Commer v. City of New York

S.D. New York

Commer v. City of New York

160 F.R.D. 466, 1995 U.S. Dist. LEXIS 8927, 1995 WL 144344

CourtDistrict Court, S.D. New York

DecidedApril 1, 1995

DocketNo. 94 Civ. 8462 (DAB)

StatusPublished

This text of 160 F.R.D. 466 (Commer v. City of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commer v. City of New York, 160 F.R.D. 466, 1995 U.S. Dist. LEXIS 8927, 1995 WL 144344 (S.D.N.Y. 1995).

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Opinion

ORDER

BATTS, District Judge:

The plaintiff in this action has moved, pursuant to Fed.R.Civ.P. 60(b), for reconsideration of this Court’s Order dismissing plaintiffs complaint for lack of subject matter jurisdiction. For the following reasons, plaintiffs motion is denied.

Plaintiffs complaint alleged a violation of 29 U.S.C. § 185. That statute, however, specifically exempts from the definition of employer “the United States ... or any state or political subdivision thereof,” which includes the City of New York. 29 U.S.C. § 152(2). As an individual employed by the City of [467]*467New York, plaintiff is specifically excluded from the statutory definition of an employee. See 29 U.S.C. § 152(3). Thus, on January 11,1995, this Court dismissed plaintiffs complaint against defendant District Council 37 Local 375 for lack of subject matter jurisdiction.

Plaintiff now moves for reconsideration of that decision, presumably under Fed.R.Civ.P. 60(b)(6) ¹ implying that the Court simply erred in dismissing the action. Plaintiff mentions no new issues, nor points of law, not previously raised in his original opposition to defendant’s motion to dismiss. Further, plaintiff waited over two months to file his motion, during which period his time to appeal expired. See Fed.R.App.P. 4(a)(1).

It is well settled that Fed.R.Civ.P. 60(b) is not to be used as a substitute for appeal, See House v. Secretary of Health and Human Services, 688 F.2d 7, 9 (2d Cir.1982); Eutectic Corp. v. Metco, Inc., 597 F.2d 32, 34 (2d Cir.1979); Childress v. Taylor, 798 F.Supp. 981, 996 n. 4 (S.D.N.Y.1992), and that relief under 60(b)(6) may only be granted when “exceptional” or “extraordinary” circumstances exist. House, 688 F.2d at 9. The record reflects that plaintiff allowed the time for appeal to pass and then sought 60(b) relief without advancing any argument that would meet the criteria for granting relief under the rule.

For the reasons set forth above, plaintiffs motion for reconsideration is denied.

SO ORDERED

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ORDER

BATTS, District Judge:

The plaintiff in this action has moved, pursuant to Fed.R.Civ.P. 60(b), for reconsideration of this Court’s Order dismissing plaintiffs complaint for lack of subject matter jurisdiction. For the following reasons, plaintiffs motion is denied.

Plaintiffs complaint alleged a violation of 29 U.S.C. § 185. That statute, however, specifically exempts from the definition of employer “the United States ... or any state or political subdivision thereof,” which includes the City of New York. 29 U.S.C. § 152(2). As an individual employed by the City of [467]*467New York, plaintiff is specifically excluded from the statutory definition of an employee. See 29 U.S.C. § 152(3). Thus, on January 11,1995, this Court dismissed plaintiffs complaint against defendant District Council 37 Local 375 for lack of subject matter jurisdiction.

Plaintiff now moves for reconsideration of that decision, presumably under Fed.R.Civ.P. 60(b)(6) ¹ implying that the Court simply erred in dismissing the action. Plaintiff mentions no new issues, nor points of law, not previously raised in his original opposition to defendant’s motion to dismiss. Further, plaintiff waited over two months to file his motion, during which period his time to appeal expired. See Fed.R.App.P. 4(a)(1).

It is well settled that Fed.R.Civ.P. 60(b) is not to be used as a substitute for appeal, See House v. Secretary of Health and Human Services, 688 F.2d 7, 9 (2d Cir.1982); Eutectic Corp. v. Metco, Inc., 597 F.2d 32, 34 (2d Cir.1979); Childress v. Taylor, 798 F.Supp. 981, 996 n. 4 (S.D.N.Y.1992), and that relief under 60(b)(6) may only be granted when “exceptional” or “extraordinary” circumstances exist. House, 688 F.2d at 9. The record reflects that plaintiff allowed the time for appeal to pass and then sought 60(b) relief without advancing any argument that would meet the criteria for granting relief under the rule.

For the reasons set forth above, plaintiffs motion for reconsideration is denied.

SO ORDERED

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160 F.R.D. 466, 1995 U.S. Dist. LEXIS 8927, 1995 WL 144344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commer-v-city-of-new-york-nysd-1995.

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