Kim Davis v. Gene Mariano

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1608
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KIM DAVIS,
Appellant
v.
GENE R. MARIANO, ESQ.;
NEW PENN FINANCIAL LLC, d/b/a Shellpoint Mortgage Servicing;
STATE OF NEW JERSEY COURTS;
STATE OF NEW JERSEY OCEAN COUNTY SHERIFF'S DEPARTMENT;
BANK OF AMERICA, N.A.
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-19-cv-13515)
District Judge: Honorable Noel L. Hillman
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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 16, 2023
Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges
(Opinion filed: February 21, 2023)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Kim Davis appeals pro se from an order of the District Court denying her motion
for reconsideration under Federal Rules of Civil Procedure 59 and 60 of orders
dismissing her complaint and denying her motion for leave to amend. For the following
reasons, we will affirm the District Court’s judgment.
I.
In 2016, Bank of America, N.A. (“Bank of America”) filed an action against
Davis, seeking to foreclose on her mortgaged New Jersey home. In 2018, the New Jersey
Superior Court, Chancery Division entered a final judgment of foreclosure against Davis
and issued a writ of execution directing the Ocean County Sheriff’s Department
(“Sheriff’s Department”) to sell Davis’s property at a Sheriff’s Sale. Davis filed a series
of unsuccessful appeals in state court.
On June 6, 2019, Davis initiated this case in the District Court by filing a
complaint against Bank of America and its attorney, Gene Mariano, as well as the
Sheriff’s Department, Davis’s mortgage servicer, and the New Jersey Judiciary. The
complaint alleged that the defendants had committed several consumer protection, due
process, and common law violations. The defendants moved to dismiss the complaint for
lack of subject matter jurisdiction and for failure to state a claim upon which relief may
be granted. On May 27, 2020, the District Court granted the motions to dismiss and
entered an order dismissing the complaint. The District Court ruled that it lacked subject
matter jurisdiction under the Rooker-Feldman doctrine, and that even if that doctrine did
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not apply, Davis had failed to state a claim. It also noted that res judicata appeared to bar
her claims.
Thirty days later, on June 26, 2020, Davis filed a motion to amend her complaint
under Federal Rule of Civil Procedure 15 seeking to add, among other things, a claim
under the Truth in Lending Act (“TILA”). A Magistrate Judge denied the motion on
March 26, 2021, concluding that Davis still had not stated a claim for relief and that her
TILA claim was time-barred. Then, on April 22, 2021, Davis filed a motion pursuant to
Federal Rule of Civil Procedure 59(e) to reconsider the court’s order denying her motion
to amend, and for Rule 60 relief from the court’s order dismissing her complaint. The
District Court noted that Davis’s filing was untimely to the extent that she sought
reconsideration of the dismissal order under Rule 59(e). It ruled that relief was not
warranted under Rule 60 insofar as she argued that it had erred in dismissing her
complaint under the Rooker-Feldman doctrine. 1 The District Court further ruled that, to
the extent her filing could be deemed an appeal of the Magistrate Judge’s order denying
leave to amend, the appeal lacked merit. Davis appealed.
II.
We have jurisdiction to consider this appeal pursuant to 28 U.S.C. § 1291, but the
scope of our review is limited. A notice of appeal in a civil case in which the United
States is not a party must be filed within 30 days of the entry of the order or judgment
being appealed. See Fed. R. App. P. 4(a)(1)(A); see also Bowles v. Russell, 551 U.S.
1The District Court did not address Davis’s other challenges to the dismissal order
because its ruling that it lacked subject matter jurisdiction was case dispositive.
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205, 214 (2007) (stating that this time limit is mandatory and jurisdictional). The District
Court entered its order dismissing the complaint on May 27, 2020, and Davis filed this
appeal far beyond the applicable 30-day window. While the filing of certain motions can
toll the time to file an appeal, Davis did not timely file such a motion. See Fed. R. App.
P. 4(a)(4)(A). The notice of appeal is, however, timely as to the District Court’s order
denying the motion to reconsider. We therefore have jurisdiction over Davis’s appeal
from that order, which we review for abuse of discretion. See Budget Blinds, Inc. v.
White, 536 F.3d 244, 251 (3d Cir. 2008).
III.
To the extent that Davis challenges the District Court’s decision dismissing her
complaint, that decision is, as noted above, beyond the scope of our review. As to the
denial of her motion for reconsideration, Davis contends that the District Court erred
insofar as it failed to recognize that she was alleging fraud on the part of the opposing
parties. She appears to make two arguments. First, she argues that relief was due under
Rule 60(b) because the District Court erred in dismissing her complaint without
considering whether an exception to the Rooker-Feldman doctrine applied based on fraud
in the state court action. To the extent that Davis adequately raised that contention in her
motion below, it did not warrant relief under Rule 60(b) because it alleged a legal error
that could have been raised on appeal. See Smith v. Evans, 853 F.2d 155, 158 (3d Cir.
1988) (explaining that “a Rule 60(b) motion may not be used as a substitute for appeal”),
overruled on other grounds by Lizardo v. United States, 619 F.3d 273, 276-77 (3d Cir.
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2010). Davis’s motion also failed to allege any “extraordinary circumstances” justifying
relief under Rule 60(b)(6). See Budget Blinds, 536 F.3d at 255.
Davis next appears to argue that she was entitled to Rule 60(b) relief based on
fraud in the District Court proceedings. See Fed. R. Civ. P. 60(b)(3). But her motion
failed to present clear and convincing evidence that “the adverse part[ies] engaged in
fraud or other misconduct, and that this conduct prevented [her] from fully and fairly
presenting [her] case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983); see
Brown v. Pa. R.R. Co., 282 F.2d 522, 527 (3d Cir. 1960). Rather, her factual allegations
in support of that claim are based only on assertions and legal arguments made in the
defendants’ motions to dismiss. The District Court stated that it had already considered
Davis’s opposition to such arguments, and thus her claims purporting to allege fraud in
the District Court were insufficient to warrant Rule 60(b) relief.
To the extent that Davis contends that the District Court committed other legal
errors in dismissing her complaint, such errors similarly do not warrant Rule 60(b) relief
because they could have been raised on appeal. And to the extent that Davis challenges
the denial of the motion to amend her complaint in order to add a claim of a conspiracy to
deny her constitutional rights, she has not shown that relief was warranted given that her
related constitutional claim was dismissed for lack of subject matter jurisdiction. She has
also forfeited any challenge to the ruling that her TILA claim is time-barred by failing to
raise such in her opening brief. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch.
Dist., 877 F.3d 136, 145 (3d Cir. 2017).
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We will accordingly affirm the District Court’s order denying the motion for
reconsideration.
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