Chukwuma Azubuko v. Bunker Hill Community College , 442 F. App'x 643 ( 2011 )

DLD-262 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2728
___________
CHUKWUMA E. AZUBUKO,
Appellant
v.
BUNKER HILL COMMUNITY COLLEGE
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-05-cv-00945)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 11, 2011
Before: FISHER, BARRY and VAN ANTWERPEN Circuit Judges.
(Filed: August 19, 2011 )
_________
OPINION
_________
PER CURIAM
Pro se appellant Chukwuma Azubuko appeals the District Court’s order denying
his motion under Rule 60(b) of the Federal Rules of Civil Procedure. We have
jurisdiction pursuant to 28 U.S.C. § 1291, Binker v. Pennsylvania, 977 F.2d 738, 744 (3d
Cir. 1992), and review the District Court’s order for abuse of discretion, Reform Party of
Allegheny Cnty. v. Allegheny Cnty. Dep’t of Elections, 174 F.3d 305, 311 (3d Cir.
1999). For the reasons set forth below, we will summarily affirm the District Court’s
judgment.
Azubuko filed his complaint in this case in 2005. At the same time, he sought
permission to proceed in forma pauperis (IFP). The District Court denied the IFP
application on the ground that Azubuko, who was then working two jobs, could afford to
pay the costs involved in litigating his action. The Court informed Azubuko that if he
wished to proceed with his complaint, he was required to pay the filing fee within 14
days. Azubuko did not pay the filing fee within that period, and on August 2, 2005, the
District Court dismissed the complaint.
On February 16, 2011, Azubuko filed a motion to reopen his case under Rule
60(b). The motion expressed Azubuko’s displeasure with the District Court’s ruling, but
did not present any meaningful legal arguments. See, e.g., Mot. at 1 (arguing that
Azubuko had been “knowingly condemned to Chernobyl-like nuclear weapon
miscarriage of justice hence the head”). The District Court denied the motion,
concluding that it had not been filed within a “reasonable time” of the order dismissing
the complaint. See Rule 60(c)(1). Azubuko then filed a timely notice of appeal to this
Court.
We discern no error in the District Court’s ruling. In his motion, Azubuko did not
invoke any particular subsection of Rule 60(b), instead framing his motion as, generally,
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arising under Rule 60(b). However, because he filed his motion well more than one year
after the District Court dismissed his complaint, he cannot proceed under subsection (1),
(2), or (3). See Rule 60(c)(1). Similarly, because Azubuko has provided no explanation
for his delay in filing, we agree with the District Court that he has not filed his motion
within a reasonable time of the order that he seeks to challenge. See Moolenaar v. Gov’t
of V.I., 822 F.2d 1342, 1348 (3d Cir. 1987) (holding that two-year delay was not
reasonable). Therefore, he is likewise unable to proceed under Rule 60(b)(5) or (b)(6).
See Rule 60(c)(1). Finally, although the reasonable-time requirement does not apply to a
motion to reopen a void judgment under Rule 60(b)(4), see United States v. One Toshiba
Color TV, 213 F.3d 147, 157 (3d Cir. 2000), a judgment is void only “if the court that
rendered it lacked jurisdiction of the subject matter or the parties or entered a decree
which is not within the powers granted to it by the law,” Marshall v. Bd. of Educ., 575
F.2d 417, 422 (3d Cir. 1978). Azubuko has not argued that the District Court lacked
jurisdiction over his complaint or acted beyond its legal authority; rather, he wishes to
proceed with his action in the District Court and claims that the Court committed legal
error in dismissing his complaint.
Accordingly, we will summarily affirm the District Court’s order. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
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