United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE
Memorandum Opinion and Order entered on September 17, 2015.
the Court dismissed Jeremy Gerald as a party to this action
because he tailed to keep the Court informed of his current
address. (ECF Nos. 18. 19.) On November 16. 2017, the Court
received from Gerald a motion seeking relief under Federal
Rule of Civil Procedure 60. (ECF No. 30.) Gerald does not
explicitly state under which section of Federal Rule of Civil
Procedure 60 he brings his motion. However, because Gerald
requests that the Court grant him relief from a final
judgment rather than correct a clerical mistake, the Court
construes Gerald to argue entitlement to relief pursuant to
Federal Rule of Civil Procedure 60(b). ("Rule 6O(b)
Motion"). See Fed. Civ. P. 60(b). In his Rule
60(b) Motion, Gerald requests that the Court vacate the
Court's dismissal of the action. (Id. at 1.)
seeking relief under Federal Rule of Civil Procedure 60(b)
must make a threshold showing of "timeliness, a
meritorious defense, a lack of unfair prejudice to the
opposing party, and exceptional circumstances."
Dowell v. State Farm Fire & Cas. Auto. Ins. Co.,
993 F.2d 46, 48 (4th Cir. 1993) (quoting Werner v.
Carbo, 731 F.2d 204, 207 (4th Cir. 1984)). After a party
satisfies this threshold showing, "he [or she] then must
satisfy one of the six specific sections of Rule 60(b)."
Id. (citing Werner, 731 F.2d at 207).
Federal Rule of Civil Procedure 60(c)(1), Gerald was required
to file his Rule 60(b) Motion within a reasonable time after
the entry of the September 17, 2015 Memorandum Opinion and
Order. Fed.R.Civ.P. 60(c)(1) ("A motion under Rule 60(b)
must be made within a reasonable time-and for reasons (1),
(2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.")
Gerald's Rule 60(b) Motion, filed more than two (2) years
after the entry of the challenged judgment, was not filed in
a reasonable time. See McLawhorn v. John W. Daniel &
Co., Inc., 924 F.2d 535, 538 (4th Cir. 1991) ("We
have held on several occasions that a Rule 60(b) motion is
not timely brought when it is made three to four months after
the original judgment and no valid reason is given for the
delay." (citing Cent. Operating Co. v. Utility
Workers of Am., 491 F.2d 245 (4th Cir. 1974); Consol
Masonry & Fireproofing, Inc. v. Wagman Constr.
Corp., 383 F.2d 249 (4th Cir. 1967))).
Gerald argues that various obstacles prevented him from
prosecuting this action, and thus, the Court should re-open
the judgment. (See Rule 60(b) Mot. 1-3.)
Specifically, Gerald asserts that he never "received any
notice, letter or order from this court giving indication
that... any action was required by [him]." (Id.
at 1.) Gerald further claims that,
throughout his period of incarceration in Virginia [from]
March 3, 2015-August 3, 2015 [he] experienced severe
deprivation of access to the courts .... There was no way
possible for [Gerald] to stay abreast of the prosecution of
this action . . . due to the refusal of mail staff at
Rappahannock Regional Jail refusing to deliver orders,
notices or other communications regarding this case to [him].
(Id. at 2.) Gerald also states that he was later
arrested in Ohio on November 22, 2015, "and during a
period of several months, up until his most recent
communication with this court (August 23, 2017) he
experienced severe deprivation of access to the courts."
(Id.) Gerald also claims that he was "unable to
effectively pursue prosecution" of this action for the
period between his release from Rappahannock Regional Jail on
August 3, 2015 and his Ohio arrest on November 22, 2015
because he was homeless. (Id. at 2-3.)
Court construes Gerald to argue that conduct by prison
officials and his temporary homelessness constitute valid
reasons for his failure to timely bring this Rule 60(b)
Motion. Despite Gerald's assertion that Rappahannock
Regional Jail officials failed to deliver Court orders to him
from March 3, 2015 until his release in August 2015, the
record reveals that Gerald received a June 4, 2015 Memorandum
Order wherein the Court directed Gerald to complete an
in forma pauperis affidavit and a consent
to collection of fees form because Gerald returned the same
to the Court on June 15, 2015. (ECF Nos. 13, 14.) Further,
the June 4, 2015 Memorandum Order informed Gerald that he
must "immediately advise the Court of [his] new
address in the event that [he] is transferred, released, or
otherwise relocated" or the action would be subject to
dismissal. (ECF No. 6, at 2.) Therefore, Gerald had received
an "indication that... action was required by" him.
(Rule 60(b) Mot. 1.) Thus, the record belies Gerald's
assertions that prison officials somehow prevented him from
receiving the Court's orders and that he was unaware
"that the action was in fact filed[, ]... that any
action was required" by him, or that he had an
obligation to keep the Court informed of his current address.
(Rule 60(b) Motion 1.)
brief assertion of temporary homelessness fails to qualify as
a valid reason for his lengthy delay. Gerald asserts that he
was re-incarcerated in Ohio by November 22, 2015, yet he
waited until August 2017 to contact the Alexandria Division
of this Court to request a "Record Search Request."
(ECF No. 28-1; see Rule 60(b) Mot. 2.)  Although
Gerald claims in his Rule 60(b) Motion that while
incarcerated in Ohio, he experienced "severe deprivation
of access to the courts, " he provides no additional
details of any deprivations. (Rule 60(b) Mot. 2.) Gerald
therefore fails to articulate a valid reason as to why his
Rule 60(b) Motion should be deemed timely and made within a
reasonable time when he waited more than two years after
entry of the judgment to file it. See S. Holdings, Inc.
v. Horry Cty., No. 4:02-CV-1859-RBH, 2008 WL 11276558,
at *2 (D.S.C. Aug. 13, 2008) (concluding plaintiffs'
excuse for their untimely Rule 60(b) motion was not valid
where they alleged fraud and concealment of evidence by the
defendant but offered "insufficient evidence" of
such fraud and concealment), aff'd sub nam.
Lail v. Horry Cty., 363 Fed.Appx. 223 (4th Cir. 2010).
Accordingly, the Rule 60(b) Motion (ECF No. 30) will be
is so ORDERED.
Rule 60(b) provides, in relevant
(b) Grounds for Relief from a Final Judgment. Order,
or Proceeding. On motion and just terms, the court may
relieve a party or its legal representative from a final
judgment, order, or ...