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Gagliardi v. Fisher

February 26, 2008

JOHN GAGLIARDI, PLAINTIFF,
v.
D. MICHAEL FISHER, FORMER ATTORNEY GENERAL; KENNETH NYE, SUPERVISORY SPECIAL AGENT; DAVID K. FRATTARE, SPECIAL AGENT; JACK O'BRIEN, SPECIAL AGENT, BUREAU OF CRIMINAL INVESTIGATIONS; COMMONWEALTH OF PENNSYLVANIA, OFFICE OF ATTORNEY GENERAL; BARBARA HAFER, TREASURER; MICHAEL CHAPEL, TREASURY INVESTIGATOR; COMMONWEALTH OF PENNSYLVANIA, OFFICE OF THE TREASURER, IN THEIR PERSONAL AND OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM ORDER

CONTI, District Judge.

In this memorandum order, the court considers the motion for relief from judgment or order and/or leave of court to appeal nunc pro tunc (Doc. No. 11), (the "motion"), filed by plaintiff John Gagliardi ("plaintiff" or "Gagliardi"). In essence, plaintiff is seeking to open the judgment entered in Civil Action No. 06-95 pursuant to Rule 60(b) of the Federal Rules of Civil Procedure or in the alternative for this court to permit him to file an untimely appeal. After considering the motion, the response to plaintiff's motion for relief from judgment filed by defendants D. Michael Fisher, former Attorney General of Pennsylvania, Kenneth Nye, Supervisory Special Agent, David K. Frattare, Special Agent, Jack O'Brien, Special Agent, Bureau of Criminal Investigations, the Commonwealth of Pennsylvania, Office of Attorney General, Barbara Hafer, Treasurer of Pennsylvania, Michael Chapel, Treasury Investigator, and the Commonwealth of Pennsylvania, Office of the Treasurer, in their personal and official capacities (collectively referred to as "defendants"), the exhibits attached to the response and the plaintiff's pertinent authorities supporting the motion for relief from judgment order and/or leave of court to appeal nunc pro tunc, the court will deny plaintiff's motion.

Facts and Procedural History

On March 16, 2007, this court issued its Memorandum Order (the "Memorandum Order"), which dismissed all plaintiff's federal claims and remanded all plaintiff's causes of action arising under state law to the Court of Common Pleas of Allegheny County. The action had been initially commenced in the Court of Common Pleas of Allegheny County and was removed to this court pursuant to 28 U.S.C. § 1441. In the Memorandum Order the court reviewed plaintiff's allegations which were accepted as true for purposes of deciding the motion to dismiss. The parties are considered to be familiar with the Memorandum Order, including the facts accepted as true in that decision, and those facts will not be repeated here. In the Memorandum Order, the court considered plaintiff's federal constitutional claims under 42 U.S.C. § 1983. The court summarized its conclusions in the Memorandum Order as follows:

In summary, since section 1983 creates no substantive rights, plaintiff cannot proceed under section 1983 without alleging an underlying violation of federal law. Smith, 210 F.3d at 195. The Attorney General's Office and the Treasurer's Office are not "persons" within the meaning of section 1983. Will, 491 U.S. at 71. The complaint fails to allege that Fisher and Hafer were sufficiently involved with the handling of plaintiff's prosecution to warrant liability under section 1983. Evancho, 423 F.3d at 353-55. The facts alleged and all reasonable inferences from those facts drawn in favor of plaintiff establish that plaintiff cannot state a claim against Nye, Frattare, O'Brien or Chapel which constitutes a violation of the United States Constitution. Plaintiff's claims under section 1983, therefore, must be dismissed with prejudice. Given the specificity of the complaint, it is clear that any attempts by plaintiff to amend would be futile. Shane, 213 F.3d at 115 ("'Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted.").

Memorandum Order at 63.

Plaintiff did not appeal the court's decision dismissing his federal claims with prejudice. Plaintiff's case on his state law claims proceeded after remand in the Court of Common Pleas of Allegheny County. Defendants raised preliminary objections in the state court, including objections under the doctrines of sovereign and official immunity. The state court granted the objections and dismissed the state law claims with prejudice. On or about July 17, 2007, plaintiff filed a notice of appeal with the Pennsylvania Superior Court. On October 12, 2007, the state trial court filed its opinion on the objections.

On September 29, 2007, plaintiff filed the motion at issue with this court. Plaintiff requests this court grant him the right of appeal nunc pro tunc, or in the alternative, grant him relief under Rule 60(b) of the Federal Rules of Civil Procedure. The court will address each of those requests.

Analysis

I. Timeliness of Appeal

The Memorandum Order entered by this court on March 16, 2007, was a final order subject to appeal pursuant to 28 U.S.C. § 1291. Under 28 U.S.C. § 2107(a), plaintiff had thirty days after the order was entered, or until April 16, 2007, to file an appeal. See FED. R. APP. PROC. 4(a). The failure to file within the time limit is jurisdictional. The Supreme Court in Bowles v. Russell, 127 S.Ct. 2360 (2007), considered the ability of a district court to extend a party's time for appeal beyond the period permitted by statute. In Bowles, the district court had provided the plaintiff a right to appeal which was beyond the period authorized by statute and the rules. The Court stated: "We have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature." Id. at 2362. In Bowles, the Supreme Court made it clear that there are no equitable exceptions to the requirement that an appeal be filed in a timely matter and noted: "[w]hen an 'appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.'" Id. at 2366 (quoting United States v. Curry, 6 How. 106, 113, 12 L.Ed. 363 (1848)). Thus, even if a district court desired to extend the time for filing an appeal, the district court would lack jurisdiction to extend the time. It is undisputed that plaintiff failed to appeal the Memorandum Order of this court dated March 16, 2007, within the time set by statute. Under those circumstances this court lacks jurisdiction to grant a nunc pro tunc exception and thus cannot consider or grant plaintiff's request.

II. Relief Under Rule 60(b)

"The remedy provided by Rule 60(b) is 'extraordinary, and special circumstances must justify granting relief under it'." Moolenaar v. Gov't of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987)(quoting Page v. Schweiker, 786 F.2d 150, 158 (3d Cir. 1986)). Plaintiff moves to open the judgment in this case ...


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