                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2007

Virgin Records v. Sparano
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4603




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Recommended Citation
"Virgin Records v. Sparano" (2007). 2007 Decisions. Paper 561.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/561


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                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 NO. 06-4603
                              ________________

                     VIRGIN RECORDS AMERICA, INC.

                                        v.

 KIM SPARANO; DOES No. 1-50, Inclusive; XYZ COMPANY No. 1-50, Inclusive;
                       BENJAMIN SPARANO,

                        Kim Sparano; Benjamin Sparano,

                                   Appellants

                 ______________________________________

                On Appeal From the United States District Court
                          For the District of New Jersey
                             (D.C. No. 05-cv-02511)
               District Judge: Honorable Joseph A. Greenaway, Jr.
                _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                              AUGUST 17, 2007

      Before: RENDELL, HARDIMAN AND COWEN, CIRCUIT JUDGES

                            (Filed August 21, 2007 )

                             ___________________

                                 OPINION
                          _______________________
PER CURIAM

    On October 6, 2006, the district court denied Kim and Benjamin Sparano’s motion
to reconsider the July 19, 2006 denial of their motion to declare null and void their

stipulation with Virgin Records America, Inc. (“Virgin”). We will affirm.

                                              I.

       On May 12, 2005, Virgin filed a complaint in the U.S. District Court for the

District of New Jersey asserting that pro se defendant Kim Sparano 1 infringed Virgin’s

copyrights by releasing and distributing certain sound recordings over the internet. On

May 18, 2006, the district court issued a final judgment and order after the parties settled

the case through a stipulation. However, on June 12, 2006, after Virgin accused the

Sparanos of violating the stipulation, the Sparanos filed a motion to declare the

stipulation and May 18th order null and void. The district court denied the motion on

July 19th, and on August 8th, the Sparanos filed a “Motion to Reconsider.”

       The Sparanos did not specify the legal foundation of the motion to reconsider;

however, the district court determined that their “assertions [we]re best framed and

evaluated under the rubric of Fed. R. Civ. P. 60(b) . . . .” And on October 6, 2006, the

district court denied the motion because it merely reiterated the arguments advanced in

the Sparanos’ motion to declare the stipulation null and void and failed to present new

evidence or a change in controlling law.2 The Sparanos appealed from the October 6th



       1
             Ms. Sparano is a non-practicing attorney licensed in New Jersey. Benjamin
Sparano, Ms. Sparano’s son, was added as a defendant in May 2006.

       2
             Although the district judge stated that he considered the motion a Rule
60(b) motion, he apparently evaluated it under the Rule 59(e) standard. Nevertheless, we

                                              2
order on October 26, 2006.

                                           II.

       Subject to certain exceptions, a notice of appeal must be filed within thirty days

from the entry date of the disputed order. Fed. R. App. P. 4(a)(1)(A). We cannot review

the July 19th order because the Sparanos filed their notice of appeal on October

26th—well outside the thirty-day deadline. Moreover, the Sparanos’ August 8, 2006

motion to reconsider did not toll the time for filing the appeal because it was filed more

than ten days after the July 19th order. Fed. R. App. P. 4(a)(4)(A).

       The notice of appeal is timely, however, as to the October 6, 2006 order denying

the motion to reconsider because the district court considered it a Rule 60(b) motion.

When a motion is “filed outside of the ten days provided for under Rule 59(e) but within

the year permitted under Rule 60(b), and the motion may be read to include grounds

cognizable under the latter rule, we will consider it to have been filed as a Rule 60(b)

motion.” Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002). The thrust of the

Sparanos’ motion to reconsider was that the stipulation that ended the litigation was “not

fairly arrived at” due to Virgin’s misrepresentations and omissions. They also alleged

that the district court erred by determining that they had not presented “clear and

convincing proof” that the stipulation should be rescinded. Because the motion, under a




affirm the denial of the motion because it cannot survive review under the Rule 60(b)
standard.

                                                 3
liberal reading, included grounds cognizable under Rule 60(b)(3), i.e., fraud or

misrepresentation, the district court’s determination that it be considered a Rule 60(b)

motion was appropriate. See Ahmed, 297 F.3d at 208-09.

                                           III.

       We have jurisdiction pursuant to 28 U.S.C. § 1291, and the denial of a Rule 60(b)

motion is reviewed for abuse of discretion. Reform Party of Allegheny County v.

Allegheny County Dep’t of Elections, 174 F.3d 305, 311 (3d Cir. 1999) (“An abuse of

discretion may be found when the district court’s decision rests upon a clearly erroneous

finding of fact, an errant conclusion of law or an improper application of law to fact.”)

(internal citation omitted). Additionally, an appeal from the denial of a Rule 60(b)

motion places at issue only the denial of the motion for review, not the merits of the

underlying decision. Smith v. Evans, 853 F.2d 155, 158 n.1 (3d Cir. 1988).

       The Sparanos’ motion does not expressly cite to any of Rule 60(b)’s enumerated

grounds for relief, and in fact does not cite Rule 60 at all; however, the Sparanos contend

that Virgin made material misrepresentations and omissions to induce them to sign the

stipulation that ended the litigation. Thus, the motion could be read as falling under Rule

60(b)(3) as well as the “catchall” of 60(b)(6). There are, however, no “extraordinary

circumstances” present that warrant reconsideration under Rule 60(b)(6). See Reform

Party, 174 F.3d at 311. Additionally, as the district court recognized, the Sparanos’

motion essentially reargues the merits of their original motion to declare the stipulation



                                              4
null and void and disagrees with the district court’s conclusions that they did not support

their allegations with the required clear and convincing evidence. Such contentions do

not justify relief under Rule 60.3 Accordingly, the district court did not abuse its

discretion in denying the Sparanos’ motion to reconsider.

         For the foregoing reasons, we will affirm the district court’s October 6, 2006

order.




         3
               It appears that the Sparanos were attempting to use the motion to
reconsider as a substitute for appeal, which is not allowed. Martinez-McBean v. Gov’t of
Virgin Islands, 562 F.2d 908, 911 (3d Cir. 1977) (“[I]t is improper to grant relief under
Rule 60(b)(6) if the aggrieved party could have reasonably sought the same relief by
means of appeal.”).

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