    18-2411
    Deng v. New York State Office of Mental Health


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 4th day of November, two thousand nineteen.

    PRESENT:
                ROBERT A. KATZMANN,
                            Chief Judge,
                CHRISTOPHER F. DRONEY,
                            Circuit Judge,
                JEFFREY ALKER MEYER,
                            District Judge.*
    _____________________________________

    Ren Yuan Deng,

                               Plaintiff-Appellant,

                      v.                                                        18-2411

    New York State Office of Mental Health, Molly
    Finnerty, Emily Leckman-Westin, Lynn Heath,
    Barbara Forte, Paul Connelly, and Michael Hogen,

                               Defendants-Appellees.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                                            Ren Yuan Deng, pro se, New
                                                                        York, N.Y.

    * Judge Jeffrey Alker Meyer, of the United States District Court for the District of Connecticut,
    sitting by designation.
FOR DEFENDANTS-APPELLEES:                                           Mark S. Grube, New York
                                                                    State Office of the Attorney
                                                                    General, New York, N.Y.


         Appeal from an order of the United States District Court for the Southern District of New

York (Carter, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

         Appellant Ren Yuan Deng, proceeding pro se, appeals the district court’s order denying

her Fed. R. Civ. P. 60(b) motion for reconsideration of its order granting summary judgment in

favor of the defendants.     We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

   I.       Jurisdiction

         Although Deng purports to appeal from both the district court’s denial of her Rule 60(b)

motion and its underlying order granting summary judgment, we do not have jurisdiction over the

appeal of the underlying judgment. “[T]he timely filing of a notice of appeal in a civil case is a

jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). A notice of appeal

“must be filed with the district clerk within 30 days after entry of the judgment or order appealed

from.”     Fed. R. App. P. 4(a)(1)(A) (30-day deadline where neither party is the federal

government); 28 U.S.C. § 2107(a). The time to file a notice of appeal is tolled during the

pendency of a Rule 60 motion if that motion is filed no later than 28 days after the judgment is

entered. Fed. R. App. P. 4(a)(4)(A)(vi). Deng’s notice of appeal was timely only as to the Rule

60(b) denial. And her Rule 60(b) motion was not filed within 28 days of the district court’s order

granting the defendants’ motion for summary judgment, so the time to appeal the judgment was

not tolled. See id.; Phillips v. Corbin, 132 F.3d 867, 868–69 (2d Cir. 1998) (per curiam) (noting
that a Rule 60(b) motion will toll the time to appeal only if it is filed within the time specified in

Rule 4(a)).

         Deng’s motions to extend the time to file her Rule 60(b) motion do not alter that outcome

because those motions are not one of the specified motions in Fed. R. App. P. 4(a)(5) and (6). See

Cyrus v. City of New York, 450 F. App’x 24, 25 (2d Cir. 2011) (summary order); cf. Glinka v.

Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996) (“Allowing subsequent motions to repeatedly toll the

filing period for a notice of appeal would encourage frivolous motions and undermine a

fundamental canon of our legal system, to promote the finality of judgments.”). Deng’s motions

to extend the time to file a Rule 60(b) motion cannot be construed as notices of appeal (or requests

to extend the time to appeal), because nothing in those motions demonstrated an intent to appeal.

See Haugen v. Nassau Cty. Dep’t of Social Servs., 171 F.3d 136, 138 (2d Cir. 1999) (per curiam)

(finding that a document “must specifically indicate the litigant’s intent to seek appellate review”

to be construed as an effective notice of appeal (internal quotation marks omitted)). Finally, the

savings clause of Rule 60 has no bearing on this jurisdictional analysis, because it does not pertain

to the timeliness of an appeal from the underlying judgment. See Fed. R. Civ. P. 60(d). We thus

lack jurisdiction over the district court’s grant of summary judgment in favor of the defendants

and proceed to review only the order denying Deng’s Rule 60(b) motion.

   II.        Denial of Rule 60(b) Motion

         We review the denial of a Rule 60(b) motion for abuse of discretion. Gomez v. City of

New York, 805 F.3d 419, 423 (2d Cir. 2015) (per curiam). “A district court is said to abuse its

discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment

of the evidence[.]” Id. (internal quotation marks omitted). Rule 60(b) is “a mechanism for

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‘extraordinary   judicial   relief’   invoked    only    if   the   moving    party    demonstrates

‘exceptional circumstances.’” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.

2008) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1994)). A Rule

60(b) motion “cannot serve as an attempt to relitigate the merits.” Fleming v. N.Y. Univ., 865

F.2d 478, 484 (2d Cir. 1989); see Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

       Specifically, Rule 60(b)(3) allows vacatur of a judgment based on “fraud . . .,

misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3). The movant

must establish such fraud by clear and convincing evidence. Fleming, 865 F.2d at 484 (finding

district court did not abuse its discretion in denying Rule 60(b)(3) motion where that motion was

a “mixed bag, including some items of little probative value and others that might have given pause

if submitted earlier in opposition to the summary judgment motion”). Further, the movant “must

show that the conduct complained of prevented the moving party from fully and fairly presenting

his case.” State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir.

2004) (internal quotation marks omitted).

       Here, Deng’s Rule 60(b) motion mostly recharacterizes arguments made in her opposition

to summary judgment as instances of “fraud.” Even if the specific examples of omissions and

contradictions cited by Deng in her motion constituted fraud, misrepresentation, or misconduct by

the defendants, Deng failed to show that she was prevented from fully and fairly litigating her case.

And her Rule 60(b) motion overall attempts to relitigate her summary judgment motion, which is

improper. See Schrader, 70 F.3d at 257. Therefore, the district court did not abuse its discretion

in denying Deng’s Rule 60(b) motion.



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       We have considered all of Deng’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.

                                           FOR THE COURT:
                                           Catherine O=Hagan Wolfe, Clerk of Court




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