09-3628-pr
Brown v. Ionescu


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 7 th day of June, two thousand ten.

PRESENT:         REENA RAGGI,
                 GERARD E. LYNCH,
                 J. CLIFFORD WALLACE,*
                                 Circuit Judges.
-----------------------------------------------------

KEVIN BROWN,
                         Plaintiff-Appellant,
                   v.
                                                            No. 09-3628-pr
GHEORGE IONESCU,
              Defendant-Appellee.

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FOR APPELLANT:                           Kevin Brown, pro se, Brooklyn, New York.

FOR APPELLEE:                            John C. Couzens, Jr., Wilson, Bave, Conboy, Cozza &
                                         Couzens, P.C., White Plains, New York.




          *
         Circuit Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
       Appeal from the United States District Court for the Southern District of New York

(Kevin Nathaniel Fox, Magistrate Judge).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court entered on August 5, 2009, is AFFIRMED.

       Pro se plaintiff Kevin Brown appeals from the denial of his motion for relief from a

jury verdict in favor of defendant on Brown’s claims under 42 U.S.C. § 1983 and state

battery law arising from a medical procedure allegedly performed without Brown’s consent.

See Fed. R. Civ. P. 60. We review the denial of a Rule 60 motion for abuse of discretion.

See Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009). In applying this

standard, we assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

       The district court denied Brown’s motion as untimely filed after construing it to seek

relief from judgment on the ground of “mistake, inadvertence, surprise, or excusable neglect”

pursuant to Rule 60(b)(1). While Rule 60 generally requires that a motion for relief be made

“within a reasonable time,” Fed. R. Civ. P. 60(c)(1), motions under Rule 60(b)(1) are among

those subject to a more specific time limit of one year from the entry of judgment. This time

limit is “‘absolute.’” Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting 12 James

Wm. Moore, Moore’s Federal Practice § 60.65[2][a], at 60-200 (3d ed. 1997)). Brown filed

his motion more than fourteen months after the entry of judgment, well past the one-year

deadline. Accordingly, we detect no error, let alone abuse of discretion, in the district court’s



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denial of the motion as untimely filed.

       Nor would remand be warranted were we to construe Brown’s motion to rely on Rule

60(b)(6), a catchall provision allowing relief from judgment for “any other reason.” While

Rule 60(b)(6) does not impose a one-year time limit, Brown failed to demonstrate the

“extraordinary circumstances” required to justify relief under that provision. Grace v. Bank

Leumi Trust Co. of N.Y., 443 F.3d 180, 190 n.8 (2d Cir. 2006) (internal quotation marks

omitted).1 Indeed, the essence of Brown’s argument is simply that the jury reached the

wrong result. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“[A]

motion to reconsider should not be granted where the moving party seeks solely to relitigate

an issue already decided.”); Matarese v. LeFevre, 801 F.2d 98, 106-07 (2d Cir. 1986)

(holding that, while relief is appropriate in “extraordinary circumstances” or “where the

judgment may work an extreme and undue hardship,” Rule 60(b)(6) “may not be used as a

substitute for appeal”).

       In sum, we conclude that the district court acted within its discretion in denying

Brown’s motion for reconsideration.




       1
        We decline to reach Brown’s argument, made for the first time in his reply brief, that
he never received notice of the judgment against him. See McBride v. BIC Consumer Prods.
Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (observing that this court ordinarily does not
consider issues raised for first time in reply brief); Graham v. Henderson, 89 F.3d 75, 82 (2d
Cir. 1996) (declining to consider argument raised for first time in pro se litigant’s reply
brief).


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      We have considered Brown’s other arguments on appeal and conclude that they are

without merit. Accordingly, the order of the district court denying Brown’s Rule 60 motion

is AFFIRMED.
                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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