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 NOTATION “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 27th day of September, two thousand twenty-two.

PRESENT:

REENA RAGGI,

RICHARD 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 DEFENDANTS-APPELLEES: Jeremy C. Toth, Erie County 

Attorney’s Office, Buffalo, 

NY.
1 Appeal from an order of the United States District Court for the Western District of New 

2 York (Foschio, M.J.).

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

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

5 Appellant David Dale, a former attorney proceeding pro se, sued three law enforcement 

6 officers under 42 U.S.C. § 1983 for false arrest, false imprisonment, and malicious prosecution in 

7 connection with an obstruction of governmental administration charge based on allegations that 

Dale evaded service of traffic citations that were being reissued for a second time.1 8 Through 

9 counsel, Dale consented to proceed before a magistrate judge, who granted summary judgment to 

10 the defendants, finding that their actions were supported by probable cause. Dale now appeals 

11 the court’s denial of his second post-judgment motion, in which he sought to withdraw consent to 

12 proceed before a magistrate judge and to challenge the magistrate judge’s jurisdiction 

13 retroactively, to discharge counsel and to proceed pro se, and either an extension of time to appeal 

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

Procedure 60(b)(5) and (6).2 15 The Court assumes the parties’ familiarity with the case.

16 A. Motion to Relieve Counsel and Proceed Pro Se in the District Court

17 Dale argues that the district court erred in denying his motion to relieve counsel and to 

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

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 untimely as to the underlying summary judgment. Accordingly, the Court lacks 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

1 because no remand is required. As to the prior proceedings, any error in declining to relieve 

2 counsel was harmless because the district court did not decline to consider any document filed pro 

3 se.

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

5 Dale concedes that his attorney validly consented on his behalf to proceed before a 

6 magistrate judge pursuant to 28 U.S.C. § 636(c). Consent to the jurisdiction of a magistrate judge 

7 is valid if “all parties consent.” Fed. R. Civ. P. 73(a). “Once a case is referred to a magistrate 

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

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

10 Fellman v. Fireman’s Fund Ins. Co., 735 F.2d 55, 58 (2d Cir. 1984) (quoting 28 U.S.C. § 636(c)) 

11 (emphasis omitted). This Court has assumed that magistrate judges have jurisdiction to adjudicate 

12 motions to withdraw consent to their jurisdiction, see McCarthy v. Bronson, 906 F.2d 835, 838–

13 39 (2d Cir. 1990), aff’d, 500 U.S. 136 (1991), and Dale does not urge otherwise on this appeal.

14 Rather, Dale maintains that a change in representation—here from counseled to pro se—

15 terminates consent, perhaps even retroactively. Dale cites no authority to support his argument, 

16 which would permit a party to evade the “extraordinary circumstances” standard by dismissing 

17 counsel whenever proceedings before a magistrate judge were not running in his favor and, 

18 thereby, to obtain an automatic re-do of the proceedings before a new judge. Precedent defeats 

19 Dale’s argument because he is undeniably the “party” that initially gave consent through counsel 

20 to proceed before the magistrate judge. See Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 

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

22 Withrow, 538 U.S. 580, 590 (2003) (holding that consent to proceed before magistrate judge may 
4

1 be inferred from conduct, in part to “check[] the risk of gamesmanship by depriving parties of the 

2 luxury of waiting for the outcome before denying the magistrate judge’s authority”). In short, a 

3 change in representation—even from counseled to pro se—is not an “extraordinary circumstance”

4 supporting withdrawal of consent. 28 U.S.C. § 636(c). 

5 Dale also asserts that he wishes to proceed before a district court judge because he believes 

6 a district court judge would be more likely to rule in his favor, but adverse rulings are an inherent 

7 part of adversary proceedings, not “extraordinary” events. Id.

8 C. Rule 60(b) Motion

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

10 Brien, 588 F.3d 158, 175 (2d Cir. 2009). Rule 60(b) is “a mechanism for ‘extraordinary judicial 

11 relief’ invoked only if the moving party demonstrates ‘exceptional circumstances.’” Ruotolo v. 

12 City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Paddington Partners v. Bouchard,

13 34 F.3d 1132, 1142 (2d Cir. 1994)). Rule 60(b)(5) provides that the district court may grant relief 

14 from a final judgment where “the judgment has been satisfied, released, or discharged; it is based 

15 on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer 

16 equitable.” Fed. R. Civ. P. 60(b)(5). The residual clause, Rule 60(b)(6), provides a remedy for 

17 “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). 

18 Dale offers two grounds for Rule 60(b) relief, neither of which is availing. First, Dale 

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

20 Dists. 2020), reflects an intervening change in law undermining both the defendants’ authority to 

21 reissue traffic citations and (by extension) the probable cause to charge Dale with obstruction for 

22 evading service of those citations. See Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL 
5

1 Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (reconsideration “should be granted only when 

2 the defendant identifies an intervening change of controlling law, the availability of new evidence, 

3 or the need to correct a clear error or prevent manifest injustice” (internal quotation marks 

4 omitted)). We disagree.

5 In Zelaya, the Second Department’s Appellate Term for the 9th and 10th Districts reversed 

6 a conviction on reissued charges, noting that it “has consistently reversed judgments of conviction, 

7 as a matter of discretion in the interest of justice, where, absent special circumstances warranting 

8 the reprosecution of a defendant, the People proceeded to trial on a refiled accusatory instrument, 

9 after an earlier simplified traffic information, charging the same offenses based upon the same 

10 incident, had been dismissed for failure to serve the defendant with a requested supporting 

11 deposition.” 2020 N.Y. Slip Op. 51276(U). This practice appears to have been, at best, a matter 

12 of discretion rather than law because in People v. Nuccio, 78 N.Y.2d 102, 105–06 (1991), the New 

13 York Court of Appeals held that an offense may be recharged after the dismissal of a simplified 

14 information based on the same incident for failure to timely serve a supporting deposition. In any 

15 event, Zelaya cannot be characterized as an intervening development in the law because, as Zelaya

16 acknowledges, the policy it referenced dates back to at least the 1990s. Moreover, Zelaya is no 

17 longer good law. See People v. Epakchi, 37 N.Y.3d 39, 48 (2021) (holding, in an appeal from a 

18 decision upon which Zelaya relied—and mirrored its own relevant holding—that the Appellate 

19 Term lacks authority to promulgate a rule requiring “special circumstances” for traffic-offense 

20 reprosecutions “that is inconsistent with Nuccio and the courts’ authority under the Criminal 

21 Procedure Law”). 

22 Second, Dale argues that he was entitled to Rule 60 relief because his former attorney was 
6

1 ineffective in failing to file a timely notice of appeal from the judgment in this case. To the extent 

2 that circumstances resulting in the untimely filing of a notice of appeal could constitute 

3 “exceptional circumstances” warranting relief under Rule 60(b), they do not here. Paddington 

4 Partners, 34 F.3d at 1142. Dale affirmed that he knew about the summary judgment within six 

5 days of its entry, well before the time to appeal expired, and that he actively discussed with his 

6 attorney whether to appeal. He does not claim to have attempted to file a timely notice of appeal 

7 or instructed his attorney to do so. 

8 D. Leave to File Late Notice of Appeal from Judgment

9 Finally, although the magistrate judge did not expressly address Dale’s renewed request 

10 for leave to file a late notice of appeal, this Court may affirm on any ground with support in the 

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

12 1993).

13 Dale’s February 2021 motion sought an extension of time to appeal the October 2020 

judgment, but his motion was filed well after the 60-day period expired on December 21, 2020.3 14 

15 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 

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

17 cause, and the magistrate judge reasonably held that Dale failed to demonstrate “excusable 

18 neglect” warranting an extension for the same reasons that Dale was not entitled to Rule 60(b) 

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

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

3 Dale’s first motion for an extension, not presently before the Court, was also untimely.
7

1 an equitable one, taking account of all relevant circumstances surrounding the party’s omission,” 

2 including whether “the reason for the delay . . . was within the reasonable control of the movant” 

3 (quotation marks omitted)); Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d 

4 Cir. 1997) (observing that “inadvertence, ignorance of the rules, or mistakes construing the rules 

5 do not usually constitute excusable neglect” (quotation marks omitted)).

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

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

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk of Court