TONDALIA CLIETT, Administratrix of the Estate of Quaran Cliett her son Deceased, in… v. CITY OF OCEAN CITY Tondalia Cliett

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-4731
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TONDALIA CLIETT,
Administratrix of the Estate of Quaran Cliett (her son) Deceased,
in her own right,
v.
CITY OF OCEAN CITY
Tondalia Cliett,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 06-4368
District Judge: The Honorable Jerome B. Simandle
Submitted Pursuant to Third Circuit L.A.R 34.1(a)
September 17, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges
(Filed: September 21, 2009 )
OPINION
SMITH, Circuit Judge.

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“This is a tragic case.” That is how the District Court opinion which we now
review begins, and that is how we begin as well.
Tondalia Cliett, in her own right and as administratrix of her son’s estate, filed a
wrongful death and survival action against the City of Ocean City, New Jersey, in
September of 2006. In November of 2006, the City moved to dismiss, asserting that
Cliett’s complaint should be dismissed because she failed to file the Notice of Claim
required by the New Jersey Tort Claims Act, N. J. Stat. Ann. §§ 59:8–3, 59:8–8. The
District Court converted the Rule 12(b)(6) motion into a motion for summary judgment,
then granted the motion in favor of the City. Cliett filed a timely motion for
reconsideration. Cliett voluntarily withdrew her motion for reconsideration after eight
months, however, and filed a Notice of Appeal challenging the District Court’s dismissal
of her complaint. We dismissed as untimely Cliett’s appeal, which had been filed more
than thirty days after the District Court’s final order. Almost two months later, on
September 12, 2008, Cliett filed a motion to reinstate the previously withdrawn motion
for reconsideration so that the District Court could “make a final ruling prior to appeal.”
The District Court denied the motion to reinstate on November 13, 2008. The Court
stated that “[Cliett] cannot now ‘reinstate’ that motion, but would instead be required to
file a new motion for reconsideration.” The Court observed such a motion would be
untimely and that “untimeliness ‘alone is sufficient grounds to deny the . . . motion.’”

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The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We exercise1
jurisdiction under 28 U.S.C. § 1291.
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This timely appeal followed. Cliett contends that the District Court erred by (1)1
dismissing her complaint in August of 2007; and (2) declining in November of 2008 to
reinstate the motion for reconsideration, which she had voluntarily withdrawn.
Because Cliett’s motion for reinstatement did not seek relief under a specific
Federal Rule of Civil Procedure, and mindful that Federal Rules of Civil Procedure 59
and 60 govern the opening of final judgments, we consider whether the motion for
reinstatement should have been characterized as a motion for relief thereunder.
Where, as here, the motion is filed outside of the ten days provided for
under Rule 59(e), but within the [time] permitted under Rule 60(b), and the
motion may be read to include grounds cognizable under the latter rule, we
will consider it to have been filed as a Rule 60(b) motion.
Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002). Although the motion is
barebones, we construe it as one for relief under the “catch-all provision in Rule 60(b)(6)
that allows a court to relieve a party from a judgment for ‘any other reason that justifies
relief’ aside from the more specific circumstances described in Rules 60(b)(1)–(5).”
Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008). “[A] party seeking Rule
60(b)(6) relief must demonstrate the existence of ‘extraordinary circumstances’ that
justify reopening the judgment.” Id. at 255 (footnote omitted). We review the denial of
relief under Rule 60(b)(6) for an abuse of discretion. Id. at 251.
The District Court did not abuse its discretion in denying reinstatement of the

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previously withdrawn motion for reconsideration. The motion for reinstatement was filed
more than a year after the entry of final judgment, and the only ground asserted was that
reinstatement of the action would allow the District Court to “make a final ruling prior to
appeal.” Yet a final ruling had already been rendered in the August 24, 2007 order
granting summary judgment. In light of the dismissal of the untimely appeal in July of
2008, Cliett has not demonstrated extraordinary circumstances warranting relief under
Rule 60(b)(6). We will affirm the order of the District Court denying the motion for
reinstatement.
It is well settled that “an appeal from denial of Rule 60(b) relief does not bring up
the underlying judgment for review.” Browder v. Dir. Dept. of Corrs. of Ill., 434 U.S.
257, 263 n.7 (1978); see also Smith v. Evans, 853 F.2d 155, 158 n.1 (3d Cir. 1988)
(noting that the even though Rule 60(b) preserves the right to appeal, the appeal may
bring up only the subject matter of the 60(b) motion and not the underlying case).
Accordingly, even though the bulk of Cliett’s brief argues that the District Court’s grant
of summary judgment in favor of the City was error, we lack jurisdiction to consider that
issue.

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