NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 23-2261

__________

JOANN FONZONE, a/k/a Judy McGrath,

Appellant

v.

JOE OTERI; OFFICER KELECHEWISCKY; OFFICER LESINETTE ORTIZ; 

OFFICER BEE; OFFICER KOVAC; PHILLIES; CITIZENS BANK PARK; 

CITY OF PHILADELPHIA

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 5-12-cv-05726)

Magistrate Judge: Honorable Pamela A. Carlos (by consent)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 26, 2024

Before: BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges

(Opinion filed: February 28, 2024)

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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.
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In October 2012, the appellant, Jo Ann Fonzone, filed a civil rights complaint in

the District Court claiming that her constitutional rights had been violated during an 

incident at a Philadelphia Phillies baseball game.1 After several years of protracted 

litigation, the District Court dismissed the complaint for failure to prosecute. ECF No. 

212 (citing Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984)).

Fonzone subsequently filed a motion to reopen the proceedings under Federal 

Rule of Civil Procedure 60(b). She challenged the District Court’s Poulis analysis and 

asserted that she had not been properly served with a copy of the dismissal order. She 

also raised several objections relating to the pretrial proceedings, arguing, for example, 

that the defendants had wrongly withheld discovery, and that the District Court had 

improperly dismissed certain claims. The District Court rejected these arguments and 

denied relief. Upon review, we dismissed the appeal to the extent that Fonzone 

challenged the District Court’s Poulis dismissal because the notice of appeal was not 

timely as to that order. We affirmed the denial of the Rule 60(b) motion, agreeing with 

the District Court that the record did not support Fonzone’s contention that she had not 

been properly served, and that the remainder of her arguments should have been raised 

via appeal of the underlying order. See Fonzone v. Oteri, No. 22-2301, 2023 WL 

1 Specifically, Fonzone alleged that a security guard and a police officer injured her while 

forcibly removing her from her seating area. She was then placed in a holding cell, 

where she alleges she was beaten by police. Fonzone was convicted of disorderly 

conduct for her behavior at the game. See Commonwealth v. McGrath, No. 1716 EDA 

2014, 2015 WL 7737493 (Pa. Super. Ct. Dec. 1, 2015).
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1813497, at *2–3 (3d Cir. Feb. 8, 2023) (per curiam) (not precedential). Fonzone then 

filed a second Rule 60(b) motion repeating many of the same arguments. The District 

Court again denied relief. 

In April 2023, Fonzone filed the motion at issue here, a third Rule 60(b) motion.

In addition to reasserting issues that the District Court had already rejected, she sought 

relief under Rule 60(b)(1) on the ground that a “mistake” in the ECF notification system 

in 2019 incorrectly indicated that her case had been closed when it had only been placed 

in suspense. She also sought relief under Rule 60(b)(2) on the grounds that audio 

recordings of the 911 call she made to police constituted “new evidence” demonstrating 

that she was an “injured crime victim,” Br. 4, ECF No. 19-1. The District Court denied 

relief under the respective rules, explaining that the alleged docketing mistake did not call 

the validity of the judgment into question, and that the 911 recordings were not “new” 

because Fonzone had had them for over a decade. Fonzone moved for reconsideration, 

but the District Court denied that motion as well. Fonzone appealed. 

We have jurisdiction under 28 U.S.C. § 1291. We first stress the narrow scope of 

this appeal. Fonzone’s notice of appeal is timely only as to the District Court’s order 

denying her Rule 60(b) motion and its subsequent order denying reconsideration thereof, 

see Fed. R. App. P. 4(a)(4)(A)(iv) (stating that a timely filed Rule 59 motion tolls the 

time to file an appeal); York Grp., Inc. v. Wuxi Taihu Tractor Co., 632 F.3d 399, 401–02 

(7th Cir. 2011); it is not timely as to the District Court’s underlying order dismissing the 
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amended complaint, see Fed. R. App. P. 4(a)(4)(A)(vi) (stating that a Rule 60 motion 

suspends a judgment’s finality only if it is filed within the time to file a Rule 59(e)

motion; that is, within twenty-eight days of its entry). We review the District Court’s 

order denying the two motions for an abuse of discretion. See Max’s Seafood Café ex 

rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); Budget Blinds, Inc. v. 

White, 536 F.3d 244, 251 (3d Cir. 2008).

The District Court did not abuse its discretion here. As we explained when her 

first Rule 60(b) motion was before us, Fonzone cannot use Rule 60(b) to reassert 

arguments that the District Court has already rejected and that she should have raised via 

appeal. See Morris v. Horn, 187 F.3d 333, 343 (3d Cir. 1999) (explaining that Rule 60(b) 

may not be used as a substitute for appeal); see generally Kemp v. United States, 596 

U.S. 528, 538 (2022) (declining to define the “reasonable time” standard but noting that 

Courts of Appeals have used it to deny Rule 60(b)(1) motions alleging errors that could 

have been raised in a timely appeal). Moreover, as the District Court noted, audio 

recordings that Fonzone has possessed since before her complaint was dismissed are not 

“newly discovered” under Rule 60(b)(2). See Fed. R. Civ. P. 60(b)(2) (allowing relief 

from judgment based on evidence that could not have been discovered within time to 

move for new trial under Rule 59(b)); Fed. R. Civ. P. 59(b) (providing that “[a] motion 

for a new trial must be filed no later than 28 days after entry of judgment”). Lastly, the 

District Court reasonably concluded that the alleged docket-report “mistake” does not 
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warrant reopening under Rule 60(b)(1) because the error did not affect the validity of the 

Poulis dismissal order. 

For these reasons, the District Court acted within its discretion in denying 

Fonzone’s Rule 60(b) motion as well as her subsequent motion for reconsideration 

thereof. We will therefore affirm the District Court’s judgment.