Turner v. Village of Lakewood

13-4568-cv
Turner v. Bond

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 13th day of
February, two thousand fifteen.

Present:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
ROBERT D. SACK,
Circuit Judges.

________________________________________________

THOMAS TURNER and MICHELLE TURNER,

Plaintiffs-Appellants,

v. No. 13-4568-cv

THE VILLAGE OF LAKEWOOD, NEW YORK, THE
BOARD OF TRUSTEES OF THE VILLAGE OF
LAKEWOOD, NEW YORK, GEOFFREY BOND, and
SALLY BOOTEY,

Defendants-Appellees.
________________________________________________
For Plaintiffs-Appellants: Brian D. Gwitt and Gregory Zini, Damon
Morley LLP, Buffalo, NY.

For Defendants-Appellees Geoffrey
Bond and Sally Bootey: Paul V. Webb, Jr., Erickson Webb Scolton &
Hajdu, Lakewood, NY.

For Defendants-Appellees the Village
of Lakewood, New York and the
Board of Trustees of the Village of
Lakewood, New York: Terry Rice, Law Offices of Rice & Amon,
Suffern, NY.

_______________________________________________

The plaintiffs-appellants, Thomas Turner and Michelle Turner, appeal from an order

entered on September 27, 2013, by the United States District Court for the Western District of

New York (Arcara, J.).

ON CONSIDERATION WHEREOF, it is ORDERED, ADJUDGED, and

DECREED that the appeal from the order of the district court is hereby AFFIRMED.

Plaintiffs appeal the district court's denial of their motion under Rule 60(b) of the Federal

Rules of Civil Procedure seeking reconsideration of the district court's prior decision of October

14, 2011, which, inter alia, dismissed the second claim in the plaintiffs' complaint as barred by

res judicata. The plaintiffs argued in support of that motion that the district court erred in

dismissing their claim. We assume the parties' familiarity with the underlying facts, procedural

history of, and issues presented for review by, this appeal.

Rule 60(b)(1) "provides for relief from mistake, inadvertence, surprise, or excusable

neglect. Generally this provision has been invoked to remedy the mistake of a party or his

representatives." In re Emergency Beacon Corp., 666 F.2d 754, 759 (2d Cir. 1981) (emphasis

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added). If a party seeks to challenge a decision of the district court, as the plaintiffs do here, on

the grounds that it is mistaken or erroneous, there are other rules under which he or she may

proceed, most obviously a direct appeal in the Court of Appeals under Federal Rule of Appellate

Procedure 4, or a motion in the district court under Federal Rule of Civil Procedure 59(e) to alter

or amend the judgment in question.

In this case, the plaintiffs failed to seek a timely review of the October 14, 2011 decision

under either under Fed. R. App. P. 4 or Fed. R. Civ. P. 59(e). Because the plaintiffs failed to file

a timely appeal of the October 14, 2011 decision, they are procedurally barred from having this

Court consider an alleged mistake of the district court in arriving at that decision. We must

therefore affirm the judgment of the district court.

We have considered all of the Appellants' remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the appeal from the order of the district

court is hereby AFFIRMED.

FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK

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