motions. It warned that continued filing of frivolous or otherwise nonmeritorious documents in Nunez I or Nunez II could lead to a requirement that he obtain permission before filing further documents in those cases. The Court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith and denied fee-free status for purposes of an appeal.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.