Gimbi v. Fairbanks Cap Corp , 207 F. App'x 143 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-6-2006
Gimbi v. Fairbanks Cap Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3564
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"Gimbi v. Fairbanks Cap Corp" (2006). 2006 Decisions. Paper 124.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3564
SHARON GIMBI; *CLARENCE GIMBI,
Appellants
v.
FAIRBANK CAPITAL CORP.
*Dismissed per Clerk's Order of 10/03/06
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 01-cv-1992
(Honorable A. Richard Caputo)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 28, 2006
No. 06-4432
IN RE: SHARON GIMBI,
Petitioner
On Petition for a Writ of Mandamus from the
United States District Court for the
Middle District of Pennsylvania
Related to D.C. Civil Action No. 01-cv-1992
Submitted Under Rule 21, Fed. R. App. P.
November 28, 2006
Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed: December 6, 2006)
OPINION OF THE COURT
PER CURIAM.
Sharon Gimbi appeals the District Court’s order denying her motion filed pursuant
to Fed. R. Civ. P. 60(b). Gimbi filed the motion over four years after the District Court
entered its order dismissing her complaint. The District Court dismissed the Rule 60(b)
motion as untimely. Gimbi filed a timely notice of appeal. She has also filed a petition
for a writ of mandamus.
We have jurisdiction under 28 U.S.C. § 1291. The denial of a Rule 60(b) motion
is an appealable order; however, the scope of the appeal does not include the underlying
judgment. Browder v. Director of Dep’t of Corrections, 434 U.S. 257, 263 n.7 (1978).
Disposition of a motion under Rule 60(b) is within the discretion of the District Court,
and we review the ruling only for an abuse of that discretion. Hodge v. Hodge, 621 F.2d
590, 593 (3rd Cir. 1980). Under Rule 60(b), a party can seek relief from judgment based
on the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been discovered
in time to move for a new trial under Rule 59(b); (3) fraud (whether
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heretofore denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (6) any
other reason justifying relief from the operation of the judgment.
In her motion, Gimbi argued for relief under Rule 60(b) based on fraud and obstruction of
justice. Rule 60(b) provides that a motion made under reason (3) may not be filed more
than a year after the judgment. Gimbi’s Rule 60(b) motion was filed well beyond a year
after the judgment. Thus, the District Court did not abuse its discretion in dismissing the
motion.
Gimbi also argues on appeal that Judge Caputo should have recused himself
because her expert witness is Michael Shemonsky. In March 2005, Judge Caputo entered
an order recusing himself from any matter involving Shemonsky. However, Gimbi did
not mention any involvement of Shemonsky in the Rule 60(b) motion or brief. Thus, the
District Court was not given notice that this matter allegedly involved Shemonsky. Nor
did Gimbi request that Judge Caputo recuse himself.
For the above reasons, as well as those set forth by the District Court, we will
affirm the District Court’s judgment. Gimbi’s motion to file an expert report and her
motion to stay inspection of the house are denied. Gimbi’s petition for a writ of
mandamus is denied. Her motion to compel the District Court to convene a grand jury is
denied. There is no federal right to require the government to initiate criminal
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proceedings. Linda R.S. v. Roland D., 410 U.S. 614, 619 (1973); United States v.
Berrigan, 482 F.2d 171, 173- 74 (3d Cir. 1973).
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