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Hussain Kareem v. Federal Deposit Insurance Corporation

September 15, 2011

HUSSAIN KAREEM, PLAINTIFF,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

I. Introduction and Background.

Pro se Plaintiff Hussain Kareem sued the Federal Deposit Insurance Corporation (FDIC) and Johnson & Freedman II, LLC, a law firm, about matters involving foreclosure proceedings on his home mortgage. See Am. Federal Compl., ECF No. 15. The Court dismissed all claims against the FDIC because Plaintiff filed his complaint one day late. Kareem v. F.D.I.C., No. 09-cv-1820, 2010 WL 2943149 (D.D.C. July 27, 2010). The Court reasoned that Plaintiff "timely filed a claim with the FDIC"; "the FDIC had until July 1, 2009, to make a determination" on Plaintiff's claims, but failed to do so; under 18 U.S.C. § 1821(d)(6)(B), Plaintiff "had sixty days from July 1, 2009 to file a civil complaint against the FDIC"; under Federal Rule of Civil Procedure 6, Plaintiff thus had "to file his complaint on or before Monday, August 31, 2009"; Plaintiff "mailed the complaint . . . on August 31, 2009"; the complaint "was received by the clerk's office for filing on September 1, 2009"; and "the date the complaint is received by the clerk's office is the date the complaint is deemed filed for purposes of determining whether a complaint is timely filed." Id. at *1. The Court concluded that "[b]ecause Kareem's complaint against the FDIC was not received by the clerk's office for filing on or before August 31, 2009, the claims against the FDIC are time-barred, depriving this court of subject matter jurisdiction." Id. The Court therefore dismissed all claims against the FDIC, declined to exercise supplemental jurisdiction over the remaining claims concerning the law firm, and dismissed this case. Id.

Plaintiff now moves for reconsideration of that dismissal, ostensibly under Federal Rule of Civil Procedure 59(e). See Amended Mot. for Reconsideration Pursuant to FRCP Rule 59(e), ECF No. 30 ("Mot. for Reconsideration"). The Court will construe this motion as though made under Federal Rule of Civil Procedure 60(b). Because Plaintiff's arguments concern only rules and regulations unrelated to the filing date of his complaint, this motion will be denied.

Plaintiff also moves for judgment as a matter of law, to set aside or to vacate the judgment, or for a new trial. See Mot. for J. as Matter of Law and Mot. to Set Aside or Vacate J. Alternately; Mot. for New Trial, ECF No. 36 ("Mot. for JML, to Set Aside or Vacate, or for New Trial"). To the extent that Plaintiff seeks reconsideration of the dismissal, the Court will construe this motion as though made under Rule 60(b) and deny the motion. The remainder of the motion will be denied as not ripe.

Plaintiff also moves for entry of default and judgment on such default, or for judgment on the pleadings, and for a hearing on that motion. See Notice to the Clerk of Court to Enter Default J. Pursuant to Federal Rules of Civil Procedure 55(b)(1) & on Pleading, ECF No. 34 ("Mot. for Default & Default J. or J. on the Pleadings"); Judicial Notice: Pl.'s Request for Hearing on Notice for Entry of Default J. & on Pleading, ECF No. 35 ("Mot. for Hearing"). These motions will be denied as moot.

II. Analysis.

A. The Motion for Reconsideration.

Both Rules 59(e) and 60(b) provide mechanisms for relief from final judgments. See Fed. R. Civ. P. 59(e), 60(b). A Rule 59(e) motion "must be filed no later than 28 days after the entry of the judgment," Fed. R. Civ. P. 59(e), but a Rule 60(b) motion need only be filed "within a reasonable time" and, depending on the basis for the reconsideration, "no more than a year after the entry of the judgment," Fed. R. Civ. P. 60(c)(1). Thus, "[i]f a person files a motion for reconsideration within twenty-eight days of the judgment or order of which he complains, courts consider it a Rule 59(e) motion; otherwise, they treat it as a Rule 60(b) motion." S.E.C. v. Bilzerian, 729 F. Supp. 2d 9, 12 (D.D.C. 2010). This 28-day period "runs from the date of entry of judgment and not from the date of service of the challenged judgment." United States v. Zaia, 751 F. Supp. 2d 132, 144--45 (D.D.C. 2010). According to Federal Rule of Civil Procedure 5, a motion is filed when it is delivered to the clerk of the Court. Fed. R. Civ. P. 5(d)(2)(A). Therefore, when a non-prisoner plaintiff mails a motion to the Court, the filing date is the date on which the motion was received, not the date on which the motion was sent. See, e.g., Reed v. Gulf Coast Cmty. Coll., No. 5:09-c-v237, 2010 WL 2926556, at *3 (N.D. Fla. June 29, 2010).*fn1

According to the title of his motion, Plaintiff purports to bring his reconsideration motion under Rule 59(e). See Mot. for Reconsideration at 1. The Court entered the judgment from which Plaintiff seeks relief on July 27, 2010. See Kareem, 2010 WL 2943149. Plaintiff claims to have mailed his original motion for reconsideration-which has since been amended-on August 24, 2010. Mot. for Reconsideration Pursuant to FRCP 59(e), at 17, ECF No. 29.

However, it was not received by the clerk's office until August 26, 2010. See id. at 1 (showing dated receipt stamp). That was the thirty-first day after July 27, 2010. Because Plaintiff filed his motion more than 28 days after the date of the entry of the judgment he now challenges, the motion will be considered under Rule 60(b).

Rule 60(b) allows for relief from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...


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