Virgin Records America, Inc v. Kim Sparano

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4603
________________
VIRGIN RECORDS AMERICA, INC.
v.
KIM SPARANO; DOES No. 1-50, Inclusive; XYZ COMPANY No. 1-50, Inclusive;
BENJAMIN SPARANO,
Kim Sparano; Benjamin Sparano,
Appellants
______________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 05-cv-02511)
District Judge: Honorable Joseph A. Greenaway, Jr.
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
AUGUST 17, 2007
Before: RENDELL, HARDIMAN AND COWEN, CIRCUIT JUDGES
(Filed August 21, 2007 )
___________________
OPINION
_______________________
PER CURIAM
On October 6, 2006, the district court denied Kim and Benjamin Sparano’s motion

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Ms. Sparano is a non-practicing attorney licensed in New Jersey. Benjamin1
Sparano, Ms. Sparano’s son, was added as a defendant in May 2006.
Although the district judge stated that he considered the motion a Rule2
60(b) motion, he apparently evaluated it under the Rule 59(e) standard. Nevertheless, we
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to reconsider the July 19, 2006 denial of their motion to declare null and void their
stipulation with Virgin Records America, Inc. (“Virgin”). We will affirm.
I.
On May 12, 2005, Virgin filed a complaint in the U.S. District Court for the
District of New Jersey asserting that pro se defendant Kim Sparano infringed Virgin’s1
copyrights by releasing and distributing certain sound recordings over the internet. On
May 18, 2006, the district court issued a final judgment and order after the parties settled
the case through a stipulation. However, on June 12, 2006, after Virgin accused the
Sparanos of violating the stipulation, the Sparanos filed a motion to declare the
stipulation and May 18th order null and void. The district court denied the motion on
July 19th, and on August 8th, the Sparanos filed a “Motion to Reconsider.”
The Sparanos did not specify the legal foundation of the motion to reconsider;
however, the district court determined that their “assertions [we]re best framed and
evaluated under the rubric of Fed. R. Civ. P. 60(b) . . . .” And on October 6, 2006, the
district court denied the motion because it merely reiterated the arguments advanced in
the Sparanos’ motion to declare the stipulation null and void and failed to present new
evidence or a change in controlling law. The Sparanos appealed from the October 6th2

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affirm the denial of the motion because it cannot survive review under the Rule 60(b)
standard.
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order on October 26, 2006.
II.
Subject to certain exceptions, a notice of appeal must be filed within thirty days
from the entry date of the disputed order. Fed. R. App. P. 4(a)(1)(A). We cannot review
the July 19th order because the Sparanos filed their notice of appeal on October
26th—well outside the thirty-day deadline. Moreover, the Sparanos’ August 8, 2006
motion to reconsider did not toll the time for filing the appeal because it was filed more
than ten days after the July 19th order. Fed. R. App. P. 4(a)(4)(A).
The notice of appeal is timely, however, as to the October 6, 2006 order denying
the motion to reconsider because the district court considered it a Rule 60(b) motion.
When a motion is “filed outside of the ten days provided for under Rule 59(e) but within
the year 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). The thrust of the
Sparanos’ motion to reconsider was that the stipulation that ended the litigation was “not
fairly arrived at” due to Virgin’s misrepresentations and omissions. They also alleged
that the district court erred by determining that they had not presented “clear and
convincing proof” that the stipulation should be rescinded. Because the motion, under a

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liberal reading, included grounds cognizable under Rule 60(b)(3), i.e., fraud or
misrepresentation, the district court’s determination that it be considered a Rule 60(b)
motion was appropriate. See Ahmed, 297 F.3d at 208-09.
III.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and the denial of a Rule 60(b)
motion is reviewed for abuse of discretion. Reform Party of Allegheny County v.
Allegheny County Dep’t of Elections, 174 F.3d 305, 311 (3d Cir. 1999) (“An abuse of
discretion may be found when the district court’s decision rests upon a clearly erroneous
finding of fact, an errant conclusion of law or an improper application of law to fact.”)
(internal citation omitted). Additionally, an appeal from the denial of a Rule 60(b)
motion places at issue only the denial of the motion for review, not the merits of the
underlying decision. Smith v. Evans, 853 F.2d 155, 158 n.1 (3d Cir. 1988).
The Sparanos’ motion does not expressly cite to any of Rule 60(b)’s enumerated
grounds for relief, and in fact does not cite Rule 60 at all; however, the Sparanos contend
that Virgin made material misrepresentations and omissions to induce them to sign the
stipulation that ended the litigation. Thus, the motion could be read as falling under Rule
60(b)(3) as well as the “catchall” of 60(b)(6). There are, however, no “extraordinary
circumstances” present that warrant reconsideration under Rule 60(b)(6). See Reform
Party, 174 F.3d at 311. Additionally, as the district court recognized, the Sparanos’
motion essentially reargues the merits of their original motion to declare the stipulation

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It appears that the Sparanos were attempting to use the motion to3
reconsider as a substitute for appeal, which is not allowed. Martinez-McBean v. Gov’t of
Virgin Islands, 562 F.2d 908, 911 (3d Cir. 1977) (“[I]t is improper to grant relief under
Rule 60(b)(6) if the aggrieved party could have reasonably sought the same relief by
means of appeal.”).
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null and void and disagrees with the district court’s conclusions that they did not support
their allegations with the required clear and convincing evidence. Such contentions do
not justify relief under Rule 60. Accordingly, the district court did not abuse its3
discretion in denying the Sparanos’ motion to reconsider.
For the foregoing reasons, we will affirm the district court’s October 6, 2006
order.

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