Felix Ibarra v. W.q.s.u. Radio Broadcast Org.

ALD-121 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3050
________________
FELIX IBARRA,
Appellant
v.
W.Q.S.U. RADIO BROADCAST ORG.
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 06-cv-00195)
District Judge: Honorable James F. McClure, Jr.
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
February 8, 2007
Before: SLOVITER, CHAGARES AND NYGAARD, CIRCUIT JUDGES
(Filed February 20, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Felix Ibarra, a prisoner proceeding in forma pauperis, appeals from the district
court’s order denying his motion under Federal Rule of Civil Procedure 60(b). For the
following reasons, we will dismiss Ibarra’s appeal. See 28 U.S.C. § 1915(e)(2)(B).

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1 The district court also declined to exercise supplemental jurisdiction over Ibarra’s
state law claims. See 28 U.S.C. § 1367(c)(3).
2 In contrast to a Rule 59 motion, which must be filed within 10 days, Rule 60(b)
motions need only be brought “within a reasonable time,” and under some circumstances,
within one year.
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Ibarra filed a complaint against W.Q.S.U. Radio Broadcast Org. (W.Q.S.U.) with
the district court on January 31, 2006, alleging that disk jockeys working for the radio
station failed to award him a prize, or prizes, to which he was entitled for winning a
station-sponsored art contest. In an order entered on March 8, 2006, the district court
dismissed Ibarra’s complaint for failure to state a claim under 28 U.S.C. §
1915(e)(2)(B)(ii). 1 Ibarra subsequently filed a “motion for leave of court to re-open the
above case no. for action de novo” (motion for leave of court) invoking Federal Rule of
Civil Procedure 6(b) on June 1, 2006. In an order entered June 13, 2006, the district
court, construing Ibarra’s request as one under Federal Rule of Civil Procedure 60(b),
denied Ibarra’s motion. Ibarra filed a timely notice of appeal.
Ibarra’s appeal is timely only as to the issues he raised in his motion for leave of
court filed pursuant to his timely Rule 60(b) motion. 2 To the extent that Ibarra seeks an
appeal from the district court’s March 8 order dismissing his underlying complaint
against W.Q.S.U., this court lacks jurisdiction to hear that appeal. Ibarra’s notice of
appeal was filed on June 13, 2006, long after the thirty-day period for filing a notice of
appeal from the court’s order expired. See Fed. R. App. P. 4(a)(1)(A). Ibarra did not file

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3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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any document which could be construed as a notice of appeal within the thirty-day time
frame, nor did he file any document which could be construed as seeking to extend or
reopen the time to appeal pursuant to Federal Rules of Appellate Procedure 4(a)(5) or (6).
Further, Ibarra’s motion for leave of court itself could not toll the thirty-day period
because it was filed more than ten days (excluding immediate weekends) after entry of
the March 8 order. Cf. Fed. R. App. P. 4(a)(4)(iv), (v), and (vi).
We review the denial of a motion for Rule 60(b) relief for abuse of discretion.3
See Lorenzo v. Griffith, 12 F.3d 23, 26 (3d Cir. 1993). A district court abuses its
discretion where its decision “rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.” Morris v. Horn, 187 F.3d
333, 341 (3d Cir. 1999). Rule 60(b) relief is available “only in cases evidencing
extraordinary circumstances.” Id.; see also Sawka v. Healtheast, 989 F.2d 138, 140 (3d
Cir. 1993) (“Relief under Rule 60(b)(6) may only be granted under extraordinary
circumstances where, without such relief, an extreme and unexpected hardship would
occur.”) We have held that a Rule 60(b) motion may not be used as a substitute for
appeal, and that legal error, without more, cannot justify granting a Rule 60(b) motion.
See Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988) (holding that a motion pursuant to
Rule 60(b) is not a substitute for appeal or a vehicle for needlessly repetitive
reconsideration of previously rejected legal theories).

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4 Rule 60(b) provides for relief from a judgment or order based on: (1) mistake,
inadvertence, surprise or excusable neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation or other misconduct of an adverse party; (4) a void judgment; (5) the
satisfaction, release or discharge of a judgment or inequity in the prospective application
of the judgment; or (6) any other reason justifying relief from operation of the judgment.
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A review of Ibarra's motion reveals that none of the bases for a Rule 60(b) motion
were met.4 Further, though we find that the district court reasonably construed Ibarra’s
motion as one brought under Rule 60(b), it was surely no abuse of discretion for the court
to reject arguments that it had already considered and rejected when addressing Ibarra’s
initial complaint.
Ibarra’s appeal lacks arguable legal merit. For this reason, his appeal will be
dismissed under 28 U.S.C. § 1915(e)(2)(B).

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