YOLDAS ASKAN, Plaintiff, v. FARO TECHNOLOGIES, INC. and JOHN DOES 1-10, Defendants Case No. 6:18-cv-1122-Orl-40DCI United States District Court, M.D. Florida Signed June 03, 2020 Counsel Yoldas Askan, Birmingham, B2, pro se. Lloyd G. Farr, Pro Hac Vice, Nelson, Mullins, Riley & Scarborough, LLP, Atlanta, GA, Nicolette Corso Vilmos, Broad and Cassel LLP, Orlando, FL, for Defendants. Irick, Daniel C., United States Magistrate Judge Report and Recommendation *1 This cause comes before the Court for consideration without oral argument on the following motion: MOTION: Renewed Motion for Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b), Application for Further Stay of Execution (Doc. 146) FILED: April 22, 2020 THEREON it is ORDERED that the motion is DENIED. I. Background On June 21, 2018, Plaintiff filed a Complaint in the Tampa Division alleging, in part, that Defendant infringed and continues to infringe upon Plaintiff's patents.[1] See Doc. 1. This case was subsequently plagued by issues arising from Plaintiff's failure to adequately prosecute this action. Ultimately, on February 5, 2019, Defendant filed a motion for sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2). Doc. 94 (the Motion for Sanctions). In that Motion, Defendant alleged that “[n]otwithstanding this Court's Order requiring Plaintiff to ‘fully respond to Defendant's [Request for Production] on or before January 30, 2019, Plaintiff has not attempted to comply with this Court's Order.” Id. Indeed, Defendant alleged that despite numerous attempts, it had been unable to contact Mr. Harper since the January 23, 2019 hearing.[2] Id. Thus, Defendant asked the Court to sanction Plaintiff pursuant to Rule 37(b)(2)(A). Id. Specifically, Defendant asked the Court to dismiss this action with prejudice, or, in the alternative, enter default judgment against Plaintiff on Defendant's counterclaim. Id. Plaintiff failed to respond to the Motion for Sanctions. On February 22, 2019, based on Plaintiff's discovery violations, the undersigned entered a Report recommending that the Motion for Sanctions be granted in part such that the case would be dismissed. Doc. 97 (the Report). On March 3, 2019, Defendant filed an objection to the Report, but only to the extent the Report did not recommend dismissal with prejudice. Doc. 101. On March 11, 2019, the Court entered an order sustaining Defendant's objection and otherwise adopting the Report; the Court dismissed this case with prejudice. Doc. 103 (the Final Order). On March 14, 2019, Plaintiff filed a motion for reconsideration with respect to the Final Order and moved to reopen the case. Doc. 107 (the Motion for Reconsideration). On April 11, 2019, the Court denied the Motion for Reconsideration (Doc. 117) and subsequently clarified that in so ruling, the Court decided to not reopen the case (Doc. 119). On May 13, 2019, Plaintiff filed a notice of appeal; Plaintiff appealed the dismissal of his complaint and the related orders denying his motions for reconsideration and clarification. Doc. 120. On April 8, 2020, the United States Court of Appeals for the Federal Circuit (the Appeals Court) issued an opinion affirming the decisions of this Court. Doc. 144. *2 Now before the Court is Plaintiff's untimely Rule 60(b) motion, in which Plaintiff purports to attempt to litigate the merits of Plaintiff's claims without addressing the Final Order or the Report—or Plaintiff's own discovery violations—that caused the dismissal of this case in the first place. Doc. 146 (the Motion). The Motion is due to be denied. II. Overview of Applicable Law Rule 60 provides, in pertinent part, as follows: (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 proceeding 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 a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. (c) Timing and Effect of the Motion. (1) Timing. 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. (2) Effect on Finality. The motion does not affect the judgment's finality or suspend its operation. Fed. R. Civ. P. 60(b)-(c). III. Discussion Upon review, the undersigned finds that the Motion is due to be denied because it is untimely. Even if the Motion were timely, it does not address the substance of the Final Order and is therefore also due to be denied on that basis. A. Timeliness Plaintiff purports to move pursuant to Rule 60(b)(2) and (3) which provide, respectively, that a party may obtain relief from a court's final order or judgment on the grounds of “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)” (Fed. R. Civ. P. 60(b)(2)); and on the grounds of “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party” (Fed. R. Civ. P. 60(b)(3)). However, under Rule 60(c)(1), such a motion must be made no more than a year after the entry of the order or judgement. Fed. R. Civ. P. 60(c). Here, the Final Order was entered on March 11, 2019 (Doc. 103); the Motion was filed on April 22, 2020—more than a year later than the entry of the final Order. Thus, the Motion does not comply with the timing requirements of Rule 60(c)(1). Accordingly, the undersigned recommends that the Motion be denied as untimely. B. Substance of the Final Order Even if the Court found that the Motion is timely, the undersigned recommends denying the Motion because it does not address the substance of the Final Order—or the related Report—from which Plaintiff ostensibly seeks relief. A Rule 60(b) Motion is essentially a request that the Court reconsider a final order or judgement. Here, the Final Order deals with Plaintiff's discovery violations, which resulted in the court dismissing the case with prejudice as a sanction pursuant to Rule 37(b)(2)(A). See Doc. 103. However, Plaintiff's Rule 60(b) Motion does not appear to address the merits of the decisions it purports to challenge—i.e. the Final Order. See Doc. 146. Rather, Plaintiff appears to cast aspersions on Defendant's conduct—unrelated to the Plaintiff's own conduct underlying the Final Order—and argue the merits of Plaintiff's underlying substantive claims. As such, Plaintiff fails in the Motion to articulate a basis for the Court to reconsider its ruling in the Final Order or otherwise grant relief pursuant to Rule 60(b). Accordingly, the undersigned recommends that the Motion be denied. IV. Conclusion *3 It is RECOMMENDED that the Motion (Doc. 146) be DENIED. NOTICE TO PARTIES A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1. Recommended in Orlando, Florida on June 3, 2020. Footnotes [1] Plaintiff subsequently filed an amended complaint. Doc. 59. In addition, Defendant filed a counterclaim against Plaintiff on November 28, 2018. Doc. 64. [2] Defendant has previously alleged difficulties contacting Mr. Harper. See Docs. 30 at 1 n.1; 43.