S.E.C. v. BILZERIAN
729 F.Supp.2d 9 (2010)
United States District Court, District of Columbia.
November 1, 2010.
(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. Fed.R.Civ.P. 60(b).
Just as timing determines whether Rule 59(e) applies to a motion for reconsideration, it also affects the interplay and availability of the various subsections of Rule 60(b). Someone proceeding under one of the first three subsections of Rule 60(b) must file his motion within one year after entry of the judgment at issue. Fed. R.Civ.P. 60(c)(1). A person relying on one of the three remaining subsections may file his Rule 60(b) motion within a "reasonable time." Id. Furthermore, he cannot rely on the 60(b)(6) catchall provision to circumvent the 60(c)(1) limitations on 60(b)(1)-(3). As the D.C. Circuit stated in Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 249 (D.C.Cir.1987): Rule 60(b)(6) permits a court to grant relief from a final judgment for "any other reason justifying relief...." (Emphasis added.) The courts have universally interpreted "other" to mean other than the reasons specified in subsections 60(b)(1)-60(b)(5)....
Any other interpretation of 60(b)(6) would render the limitations on motions under 60(b)(1)-(3) meaningless. See id. ("[I]t is generally accepted that cases falling under Rule 60(b)(1) cannot be brought within the more generous Rule 60(b)(6) in order to escape the former's one year time limitation."). With these provisions and the legal rules that govern the interplay between them in mind, the Court now turns to the specific arguments in Hammer's Motions.
IV. ANALYSIS
1. This Court, on August 12, 2009, ordered that any portion of the Court's May 11, 2009, order that purported to hold Hammer in civil contempt for his participation in Caligula be vacated. Order 2, August 12, 2009, ECF No. 986. The Court went on to clarify that the order does not require Hammer to withdraw from representing Caligula Corporation. Id. Additionally, the Court ordered that the portion of its May 11, 2009, order that held Hammer liable for attorneys' fees of the National Gold Exchange movants in bringing a motion for an order to show cause be vacated. Id. Finally, the Court ordered that in the third and fifth paragraphs of its May 11, 2009, order, "Bilzerian's miscellaneous action against Ernest B. Haire, Case No. 08-mc-212 in the Bankruptcy Court for the Middle District of Florida" be replaced with: "Bilzerian's miscellaneous action against Ernest B. Haire, Case No. 08-mc-102 in the United States District Court for the Middle District of Florida." Id. The Court's May 11, 2009, order remains unmodified in all other respects. Id. at 3.
2. Hammer also requests that the Court analyze his first motion to vacate under Rule 59(a), but that rule provides for new trials and, as such, is inapplicable here. Fed. R.Civ.P. 59(a).
3. Hammer presents variations of this argument intermittently and in multiple forms in his First Motion to Vacate. At one point, he cites a D.C. Circuit opinion for the proposition that "[w]here, as here, a court's ruling has discretionary elements based on circumstances which are subject to alteration, the law recognizes the power and responsibility of the court to reconsider its ruling if a material change in circumstances has in fact occurred." See First Mot. to Vacate 6, August 9, 2010, ECF No. 1099 (citing Hodgson v. United Mine Workers of Am., 473 F.2d 118, 125 (D.C.Cir.1972)). The problem is that there has been no such material change in circumstances here. The Court based its Contempt Orders on Hammer's blatant violation of its 2001 Order. As discussed above, although Hammer was right to withdraw from the Steffen and Puma lawsuits—as the 2010 Order required him to—that action does not and cannot bring him into compliance with the 2001 Order. The moment he began pursuing the lawsuits he was in out-and-out violation of the 2001 Order, and contempt was appropriate. No circumstances have since changed that merit vacation of the Court's Contempt Order.