                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2911
                                       ___________

                                 GNANA M. CHINNIAH,
                             a/k/a Gnanachandra M. Chinniah;
                               SUGANTHINI CHINNIAH

                                             v.

                         TOWNSHIP OF EAST PENNSBORO;
                              JEFFREY S. SHULTZ

                           Gnana M. Chinniah; Suganthini Chinniah,
                                                                Appellants
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 1:08-cv-01330)
                        District Judge: Honorable Yvette Kane
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 2, 2015
          Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges

                           (Opinion filed: December 21, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellants Gnana and Suganthini Chinniah, proceeding pro se, appeal from an

order of the United States District Court for the Middle District of Pennsylvania denying

their motion to open a judgment pursuant to Federal Rule of Civil Procedure 60(b). For

the reasons set forth below, we will affirm the order of the District Court.

       The procedural history of this case and the details of the Chinniahs’ claims are

well-known to the parties and need not be discussed at length. In short, the Chinniahs

brought this action in 2008 pursuant to 42 U.S.C. § 1983 alleging that Defendants East

Pennsboro Township and Jeffrey Shultz, a township Building Inspector and Codes

Enforcement Officer, treated them differently because they are of Indian descent and

practice Hinduism. The Chinniahs purchased property in East Pennsboro in 2007, and

claim that Shultz treated them worse than the previous owner, a white man, and that this

was part of a pattern in East Pennsboro of treating Indian property owners less

advantageously than similarly situated non-Indians. The Chinniahs contended that this

different treatment violated the Equal Protection Clause.

       After a four-day trial in November of 2013, a jury found for Defendants on all

claims. The Chinniahs’ counsel then withdrew, and the Chinniahs, who have proceeded

pro se since, timely appealed. We affirmed the judgment of the District Court,

concluding that the jury’s verdict was supported by adequate evidence in the record and

that the Chinniahs offered no meritorious basis for reversal. See Chinniah v. East

Pennsboro Twp., 602 F. App’x 558, 560 (3d Cir. 2015).


                                             2
       Several months after the mandate in the prior appeal issued, the Chinniahs filed a

motion in the District Court pursuant to Federal Rule of Civil Procedure 60(b)(6) seeking

to open the judgment entered on the jury verdict. The Chinniahs primarily argued that

the conduct of their attorney, Joshua Autry, Esq., at trial constituted a “virtual

abandonment”1 of their case justifying relief from the judgment entered on the jury

verdict. The Chinniahs contend that various allegedly “improper” contacts between the

jury and counsel or court staff resulted in Autry altering his trial strategy such that he

failed to: (1) call all of the witnesses who were subpoenaed to appear; (2) introduce all

documents into evidence; and (3) fully and effectively cross-examine all witnesses.2


1
        Appellants’ “virtual abandonment” argument is borrowed from a case decided by
the Court of Appeals for the Ninth Circuit. See Mackey v. Hoffman, 682 F.3d 1247,
1251-53 (9th Cir. 2012).
2
        The Chinniahs point to two specific contacts with the jury that they consider as
“serious” and “improper.” One such contact occurred between Defendants’ counsel as he
was entering the courthouse and a juror who was outside smoking a cigarette. The juror
asked if trial would be finishing that day, and counsel responded that it would likely go
until Monday. This inadvertent and limited interaction was promptly brought to the
attention of the District Court at sidebar on the morning when it occurred. We have
reviewed the transcript from the sidebar conference and concluded that this incident was
neither serious, nor improper.
        The second contact concerns communications between the jury and the District
Court’s courtroom deputy that were allegedly relayed to the Chinniahs’ attorney. It
appears that the jury expressed dissatisfaction with the length of time Defense counsel
was taking to examine a witness, and the Chinniahs learned of this from a handwritten
note from Autry explaining that he was going to ask “very few questions” on cross. We
note that, in general, communications between the jury and a courtroom deputy are to be
expected as a matter of course during trial because the deputy handles the logistical needs
of jurors during their service, and nothing about that type of general communication can
be deemed improper. To the extent that feedback from the jury regarding the pace of trial
was shared with Autry, the nature of this feedback was seemingly innocuous. In any
event, the Chinniahs have not pointed to evidence that this interaction led to changes in
                                               3
       By order dated July 15, 2015, the District Court denied the Rule 60(b)(6) motion,

concluding that most of the contentions re-raised in the Rule 60(b)(6) motion – those

alleging attorney misconduct and conspiracy – had previously been rejected by this Court

in the prior appeal as meritless. The District Court further determined that the Chinniahs

failed to demonstrate that they did not receive a fair trial. In reaching that conclusion, the

District Court fully considered the Chinniahs’ argument that alleged improper contact

with the jury by counsel and court staff resulted in a change of trial strategy by Autry so

significant that it constituted a “virtual abandonment” of their case at trial. The District

Court explicitly found that Autry represented the Chinniahs diligently throughout the

proceedings and that the Chinniahs’ disagreement with his trial strategy was insufficient

to support a “virtual abandonment” claim warranting relief under Rule 60(b)(6).

       The Chinniahs filed a timely notice of appeal, and we have jurisdiction pursuant to

28 U.S.C. § 1291. We review a district court’s denial of a motion under Rule 60(b)(6)

for abuse of discretion. Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 2014), cert. denied sub

nom. Wetzel v. Cox, 135 S. Ct. 1548 (2015) (citing Brown v. Phila. Hous. Auth., 350

F.3d 338, 342 (3d Cir. 2003)). “A district court abuses its discretion when it bases its

decision upon a clearly erroneous finding of fact, an erroneous conclusion of law, or an




trial strategy that could somehow be deemed abandonment by Autry. See, e.g., Latshaw
v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2007) (noting that Rule
60(b)(6) relief is permissible only for cases of extreme negligence or misconduct by an
attorney).
                                              4
improper application of law to fact.” Cox, 757 F.3d at 118 (citing Morris v. Horn, 187

F.3d 333, 341 (3d Cir.1999)).

       We have considered the parties’ briefs and appendices, and conclude that the

District Court did not abuse its discretion in denying the Chinniahs’ Rule 60(b)(6)

motion. Reopening of a judgment under Rule 60(b)(6) is warranted “only in

extraordinary circumstances where, without such relief, an extreme and unexpected

hardship would occur.” Cox, 757 F.3d at 120 (quotation marks omitted). The District

Court did not abuse its discretion in concluding that the Chinniahs’ arguments are

insufficient to warrant the extraordinary relief provided for in Rule 60(b)(6). The

arguments raised in their motion had previously been raised before both the District

Court and this Court and were rejected as meritless. See Chinniah, 602 F. App’x at 560

(observing that “[a]s to the Chinniahs’ allegations of attorney misconduct and conspiracy,

they offer little but speculation.… [T]heir allegations do not provide a basis for relief in

this action.”). Raising the same arguments yet again and simply recharacterizing them as

an example of counsel’s “virtual abandonment”3 does not transform them from

speculative arguments into meritorious ones.


3
       In Mackey, the Ninth Circuit issued a narrow holding that “a district court may
grant an incarcerated habeas petitioner relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b)(6) if his attorney’s abandonment causes him to fail to timely file a
notice of appeal.” 682 F.3d at 1248. The applicability of that narrow holding to
Appellants’ case is questionable at best. The incarcerated petitioner in Mackey was
essentially deprived of the opportunity to file an appeal from the denial of his habeas
petition because of an alleged abandonment by his counsel. The Chinniahs’ case presents
very different circumstances. They are not incarcerated, nor are they seeking habeas
                                              5
       Furthermore, the District Court based its decision to deny the motion on its own

observations of Autry at trial. The District Court determined that Autry diligently

represented the Chinniahs, and we see no reason to disturb that conclusion. The District

Court – having presided over the trial and having observed firsthand the conduct

Appellants challenge – was in the best position to assess whether Autry’s behavior

altered the outcome of the trial in such a way as to warrant the extraordinary remedy of

relief under Rule 60(b)(6). Because the Chinniahs have not demonstrated that the District

Court based its decision upon a clearly erroneous finding of fact, an erroneous conclusion

of law, or an improper application of law to fact, see Cox, 757 F.3d at 118, we cannot

conclude that the District Court abused its discretion in denying their Rule 60(b)(6)

motion.

       We have carefully reviewed the rest of the Chinniahs’ claims on appeal and find

them to be meritless. For essentially the same reasons set forth by the District Court in its

well-reasoned order, we will affirm.




relief. Moreover, they received a multi-day jury trial after several years of litigation,
filed post-trial motions, and previously appealed to this Court in order to seek review of
their claims. The record demonstrates that Autry’s conduct cannot be characterized as
the sort of gross negligence that amounts to having practically no representation and
therefore constitutes an extraordinary circumstance warranting relief under Rule 60(b)(6).
See Latshaw, 452 F.3d at 1103 (observing that a client is usually accountable for the
neglectful or negligent acts of his attorney and that judgments are only set aside under
Rule 60(b)(6) based on attorney conduct where that conduct amounts to gross negligence
or egregious misconduct).
                                              6
