Nunez v. Silber
- Colleen McMahon
- 1:18-cv-00892
- U.S. District Court · Southern District of New York
- 4
In Nunez v. Silber, Judge McMahon denied Javier Nunez’s Rule 60(b) motion and ordered him to explain why future filings should not be barred.
Javier Nunez’s request for relief from the earlier judgment was denied. He was required to explain within 30 days why future filings in this action should not be barred, except for a notice of appeal. The defendants were not granted any new relief by this order.
What happened
In Nunez v. Silber, Javier Nunez asked the court to reconsider its 2018 dismissal of his case for lack of authority to hear it. The court had dismissed that case without prejudice, and the Second Circuit later dismissed Nunez’s appeal as frivolous.
The court treated Nunez’s filing as a request for relief from the earlier judgment under Rule 60(b). It found that any request based on mistake, newly discovered evidence, or misconduct was too late, and that Nunez had not shown grounds for relief under any part of that rule.
Judge Colleen McMahon denied the motion. She also ordered Nunez to submit a declaration within 30 days explaining why he should not be barred from filing anything else in this case, except a notice of appeal; the court denied him permission to appeal without paying filing fees.
The detailed version
- Nunez v. Silber · No. 1:18-cv-00892
- Colleen McMahon
- Jan. 10, 2022
Background
The court had dismissed Javier Nunez’s pro se action for lack of subject-matter jurisdiction on April 9, 2018, and did so without prejudice. The Second Circuit later dismissed Nunez’s appeal as frivolous. The January 10, 2022 motion was Nunez’s fourth request for postjudgment relief; the opinion states that all three earlier requests had been denied.
Rule 60(b) motion
Nunez called his filing a motion for reconsideration. The court liberally construed it as a motion for relief from an order or judgment under Federal Rule of Civil Procedure 60(b).
A request under Rule 60(b)(1), (2), or (3) must be filed within one year of the challenged order or judgment. Because the challenged judgment was entered on April 9, 2018, the deadline for those grounds was April 9, 2019. Nunez filed the current motion on December 17, 2021, so the court held that any request under those three provisions was untimely. The court also held that, even under its liberal reading of the motion, Nunez had not shown that any of the grounds in the first five provisions of Rule 60(b) applied.
Rule 60(b)(6) permits relief for another reason justifying it, but it cannot be used to avoid the one-year limit applicable to the first three provisions. It also requires a filing within a reasonable time and extraordinary circumstances. The court held that Nunez had not shown extraordinary circumstances. The court therefore denied relief under the first five provisions and denied relief under Rule 60(b)(6).
Possible filing injunction
The court had previously warned Nunez that filing additional frivolous or meritless documents could lead to an order requiring him to explain why he should not be barred from filing further documents in this action. Because the court found that Nunez had not heeded that warning, it directed him to submit, within 30 days, a declaration showing good cause why a filing injunction should not be imposed. The proposed bar would cover future submissions in this action but would not cover a notice of appeal. The court had not yet imposed that bar in this order; it stated that it would do so if Nunez failed to submit the declaration or failed to show good cause.
Conclusion and appeal status
The court denied Nunez’s latest postjudgment motion. It also certified that an appeal from the order would not be taken in good faith and denied permission to appeal without prepaying fees. Judge Colleen McMahon signed the order on January 10, 2022.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.