United States District Court, D. Connecticut
RULING ON MOTION TO REOPEN
Michael P. Shea, U.S.D.J.
case arises out of the plaintiff's suit against Home
Depot U.S.A., Inc. (“Home Depot”) for injuries he
allegedly suffered at one of the defendant's stores.
Pro se plaintiff Ricky Davis brought suit against
Home Depot for injuries he suffered while trying to move
plywood into his van with the help of a Home Depot employee.
(ECF No. 1). The parties reported the case settled and filed
a subsequent stipulation of dismissal on April 14, 2017. (ECF
No. 63). A few weeks later, the plaintiff filed an
“amended complaint” attempting to set aside the
settlement. (ECF No. 65). He filed another “amended
complaint” attempting to achieve the same purpose in
May of 2017. (ECF No. 66). I construed the amended complaints
as a motion to reopen the case under Fed.R.Civ.P. 60. (ECF
No. 68). For the reasons set forth below, I deny the
plaintiff's motion to reopen this case.
March 21, 2017, the parties appeared before Magistrate Judge
Martinez for a settlement conference and initially agreed to
settle the case for $25, 000. (ECF No. 67 at 3-4). The
plaintiff withdrew from this agreement, however, after
counsel for Home Depot inquired into whether he had a
Medicare or Medicaid lien against him. (Id. at
5-10). Judge Martinez ordered the parties to “submit a
joint written status report” to her within the next
three days on the status of the parties' settlement
talks. (ECF No. 58). Counsel for Home Depot submitted a joint
status report, dated March 24, 2017, stating “that
Plaintiff had represented to [counsel] that he had confirmed
there were no outstanding medical liens with regard to the
treatment he had received following the alleged incident, and
that he agreed to accept the $25, 000 settlement
offer.” (ECF No. 73-1, Affidavit of Caroline B. Lapish,
Esq. (“Lapish Aff.”) at ¶ 17).
counsel promptly sent a “Settlement and Release”
(“Settlement”) memorializing the agreed upon
terms to the plaintiff. (Id. at ¶ 25). The
plaintiff executed and returned the settlement but failed to
have it witnessed. (Id. at ¶ 26). On March 29,
2017, defense counsel overnighted another copy of the
Settlement to the plaintiff. (Id. at ¶ 27). The
plaintiff again executed and returned the Settlement, this
time with his wife, Sherry Williams, signing as witness.
(Id. at ¶ 29; ECF No. 73-8, Exhibit H,
Settlement Agreement and Release (“Settlement”)).
Defense counsel subsequently alerted Judge Martinez to the
executed Settlement in a joint status report on March 29,
2017. (Lapish Aff. at ¶ 31).
April 6, 2017, defense counsel overnighted the settlement
check to the plaintiff, along with a draft Stipulation of
Dismissal for his review and approval. (Id. at
¶ 39). Defense counsel noted in her letter that the
plaintiff “was required, under the terms of the
[Settlement], to file a Stipulation of Dismissal within three
days of receiving the settlement proceeds.”
(Id. at ¶ 39). The plaintiff deposited the
settlement check into his bank account on April 7, 2017, and
the check cleared on April 10, 2017. (Id. at ¶
47; ECF No. 73-15, Exhibit O). By April 11, 2017, however,
the plaintiff had yet to return or comment upon the
Stipulation of Dismissal. (Lapish Aff. At ¶ 49). On
April 14, defense counsel avers that the plaintiff
“reviewed and approved the Stipulation of
Dismissal” and granted her “permission to file
the same with the Court.” (Id. at ¶ 51;
ECF No. 73-17 at 1). Defense counsel subsequently filed the
Stipulation of Dismissal on the docket on behalf of both
parties, and the Court dismissed the case with prejudice.
(ECF No. 63; ECF No. 64).
April 25, 2017, the plaintiff filed a document on the docket
labeled “Second Amended Complaint against Home Depot,
Adler Pollock & Sheehan P.C.” (ECF No. 66). The
plaintiff advances two claims in his amended complaint. The
first claim contends that defense counsel Lapish
“failed to file pro hac vice [sic] and negotiated a
settlement without a license.” (Id. at 3). The
plaintiff's second claim avers that defense counsel
Lapish “indangered [sic] the psychological welfair
[sic] of a minor with reckless testimoney [sic] without a
license in her efferts [sic] to secure a [sic] unfair
settlement without filing for pro hac vice [sic]. . .
.” (Id.). The gravamen of this claim appears
to concern an alleged remark uttered by Ms. Lapish off the
record stating that the plaintiff was under the influence of
cocaine at the time of his accident. (Id.). The
plaintiff claims that this remark from Ms. Lapish put him
under duress to settle the case for an unfair amount.
(Id.). The plaintiff's request for relief asks
the Court to “[p]lease reopen this case, and reverse
this [miscarriage] of justice. . . .” (Id. at
4). On May 31, 2017, the plaintiff filed a document entitled
“Second Amended Complaint against Home Depot, Adler
Pollock & Sheehan P.C.” (ECF No. 66). This
complaint reiterates the same claims as the previous one; the
only major difference is that the May complaint requests
$300, 000 in relief. (ECF No. 66).
Court issued an order to show cause in July of 2017
construing the plaintiff's complaints as “a motion
to reopen the case under Fed.R.Civ.P. 60” and requiring
the defendant to “show cause on or before July 27, 2017
why the Court should not reopen the case.” (ECF No.
68). The defendant subsequently filed a timely response. (ECF
No. 73). On August 16, 2017, the plaintiff filed yet another
“Amended Complaint” on the docket. (ECF No. 77).
This complaint, however, appears to be a reply by the
plaintiff to the defendant's response to the Court's
order to show cause. Later, in response to an order to show
cause issued by Magistrate Judge Martinez regarding the
potential unsealing of the transcript of a portion of the
settlement conference, the plaintiff filed another document,
(ECF No. 84), in which he repeats arguments similar to those
set forth in his “complaints.”
60(b) allows a court to set aside a judgment or order for the
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(1-6). “A motion for relief from
judgment is generally not favored and is properly granted
only upon a showing of exceptional circumstances.”
United States v. International Broth. of Teamsters,
247 F.3d 370, 391 (2d Cir. 2001). In general, “courts
require that the evidence in support of [a Rule 60(b) motion]
be highly convincing, that a party show good cause for the
failure to act sooner, and that no undue hardship be imposed
on other parties.” Kotlicky v. United States Fid.
& Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987) (internal
quotation marks and citations omitted). Relief from judgment
under Rule 60(b) “is only warranted under
‘extraordinary circumstances, ' or to prevent
‘extreme and undue hardship.'” Nance v.
NYPD, 31 Fed.Appx. 30');">31 Fed.Appx. 30, 33 (2d Cir. 2002) (quoting
DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir.
1994). The “burden of proof is on the party seeking
relief from judgment, ” in this case Davis.
International Broth. of Teamsters, 247 F.3d at 391.