P.T. Busana Idaman Nurani v. Marissa by GHR Industries Trading Corp.

151 F.R.D. 32, 1993 U.S. Dist. LEXIS 11699, 1993 WL 343173
CourtDistrict Court, S.D. New York
DecidedAugust 23, 1993
DocketNo. 88 Civ. 7370 (DNE)
StatusPublished
Cited by13 cases

This text of 151 F.R.D. 32 (P.T. Busana Idaman Nurani v. Marissa by GHR Industries Trading Corp.) 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.

Bluebook
P.T. Busana Idaman Nurani v. Marissa by GHR Industries Trading Corp., 151 F.R.D. 32, 1993 U.S. Dist. LEXIS 11699, 1993 WL 343173 (S.D.N.Y. 1993).

Opinion

MEMORANDUM & ORDER

EDELSTEIN, District Judge:

In an order dated April 16, 1990, this Court dismissed P.T. Busana Idaman Nura-ni’s (“plaintiff” or “BIN”) action for want of prosecution under Federal Rule of Civil Procedure (“Rule”) 41 and Rule 27 of the Joint Rules of the United States District Courts for the Southern and Eastern Districts (the “Local Rules”). Plaintiff has moved to restore this case to the active docket under Rule 60(b)(6).

Background

In this breach of contract action against GHR Industries Trading Corporation and Marissa Limited (collectively, “defendants” or “GHR”), plaintiff seeks to recover damages incurred when GHR failed to pay for 955 dozen dresses shipped by plaintiff to defendants. Plaintiff is an Indonesian corporation located in Jakarta. BIN obtained a default judgment on December 19, 1988 due to defendants’ failure to file a timely answer. Honorable John M. Walker, to whom this case was originally assigned, vacated the default judgment in a Memorandum & Order dated April 28, 1989, because defendants proffered a potentially viable defense. The case was reassigned to this Court in December 1989. In April 1990, the parties stipulated to an extension of time for defendants to respond to plaintiffs interrogatories. This represents the final entry on the docket sheet until this Court dismissed the case in April 1991 for failure to prosecute under Local Rule 27 and Rule 41.

Plaintiff is currently represented by Mr. Richard L. Garbus, of Solomon, Weiss & Moskowitz, P.C. At the time of filing this action in October 1988, however, plaintiff was represented by another attorney, which this Memorandum will refer to as “Former Counsel.” In early 1989, Former Counsel joined the legal staff of Pan American World Airways Incorporated (“Pan Am”), but continued to handle this matter. Plaintiff asserts that “[t]he last communication BIN had with [Former Counsel] was [a] letter [from her] dated February 17, 1990. Thereafter she simply disappeared.” Plaintiffs Memorandum of Points and Authorities in Support of Motion to Restore Case to Court Docket (“Plaintiff’s Memo”), at 5. From March 1990 through April 1992, Mr. Chandra Sentosa, BIN’s Assistant Director since 1988, stated in affidavit that plaintiff made seven separate attempts to contact Former Counsel either by mail or telex,1 none of which received a [34]*34response. Affidavit of Mr. Chandra Sentosa (“Sentosa Aff.”) at ¶ 9; Plaintiff’s Memo, at 6. In June 1992, after Pan Am had ceased doing business, BIN sent a representative to New York and engaged Coudert Brothers in an effort to locate Former Counsel, but this too-proved unsuccessful. Sentosa Aff., at ¶ 9; Plaintiff’s Memo, at 6. Plaintiff asserts that it did not learn that its case had been dismissed until early this year, when it retained yet another law firm to obtain the case file from the Federal Records Center in Bayonne, New Jersey. Sentosa Aff, at ¶ 10. In a letter dated March 10, 1993, plaintiff requested permission to make this motion, which is dated March 25, 1993.

Discussion

Rule 60(b)(6) provides that “the court may relieve a party ... from a final judgment, order, or proceeding for ... any ... reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(6). Such relief “is appropriate only in cases presenting ‘extraordinary’ circumstances,” such as when the judgment may work an extreme hardship. First Fidelity Bank, N.A. v. Government of Antigua & Barbuda, 877 F.2d 189, 196 (2d Cir.1989) (citing Ackermann v. United States, 340 U.S. 193, 202, 71 S.Ct. 209, 213, 95 L.Ed. 207 (1950)); Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir.1986); see Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir.1990), aff'd, 501 U.S. 115, 111 S.Ct. 2173, 115 L.Ed.2d 109 (1991). Vacating an order under Rule 60(b)(6) is not appropriate where “[n]o additional claims are advanced,” and where movants “simply argue on the same facts that there are ‘extraordinary circumstances’ justifying the exercise of the district court’s equitable powers.” Cruickshank & Co. v. Dutchess Shipping Co., 805 F.2d 465, 469 (2d Cir.1986). “‘[R]elief under [Rule 60(b)(6)] is available only when the movant acts in a timely fashion and asserts a ground justifying relief that is not encompassed within any of the first five clauses.’” Wagner v. New York Univ. Medical Ctr., No. 82 Civ. 1919, 1986 WL 2194 *2 (S.D.N.Y.1986) (quoting United States v. Cirami, 563 F.2d 26, 32 (2d Cir.1977) (hereinafter “Cirami II”)).

In this Circuit, an attorney’s gross negligence is not a basis for relief under Rule 60(b)(6). See United States v. Cirami, 535 F.2d 736, 741 (2d Cir.1976) (hereinafter “Cirami I"); United States v. Gelb, No. 86 Civ. 1552, 1991 WL 20011 *4, 1991 U.S. Dist. LEXIS 1507 *10 (S.D.N.Y.1991); Jarblum, Solomon & Fornari, P.C. v. Becker, No. 87 Civ. 8950, 1990 WL 213031 *3, 1990 U.S. Dist. LEXIS 17118 *8 (S.D.N.Y.1990); Ituarte v. Chevrolet Motor Div., No. 86 Civ. 2843, 1989 WL 10562 *4 n. 2, 1989 U.S. Dist. LEXIS 1146 *7 n. 2 (E.D.N.Y.1989). Nevertheless, the Second Circuit has held that an attorney’s mental illness can constitute an “extraordinary circumstance” justifying relief under Rule 60(b)(6). See Cirami II, 563 F.2d at 34-35; Ituarte, 1989 WL 10562 at *5, 1989 U.S. Dist. LEXIS 1146 at *7; Goldberg v. Rouche Ross & Co., No. 74 Civ. 1483, slip op. at 2 (S.D.N.Y. Dec. 7, 1982). In Cirami II, defendants’ attorney failed to oppose a partial summary judgment motion in a federal tax collection action. The court granted partial summary judgment due to lack of opposition. Represented by new counsel, defendants moved to vacate the judgment under Rule 60(b)(6). In support of their motion, defendants submitted affidavits setting forth their attempts to contact their prior attorney and they detailed the prior attorney’s assurances that he was addressing the matter. Defendants also submitted affidavits from their former attorney and his psychologist that contained assertions that during the relevant time period, prior counsel had been undergoing psychoanalysis. The Second Circuit found that, if proved, this situation merits Rule 60(b)(6) relief.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Untitled Case
D. Connecticut, 2026
Internal Revenue Service v. Murphy
554 B.R. 535 (D. Maine, 2015)
Buffalo Teachers Federation v. Tobe
852 F. Supp. 2d 344 (W.D. New York, 2012)
Hom v. Brennan
840 F. Supp. 2d 576 (E.D. New York, 2011)
Cruz v. MUNICIPALITY OF DORADO
780 F. Supp. 2d 157 (D. Puerto Rico, 2011)
D'Angelo v. State Farm Fire & Casualty Co.
32 F. App'x 604 (Second Circuit, 2002)
Clarendon National Insurance v. TIG Reinsurance Co.
183 F.R.D. 112 (S.D. New York, 1998)
McKernan v. Dupont
968 P.2d 623 (Court of Appeals of Arizona, 1998)
Cobos v. Adelphi University
179 F.R.D. 381 (E.D. New York, 1998)
Grabois v. Dura Erect Corp.
981 F. Supp. 295 (S.D. New York, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
151 F.R.D. 32, 1993 U.S. Dist. LEXIS 11699, 1993 WL 343173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pt-busana-idaman-nurani-v-marissa-by-ghr-industries-trading-corp-nysd-1993.