Bezalel Grossberger v. Patrick Ruane , 491 F. App'x 309 ( 2012 )

DLD-248 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2725
___________
BEZALEL GROSSBERGER,
a/k/a BEN GROSS,
Appellant
v.
PATRICK RUANE; MARION RUANE
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 11-cv-03728)
District Judge: Honorable Ann E. Thompson
____________________________________
Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
10.6
August 2, 2012
Before: AMBRO, JORDAN and VANASKIE, Circuit Judges
(Opinion filed: August 10, 2012)
_________
OPINION
_________
PER CURIAM
Bezalel Grossberger, proceeding pro se, appeals from an order of the District
Court entered in his lawsuit against Patrick and Marion Ruane. For the reasons that
follow, we will summarily affirm.
Grossberger commenced a pro se civil rights action against the Ruanes related to
an unconsummated property transaction and seeking relief pursuant to 42 U.S.C. §§
1981, 1982, and 1985. The Ruanes moved to dismiss the complaint, arguing that
Grossberger’s claims were barred by the applicable statutes of limitations. They also
maintained that Grossberger had failed to state a claim upon which relief could be
granted. The District Court agreed with the Ruanes and dismissed the complaint. See
generally Grossberger v. Ruane, No. 11–cv–3728, 2011 WL 6257178 (D.N.J. Dec. 14,
2011). Grossberger filed a motion to amend the complaint the same day and later filed a
brief in support of the motion. This motion and its supplement, in addition to seeking to
assert a claim of fraudulent conveyance, arguably challenged the dismissal of his
complaint.
On March 27, 2012, the District Court denied the motion, again finding that the
statute of limitations barred the claims of discrimination. The Court also found that
permitting an amended complaint would be futile. On April 25, 2012, Grossberger filed
a motion for reconsideration, which, on May 8, 2012, the District Court denied as
untimely filed. Three days later Grossberger moved to reinstate the complaint. The
District Court denied this motion as well, finding that it was another attempt to get
reconsideration of arguments already presented. This appeal followed.
Although Grossberger specifies only the latest order of the District Court on his
notice of appeal, his subsequent filings include argument and discussion that could be
interpreted as an attempt to appeal additional orders of the District Court. In an
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abundance of caution, we will address the scope of this appeal. We have jurisdiction to
review the order denying the motion to reinstate the complaint, but we do not review the
District Court’s orders entered December 14, 2011; March 27, 2012; and May 8, 2012,
due to a lack of appellate jurisdiction. The District Court dismissed the complaint on
December 14, 2011. Grossberger filed his motion to amend the complaint that same day
and later filed a brief, which contained some argument on the merits. Arguably, this
motion and its brief could be construed as a request for reconsideration or relief from
judgment, which would toll the time for appeal pending the District Court’s disposition of
the motion. Fed. R. App. P. 4(a)(4).
In an order entered March 27, 2012, the District Court denied Grossberger’s
motion, and the time for appeal commenced. See Fed. R. App. P. 4(a)(4) (time for appeal
runs from entry of order disposing of Rule 4(a)(4) tolling motion). Grossberger’s request
for reconsideration in April did not further toll the time for appeal. While a post-
judgment motion filed within ten days tolls the time in which to file an appeal from the
underlying judgment, a second motion to reconsider does not. See Aybar v. Crispin-
Reyes, 118 F.3d 10, 13-14 (1st Cir. 1997) (subsequent motion for reconsideration served
more than ten days after entry of original judgment does not toll time for appeal from
original judgment) (citing cases). Moreover, this motion was untimely as to the form of
relief requested, within the meaning of Appellate Rule 4(a)(4)(A), and therefore could not
toll the 30-day appeal period.
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The notice of appeal was, however, timely filed with respect to the denial of the
motion to reinstate the complaint. We thus have jurisdiction to review that later order
under 28 U.S.C. § 1291. See Baker v. United States, 670 F.3d 448, 462 (3d Cir. 2012)
(“Although we do not have jurisdiction over the Dismissal Order, we do have jurisdiction
over the District Court’s orders denying [the appellant’s] motions for reconsideration
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because [he] filed a timely notice of appeal as to those orders.”).
The District Court treated this filing as a motion for reconsideration, but it might
better be viewed as a motion under Rule 60(b). Our standard of review for a denial of a
Rule 60(b) motion is abuse of discretion. See Budget Blinds, Inc. v. White, 536 F.3d
244, 251 (3d Cir. 2008). Whether viewed as a filing under Rule 59(e) or 60(b), we agree
with the District Court that Grossberger has presented no basis for granting relief from
the prior judgment. The motion does not demonstrate any clearly erroneous findings of
fact, erroneous conclusions of law, or misapplications of law to fact. See Reform Party
of Allegheny County v. Allegheny County Dep’t of Elections, 174 F.3d 305, 311 (3d Cir.
1999) (en banc). At best, Grossberger’s motion demonstrates his dissatisfaction with the
District Court’s decision. Rule 60(b) does not provide relief from a judgment for such a
reason, and the District Court did not abuse its discretion in denying this post-judgment
motion.
1
In their response to the notice of possible summary action, the appellees argue
that the appeal should be dismissed as untimely because it was filed 31 days after the
order in question was filed. The time for filing a notice of appeal, however, runs from the
4
Accordingly, because the appeal does not present a substantial question, we will
summarily affirm the District Court’s May 14, 2012 order. See 3d Cir. L.A.R. 27.4;
I.O.P. 10.6.
date the order was entered, not when it was filed. See Fed. R. App. P. 4(a)(1).
Grossberger’s appeal was entered on the 30th day.
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