United States District Court, D. South Carolina, Columbia Division
matter is before the court for review of Plaintiff Keith
Allen Davis' (“Plaintiff”) Motion to Vacate
Void Judgment and Motion to Set Aside Default Judgment. (ECF
No. 42.) Plaintiff, proceeding pro se and in
forma pauperis, filed his Motions on June 27,
2018. (ECF No. 42-2 at 2.) Plaintiff's
Motions seek to void a judgment from the court that was
entered, pursuant to the court's Order and Opinion, on
August 31, 2016, and he moves pursuant to Federal Rule of
Civil Procedure 12(b)(4). (ECF Nos. 42, 30.) This is
Plaintiff's second Motion to Vacate involving the
court's Order and Opinion from August 31, 2016.
(See ECF Nos. 32, 42.) Plaintiff's first Motion
to Vacate, which sought to vacate the court's Order and
Opinion from August 31, 2016, was filed in January 2017 and
denied by the court on June 28, 2017. (ECF Nos. 32, 34.)
Rule 60(c) of the Federal Rules of Civil Procedure,
“[a] motion under Rule 60(b) must be made within a
reasonable time . . . after the entry of the judgment or
order or the date of the proceeding.” Fed.R.Civ.P.
60(c). The movant bears the burden of showing timeliness.
See Moses v. Joyner, 815 F.3d 163, 166 (4th Cir.
2016) (citing Werner v. Carbo, 731 F.2d 204, 206- 07
& n.1 (4th Cir. 1984)). Whether a movant has timely filed
a Rule 60(b) motion is “[b]ased on the
circumstances” of the case. See Wells Fargo Bank,
N.A. v. AMH Roman Two NC, LLC, 59 F.3d 295');">859 F.3d 295, 300 (4th
Cir. 2017) (holding that a moving party untimely filed a Rule
60(b) motion when they “waited more than two
years” to file a Rule 60(b) motion and did not face
“hurdles to surmount” in filing the motion).
See also Days Inn Worldwide, Inc. v. Patel, 445 F.3d
899, 906 (6th Cir. 2006) (“What constitutes a
reasonable time depends on the facts of each case.”
court issued its Order and Opinion, which dismissed
Plaintiff's Complaint (ECF No. 1), on August 31, 2016.
(ECF No. 29.) The court issued its judgment on that same day.
(ECF No. 30.) The court denied Plaintiff's first Motion
to Vacate, concerning the court's Order and Opinion, on
June 28, 2017. (ECF No. 34.) Plaintiff's second Motion to
Vacate, regarding the court's judgment, was filed on June
27, 2018. (ECF No. 42.) The instant Motion to Vacate is
untimely because it involves a judgment that was entered
almost two years before its filing. (Compare ECF No.
30, with ECF No. 42-2.) Moreover, Plaintiff's
current Motion to Vacate does not identify any hurdles that
caused him to file his Motion almost two years later.
(See ECF No. 42.) Plaintiff fails to provide any
explanation for his untimeliness. (See id.) Indeed,
the United States Court of Appeals for the Fourth Circuit has
routinely held that such moves by Plaintiff are not within a
“reasonable time.” See Danielson v.
Human, 676 Fed.Appx. 198, 199 (4th Cir. 2017) (holding
that a district court did not abuse its discretion for
finding a Rule 60(b) motion as untimely when it was filed
“more than [two] years after entry of judgment”);
Wadley v. Equifax Info. Servs., LLC, 296 Fed.Appx.
366, 368 (4th Cir. 2008) (holding that a party did not file
his Rule 60(b) motion within a reasonable time when he waited
“almost two years”); McLawhorn v. John W.
Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir.
1991) (holding that a Rule 60(b) motion is not timely when it
was made “three to four months after the original
judgment and no valid reason [was] given for the delay”
(citations omitted)). Therefore, Plaintiff has failed to show
that his current Motion to Vacate is timely, and his Motion
has not been made within a “reasonable time.”
Wells Fargo Bank, N.A., 59 F.3d 295 at 300.
Additionally, Plaintiffs Motion to Vacate attempts to
re-argue the merits of his case, which this court adequately
addressed in its prior Order denying his first Motion to
Vacate. (Compare ECF No. 42, with ECF No.
32, and ECF No. 34.) For these reasons, the court
DENIES Plaintiffs Motion to Vacate Void
Judgment and Motion to Set Aside Default Judgment (ECF No.
IS SO ORDERED.
 Under the prison mailbox rule,
“a pro se litigant's legal papers are considered
filed upon ‘delivery to prison authorities, not receipt
by the clerk.'” United States v. McNeill,
523 Fed.Appx. 979, 981 (4th Cir. 2013) (quoting Houston
v. Lack, 487 U.S. 266, 275 (1988)). In the instant case,
Plaintiff delivered his Motion to Vacate Void Judgment and
Motion to Set Aside Default Judgment to prison authorities on
June 27, 2018. (ECF No. 42-2.) Therefore, pursuant to