                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-2006

Gimbi v. Fairbanks Cap Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3564




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                                           NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 06-3564


   SHARON GIMBI; *CLARENCE GIMBI,
                             Appellants

                      v.

        FAIRBANK CAPITAL CORP.

   *Dismissed per Clerk's Order of 10/03/06


On Appeal from the United States District Court
    for the Middle District of Pennsylvania
       D.C. Civil Action No. 01-cv-1992
        (Honorable A. Richard Caputo)


Submitted Pursuant to Third Circuit LAR 34.1(a)
             November 28, 2006


                 No. 06-4432


          IN RE: SHARON GIMBI,
                          Petitioner


 On Petition for a Writ of Mandamus from the
      United States District Court for the
       Middle District of Pennsylvania
 Related to D.C. Civil Action No. 01-cv-1992
                        Submitted Under Rule 21, Fed. R. App. P.
                                  November 28, 2006

         Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges

                               (Filed:   December 6, 2006)


                               OPINION OF THE COURT


PER CURIAM.

       Sharon Gimbi appeals the District Court’s order denying her motion filed pursuant

to Fed. R. Civ. P. 60(b). Gimbi filed the motion over four years after the District Court

entered its order dismissing her complaint. The District Court dismissed the Rule 60(b)

motion as untimely. Gimbi filed a timely notice of appeal. She has also filed a petition

for a writ of mandamus.

       We have jurisdiction under 28 U.S.C. § 1291. The denial of a Rule 60(b) motion

is an appealable order; however, the scope of the appeal does not include the underlying

judgment. Browder v. Director of Dep’t of Corrections, 434 U.S. 257, 263 n.7 (1978).

Disposition of a motion under Rule 60(b) is within the discretion of the District Court,

and we review the ruling only for an abuse of that discretion. Hodge v. Hodge, 621 F.2d

590, 593 (3rd Cir. 1980). Under Rule 60(b), a party can seek relief from judgment based

on the following reasons:

       (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
       discovered evidence which by due diligence could not have been discovered
       in time to move for a new trial under Rule 59(b); (3) fraud (whether

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       heretofore denominated intrinsic or extrinsic), misrepresentation, or other
       misconduct of an adverse party; (4) the judgment is void; (5) the judgment
       has been satisfied, released, or discharged, or a prior judgment upon which
       it is based has been reversed or otherwise vacated, or it is no longer
       equitable that the judgment should have prospective application; or (6) any
       other reason justifying relief from the operation of the judgment.

In her motion, Gimbi argued for relief under Rule 60(b) based on fraud and obstruction of

justice. Rule 60(b) provides that a motion made under reason (3) may not be filed more

than a year after the judgment. Gimbi’s Rule 60(b) motion was filed well beyond a year

after the judgment. Thus, the District Court did not abuse its discretion in dismissing the

motion.

       Gimbi also argues on appeal that Judge Caputo should have recused himself

because her expert witness is Michael Shemonsky. In March 2005, Judge Caputo entered

an order recusing himself from any matter involving Shemonsky. However, Gimbi did

not mention any involvement of Shemonsky in the Rule 60(b) motion or brief. Thus, the

District Court was not given notice that this matter allegedly involved Shemonsky. Nor

did Gimbi request that Judge Caputo recuse himself.

       For the above reasons, as well as those set forth by the District Court, we will

affirm the District Court’s judgment. Gimbi’s motion to file an expert report and her

motion to stay inspection of the house are denied. Gimbi’s petition for a writ of

mandamus is denied. Her motion to compel the District Court to convene a grand jury is

denied. There is no federal right to require the government to initiate criminal




                                             3
proceedings. Linda R.S. v. Roland D., 410 U.S. 614, 619 (1973); United States v.

Berrigan, 482 F.2d 171, 173- 74 (3d Cir. 1973).




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