Lawrence Wilder, Sr. v. DMR Consul Grp Inc, (3rd Cir. 2009)

Status: Not Precedential

Docket Number: 07-3796

Linked as:

Text

BLD-275 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2451

LAWRENCE VERLINE WILDER, SR.,

APPELLANT

v.

DMR CONSULTING GROUP, INC.;

AT&T; FUJITSU CONSULTING

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 99-05667)

District Judge: Honorable Dennis M. Cavanaugh

Submitted for Possible Summary Action Pursuant to

Third Circuit LAR 27.4 and I.O.P. 10.6

August 6, 2009

Before: MCKEE, FISHER and CHAGARES , Circuit Judges

(Opinion filed: September 15, 2009)

OPINION

PER CURIAM Lawrence Wilder appeals from an order of the District Court denying his "motion to reopen" pursuant to Federal Rule of Civil Procedure 60(b), and denying his motion for appointment of counsel as moot. Wilder filed the Rule 60(b) motion on March 5, 2009, seeking reconsideration of a June 11, 2002 order dismissing his civil rights complaint with prejudice. According to Wilder, he has "new evidence to [sic] the defendants' guilt." We agree with the District Court that Wilder's motion is untimely because it was filed almost seven years after the challenged order was entered. See 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"); Moolenaar v.

Gov't of V.I., 822 F.2d 1342, 1348 (3d Cir. 1987) (two years not a "reasonable time" for 60(b) purposes); Martinez-McBean v. Gov't of V.I., 562 F.2d 908, 913 n.7 (3d Cir. 1977) (expressing "serious doubts" that two and one half year delay in filing Rule 60(b) motion would comply with "reasonable time" requirement).1 There being no substantial question presented by Wilder's appeal, we will summarily affirm the District Court's order denying both his Rule 60(b) motion and his motion for appointment of counsel. See LAR 27.4; I.O.P. 10.6.

1 Even if Wilder's motion were timely, he would be unable to bear the "heavy burden" for demonstrating entitlement to Rule 60(b) relief. Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991). Specifically, the alleged "newly discovered evidence" (an EEOC press release describing a settlement in an unrelated matter) is not "material" to Wilder's case. Id. Nor would it "probably have changed the outcome of the trial." Id.