21

- 1602

- cv Dale v. Biegasiewicz



## 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 (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING 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, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27 th da y of September , two thousand twenty

- two

.

PRESENT: REENA RAGGI , RIC HARD C. WESLEY , WILLIAM J. NARDINI , Circuit Judges.

______________________________ ___ ____ ___ ___ __ David Dale , Plaintiff

- Appellant,

v. 21

- 1602

Deputy Joseph Raczynski, Deputy Warren Luick, Deputy Simon Biegasiewicz , Defendants

- Appellees

.

___________________________________________

FOR PLAINTIFF

- APPELLANT : David Dale
, pro se , Buffalo, NY

.
FOR DEFENDANT S

- APPELLEE S : Jeremy C. Toth, Erie County Attorney’s Office, Buffalo, NY

.Appeal from a n order of the United States District Court for the Western District of New 1

York ( Foschio
, M. J .). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the May 28, 2021
, order of the district court is AFFIRMED

. 4
Appellant David Dale
, a former at torney proceeding pro se , sued three law enforcement 5
officers under 42 U.S.C. § 1983 for false arrest, false imprisonment, and malicious prosecution in 6
connection with an obstruction of governmental administration charge based on allegations that 7

Dale evad ed service of traffic citations that were being reissued for a second time. 1 Through 8
counsel, Dale consented to proceed before a magistrate judge, who granted summary judgment to 9

the defendants, finding that their actions were supported by probable cause . Dale now appeals 10
the court’s denial of his second post

- judgment motion, in which he sought to withdraw consent to 11
proceed before a magistrate judge and to challenge the magistrate judge’s jurisdiction 12
retroactively, to discharge counsel and to proceed p ro se , and either an extension of time to appeal 13

the summary judgment award or relief from that judgment pursuant to Federal Rule of Civil 14

Procedure 60(b)(5) and (6). 2 The Court assumes the parties ’ familiarity with the case

. 15

A. Motion to Relieve Counsel and Proceed Pro Se in the District Court 16
Dale argues that the district court erred in denying his motion to relieve counsel and to 17
proceed pro se

. To the extent that Dale wishes to proceed pro se on remand, this issue is moot 18

1 Because of his legal training , Dale is not entitled to liberal construction of his pro se filings. See Holtz v. Rockefeller & Co., Inc. , 258 F.3d 62, 82 n.4 (2d Cir. 2001).

2 Dale’s notice of appeal specified that he intended to appeal only this May 2021 order ; the notice was untime ly as to the underlying summary judgment. Accordingly, the Court lack s jurisdiction to review that judgment and here considers only the May 2021 order

. See Gonzalez v. Thaler
, 565 U.S. 134, 147 (2012) ( holding content requirements for notice of appeal in Fed. R. App. P. 3(c)(1) are jurisdictional); Bowles v. Russell , 551 U.S. 205, 208

– 09 (2007) ( holding timing rules in Fed. R. App. P. 4(a)(1) are jurisdictional).3 bec ause no remand is required. As to the prior proceedings, any error in declining to relieve 1
counsel was harmless because the district court did not decline to consider any document filed pro 2

se

. 3

B

. Magistrate Judge’s Jurisdiction and Motion to Withdraw Consent 4

Dale concedes that his attorney validly consented on his behalf to proceed before a 5
magistrate judge pursuant to 28 U.S.C. § 636(c)

. Consent to the jurisdiction of a magistrate judge 6
is valid if “all parties consent.” Fed. R. Civ. P. 73( a). “Once a case is referred to a magistrate 7

under section 636(c), the reference can be withdrawn only by the district court, and only ‘for good 8

cause shown on its own motion, or under extraordinary circumstances shown by any party.’” 9

Fellman v. Fireman ’ s Fund Ins. Co. , 735 F.2d 55, 58 (2d Cir. 1984) (quoting 28 U.S.C. § 636(c)) 10
(emphasis omitted). This Court has assumed that m agistrate judges have jurisdiction to adjudicate 11
motions to withdraw consent to their jurisdiction
, s ee McCarthy v. Bronson , 906 F.2d 835, 83 8

– 12

3 9 (2d Cir. 1990)
, aff’ d
, 500 U.S. 136 (1991) , and Dale does not urge otherwise on this appeal. 13

Rather, Dale maintains that a change in representation

— here from counseled to pro se

— 14

terminate s consent, perhaps even retroactively

. Dale cites no authority to support his argument, 15
which would permit a party to evade the “ extraordinary circumstances ” standard by dismissing 16

counsel whenever proceedings before a magistrate judge were not running in his favor and, 17
thereby, to obtain an automatic re

- do of the proceedings before a new judge. Precedent defeats 18
Dale’s argument because he is undeniably the “party” that initially gave consent through counsel 19
to proceed before the magistrate judge

. See Lin k v. Wabash R. R. Co. , 370 U.S. 626, 633

– 34 20
(1962) ( holding litigant bound by “ acts or omissions of []his freely selected agent” ); c f. Roell v. 21

Withrow , 538 U.S. 580, 590 (2003) ( holding that consent to proceed before magistrate judge may 224 be inferred from conduct, in part to “ check [] the risk of gamesmanship by depriving parties of the 1
luxury of waiting for the outcome before denying the magistrate judge ’ s authority”). In short, a 2
change in representation

— even from counseled to pro se

— is not an “extraordinary circumstance” 3
supporting withdrawal of consent. 28 U.S.C. § 636(c). 4

Dale also asserts that he wishes to proceed before a district court judge because he believes 5
a district court judge would be more likely to rule in his favor, but adverse rulings are an inherent 6
part of adver sary proceedings, not “extraordinary” events. Id

. 7

C

. Rule 60(b) Motion 8

We review the denial of Rule 60 relief for abuse of discretion. United Airlines, Inc. v. 9

Brien , 588 F.3d 158, 175 (2d Cir. 2009). Rule 60(b) is “a mechanism for ‘extraordinary judicial 10
relief’ invoked only if the moving party demonstrates ‘exceptional circumstances.’” Ruotolo v. 11
City of New York , 514 F.3d 184, 191 (2d Cir. 2008) (quoting Paddington Partners v. Bouchard, 12

34 F.3d 1132 , 1142 (2d Cir. 1994)). Rule 60(b)(5) provides that the district court may grant relief 13
from a final judgment where “the judgment has been satisfied, released
, or discharged; it is based 14
on an earlier judgment that has been reversed or vacated; or applyin g it prospectively is no longer 15
equitable.” Fed. R. Civ. P. 60(b)(5) . The residual clause, Rule 60(b)(6), provides a remedy for 16
“any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). 17
Dale offers two grounds for Rule 60(b) relief, neither of which is availing. First, Dale 18

asserts that People v. Zelaya
, 2020 N.Y. Slip Op. 51276(U) (N.Y. App. Term. 9th & 10th Jud. 19

Dists. 2 020)
, reflects an intervening change in law undermining both the defendants’ authority to 20

reissu e traffic citations and (by extension) the probable cause to charge Dale with obstruction for 21
evading service of those citations. See Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL 225 Irrevocable Trust , 729 F.3d 99, 104 (2d Cir. 2013) (reconsideration “should be granted only when 1
the defendant identifies an intervening change of controlling law, the availability of new evidence, 2
or the need to correct a clear error or prevent manifest injustice” (internal quotation marks 3

omi tted)). We disagree. 4

In Zelaya , the Second Department’s Appellate Term for the 9th and 10th Districts reversed 5
a conviction on reissued charges, noting that it “ has consistently reversed judgments of conviction, 6

as a matter of discretion in the interest of justice , where, absent special circumstances warr anting 7
the reprosecution of a defendant, the People proceeded to trial on a refiled accusatory instrument, 8
after an earlier simplified traffic information, charging the same offenses based upon the same 9

i ncident, had been dismissed for failure to serve the defendant with a requested supporting 10
deposition.” 2020 N.Y. Slip Op. 51276(U)

. This practice appears to have been, at best, a matter 11

of discretion rather than law because in People v. Nuccio , 78 N.Y.2 d 102, 105

– 06 (1991), the New 12
York Court of Appeals held that an offense may be recharged after the dismissal of a simplified 13
information based on the same incident for failure to timely serve a supporting deposition. In any 14

event, Zelaya cannot be characterized as an intervening development in the law because, a s Zelaya 15
acknowledges
, the policy it referenced dat es back to at least the 1990s . Moreover, Zelaya is no 16
longer good law. See People v. Epakchi , 37 N.Y.3d 39, 48 (2021) (holding, in an appeal from a 17
decision upon which Zelaya relied

— and mirrored its own relevant holding

— that the Appellate 18
Term lacks authority to promulgate a rule requiring “special circumstances” for traffic

- offense 19
reprosecutions “that is inconsistent with Nuccio and the courts’ authority under the Criminal 20
Procedure Law”). 21
Second, Dale argues that he was entitled to Rule 60 relief because his former attorney was 226 ineffective in fail ing to file a timely notice of appeal from the judgment in this case

. To the exte nt 1
that circumstances resulting in the untimely filing of a notice of appeal could constitute 2
“exceptional circumstances” warranting relief under Rule 60(b), they do not here. Paddington 3

Partners , 34 F.3d at 1142. Dale affirmed that he knew about the summary judgment within six 4
days of its entry, well before the time to appeal expired
, and that he actively discussed with his 5

attorney whether to appeal

. H e does not claim to have attempted to file a timely notice of appeal 6
or instructed his attorney to do so

. 7

D

. Leave to File Late Notice of Appeal from Judgment 8
Finally, a lthough the magistrate judge did not expressly address Dale’s renewed request 9
for leave to file a late notice of appeal, this Court may affirm on a ny ground with support in the 10

record, which here affords no basis for remand. See Leon v. Murphy , 988 F.2d 303, 308 (2d Cir. 11
1993)

. 12

Dale ’s February 2021 motion sought an extension of time to appeal the October 2020 13
judgment, but his motion was filed well after the 60

- day period expired on December 21, 2020. 3 14
Fed. R. App. P. 4(a)(5)(A)(i) ; Fed. R. App. P 4(a)(1)(A) ; see also 28 U.S.C. § 2107(a), (c). Even 15

if t he motion had been timely, it would have failed, as Dale did not argue that there was good 16

cause, and the magistrate judge reasonably held that Dale failed to demonstrat e “excusable 17
neglect” warranting an extension for the same reasons that Dale was not en titled to Rule 60(b) 18

relief. Fed. R. App. P. 4(a)(5)(A)(ii) ; see Silivanch v. Celebrity Cruises, Inc. , 333 F.3d 355, 366

– 19
67 (2d Cir. 2003) (explaining that “excusable neglect” is an “elastic concept . . . that is at bottom 20

3 Dale’s first motion for an extension, not presently before the Court, was also untimely.7 an equitable one, taking account of all relevant circumstances surrounding the party’s omission,” 1
including whether “the reason f or the delay . . . was within the reasonable control of the movant” 2
(quotation marks omitted)) ; Canfield v. Van Atta Buick/GMC Truck, Inc. , 127 F.3d 248, 250 ( 2d 3
Cir. 1997) (observing that “inadvertence, ignorance of the rules, or mistakes construing the rules 4
do not usually constitute excusable neglect” (quotation marks omitted)). 5

The Court has considered all of Dale’s remaining arguments and find s them to be without 6

merit. The May 28, 2021
, order of the district court is AFFIRMED

. 7

FOR THE COURT: 8 Catherine O ’ Hagan Wolfe, Clerk of Court 9