20

- 2283

- cv Daniel v. T&M Protection Res., LLC


## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WI TH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 3 r d d a y of F e b r u a r y , two thousand twenty

- one . 3 4 PRESENT: 5 SUSAN L. CARNEY , 6 WILLIAM J. NARDINI , 7 Circuit Judges, 8 LEWIS J. LIMAN , 9 Distric t Judge. * 10

_____________________________________ 11 12 Otis A. Daniel , 13 14 Plaintiff

- Appellant , 15 16

v. 20

- 2283 17 18 T&M Protection Resources, LLC , 19 20 Defendant

- Appellee , 21 22 Edward J. Minkoff Equities, Inc., Universal 23 Protection Services , 24 25 Defendants

. 26 27

_____________________________________ 28 29

* Judge Lewis J. Liman, of the United States District Court for the Southern District of New York, sitting by designation.2 FOR PLAINTIFF

- APPELLANT: Otis A. Daniel
, pro se , New 1 York
, N Y

. 2 3 FOR DEFENDANT

- APPELLEE: Leonard Weintraub, Paduano 4 & Weintraub LLP
, New 5 York , N Y

. 6 7 Appeal from two orders of the United States District Court for the Sou thern District of New 8

York ( Engelmayer
, J .). 9

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 10

DECREED that the orders of the district court are AFFIRMED

. 11
Appellant Otis Daniel
, proceeding pro se , sued his former employer, T&M Protections 12

Resources, LLC (“T&M”) under Title VII for hostile work environment . After a bench trial, the 13

district court found for T&M in July 2018 and entered judgment . We affirmed the judgment in 14

Ju ne 2019. Daniel v. T&M Protection Res. LLC , 771 F ed . App’x 123 (2d Cir. 2019) 15
(summary order). In Ju ne and July 2020, Daniel filed motions pursuant to Federal Rule of Civil 16

Procedure 60(b) se eking relief from the July 2018 judgment. 1 The district court denied the 17

Rule 60(b) motions as untimely and without merit

. We assume the parties ’ familiarity with the 18
underlying facts, the procedural history of the case, and the issues on appeal , and re fer to them 19
only as needed to explain our decision to affirm

. 20

We review a district court ’s decision granting or denying a Rule 60(b) motion for abuse of 21

discretion. Boule v. Hutton , 328 F.3d 84, 95 (2d Cir. 2003) . “A district court abuses its 22

discretion if it bases ‘its ruling on an erroneous view of the law or on a clearly erroneous 23

1 The district court construed Daniel’s motion for an extension of time to file a notice of appeal as a timely notice of appeal of var ious motions dating back to 2018. So construed, Daniel’s appeal is timely only as to the d istrict

c ourt’s June 22, 2020, and July 9, 2020 orders, however. Thus, we consider only those orders in this appeal.3 assessment of the evidence.’” Ins. Co. of N. Am. v. Pub. Serv. Mut. Ins. Co. , 609 F.3d 122, 127 1
(2d Cir. 2010) (quoting Transaero, Inc. v. La Fuerza Aerea Boliviana , 162 F.3 d 724, 729 (2d Cir. 2

1998)). 3
The district court did not abuse its discretion by denying Daniel’s motions. Rule 60(b) 4
sets out six different grounds for relief, including “fraud (whether previously called intrinsic or 5
extrinsic), misrepresentation, or mis conduct by an opposing party” and “any other reason that 6
justifies relief.” Fed. R. Civ. P. 60(b)(3), (6). A litigant must file a Rule 60(b) motion premised 7
on fraud or misconduct of the opposing party within a year of entry of the judgment or order. 8

Fe d. R. Civ. P. 60(c) (1) . Neither of Daniel’s 2020 motions was filed by the one

- year deadline. 9
To the extent Daniel premised his motions on other grounds, the motions were also 10
untimely. A Rule 60(b) motion premised on the catch

- all provision of subsection (b)(6) must be 11
filed within a “reasonable time” after the entry of the judgment or order. Fed. R. Civ. P. 60(c) (1)

. 12
“What qualifies as a reasonable time, however, will ordinarily depend largely on the facts of a 13
given case, in cluding the length and circumstances of the delay and the possibility of prejudice to 14
the opposing party.” Montco, Inc. v. Barr ( In re Emergency Beacon Corp.) , 666 F.2d 754, 760 15

(2d Cir. 1981) (citation omitted)

. We have concluded that delays of over a y ear are untimely 16
absent “mitigating circumstances.” Kellogg v. Strack , 269 F.3d 100, 104 (2d Cir. 2001) 17
(per curiam) ( motion untimely when submitted 26 months after entry of final judgment ); see also 18

Truskoski v. ESPN, Inc. , 60 F.3d 74, 77 (2d Cir. 1995) (motion untimely when filed over one year 19
after judgment entered ); cf. In re Emergency Beacon Corp. , 666 F.2d at 760 (motion not untimely 20
despite a 26

- month period between order and motion in view of reasonable explanation for delay 21

and lack of prejudice t o opposing party). 224 Daniel’s June and July 2020 motions were not filed within a reasonable time of the July 1
2018 entry of judgment

. He filed them respectively 23 and 24 months after judgment was entered. 2
Under our precedent, this delay is presumptively u nreasonable , and there were no mitigating 3
circumstances to justify Daniel’s untimeliness

. Daniel also could have moved for relief at an 4
earlier time. For example, he cites his pro bono attorneys ’ misconduct as a reason for that the 5

district court should have granted reconsideration, but he was aware of the alleged misconduct in 6

2018, when the related issues first occurred , and so it does not excuse Daniel’s delay

. Further, 7
T&M would have been prejudiced by the district court’s reconsideration at this late stage. When 8

Daniel filed his motions in 2020
, we had already affirmed the judgment and denied motions for 9
reconsideration and to recall the mandate. The Supreme Court had also denied a writ of certiorari. 10

If the district cou rt granted reconsideration, it would have undermined those decisions. 11

Even if Daniel’s delay c ould have been excused, his 2020 motions lacked merit. Daniel 12
argued that T&M and its attorneys committed fraud and misconduct by offering perjured 13
testimony, ma king false opening statements during trial, and by falsely portraying him as 14
emotionally unstable. But in his district court submissions he did not offer any evidence that 15
T&M’s witnesses or attorneys perjured themselves. Daniel asserts that various T&M witnesses 16

lied. But the fact that their testimony contradicted Daniel’s personal account is not sufficient to 17
show perjury. See United States v. Sanchez , 969 F.2d 1409, 1415 (2d Cir. 1992) (“Differences in 18
recollection alone do not add up to perjury.” (c itation omitted) ). Further, T&M’s opening 19
statements were based on testimony that was later offered at trial. Finally, Daniel cannot show 20
any fraud or misconduct by T&M based on the fact it defended itself in the district court 21
proceedings . T&M had the right to defend itself against Daniel’s allegations. 225 Daniel argues that his pro bono attorneys ignored his evidence and failed to adequately 1
represent him. But general dissatisfaction with one’s counsel is not sufficient to warrant 2

Rule 60(b) relief. I n a civil proceeding, a litigant does not have a right to counsel. See Turner v. 3

Rogers , 564 U.S. 431, 441

– 4 3 (2011) (holding that “the Sixth Amendment does not govern civil 4
cases” and individuals will only have a right to counsel in civil cases when faci ng the possibility 5

of incarceration). T o show entitlement to Rule 60(b) relief based on the inadequate performance 6
of a litigant’s counsel, the litigant “must show that his lawyer abandoned the case and prevented 7
[him] from being heard, either through cou nsel or pro se .” Harris v. United States , 367 F.3d 74, 8

77 (2d Cir. 2004) (discussing Rule 60(b)(6) relief being sought by habeas petitioner) . Daniel did 9
not show this level of abandonment. By Daniel’s own admission, his attorneys worked diligently 10

on th e case and met with him regularly to prepare discovery and for trial. Although Daniel may 11
be dissatisfied with how his case was handled and with the judgment that was obtained , he has not 12
shown that his lawyers physically or constructively abandoned him. Cf. id. at 81. 13
Insofar as Daniel appears to be relitigating his earlier appeal of the judgment, we need not 14
consider those arguments. Daniel has not presented any compelling reason to revisit our prior 15

decision. See Johnson v. Holder , 564 F.3d 95, 99 (2d Cir. 2009) ( “ [W] hen a court has ruled on 16
an issue, that decision should generally be adhered to by that court in subsequent stages in the 17
same case unless cogent and compelling reasons militate otherwise.” (internal quotation marks and 18

citation omitted) )

. 19

206 We have considered all of Daniel ’s remaining arguments and find in them no basis for 1

reversal . Accordingly, we AFFIRM the judgmen t of the district court. 2

3 FOR THE COURT: 4 Catherine O ’ Hagan Wolfe, Clerk of Court 5