Kampuries v. American Honda et al

Filing 67

ORDER. For the reasons set forth herein, plaintiff's motion to reopen this case is denied. In light of the fact that plaintiff's motion to reopen the case is denied, the Court need not reach plaintiff's request to transfer the case to the United States District Court for the Southern District of Florida. Ordered by Judge Joseph F. Bianco on 7/17/2018. CM by Chambers. (Karamigios, Anna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
N-o 15-CV-5061 (JFB)(AKT)
_____________________

ANDREW KAMPURIES,
Plaintiff,
VERSUS

AMERICAN HONDA MOTOR CO., INC., TRW AUTOMOTIVE HOLDINGS CORP., AND
AUTOLIV ASP. INC.,
Defendants.

___________________
MEMORANDUM AND ORDER
July 17, 2018
___________________

JOSEPH F. BIANCO, District Judge:
On September 6, 2016, the Court
dismissed pro se plaintiff’s claims against
American Honda Motor Co., Inc. (“Honda”),
TRW Automotive Holdings Corp. (“TRW”),
and Autoliv Asp. Inc. (“Autoliv,” and
collectively, “defendants”), and ordered the
Clerk of the Court to enter judgment and
close this case. Plaintiff now moves to
reopen and transfer the case to a pending
class action in the United States District
Court for the Southern District of Florida
(“the Takata MDL”). For the reasons that
follow, plaintiff’s motion is denied.

I. BACKGROUND
Plaintiff’s case arose from a December
2007 car accident in which plaintiff struck a
tree while driving his 2006 Honda Civic.
(ECF No. 59 at 1.) Plaintiff claimed that,
although he was traveling at 55 miles per
hour, his driver side airbag did not deploy
upon impact. (Id.) Over seven years later, on
April 6, 2015, allegedly prompted by an
October 2014 recall notice he received
concerning malfunctioning Takata brand
airbags installed in certain Honda vehicles,
plaintiff filed a complaint against Honda and
Takata Airbag Corporation in the Southern
District of Florida as part of a pending class
action related to defective Takata airbag
inflators used in Honda vehicles. (Id. at 2.)

It was later determined that plaintiff’s vehicle
contained an Autoliv, not a Takata, airbag
inflator, and therefore his case was removed
from the class action and transferred to this
Court on August 31, 2015. (Id.; see also
Transfer Order, ECF No. 21.)

The basis for plaintiff’s motion to reopen
this case appears to be a January 10, 2017
recall notice he received from Honda for the
passenger side Takata airbag inflator in his
previously owned 2006 Honda Civic. (ECF
No. 61 at 4-7.) That recall notice provides,
“the passenger frontal airbag inflator in your
vehicle may rupture when deploying during a
crash.” (Id. at 5.) Plaintiff now contends that
this 2017 recall notice demonstrates that his
“case was misrepresented by false and
misleading information provided by the
[defendants’] attorney during the initial
trial.” (ECF No. 64 at 1.) Specifically,
plaintiff points to a November 25, 2015
declaration by John Turley in further support
of Honda’s motion to dismiss that stated, “the
[supplemental restraint system] in Mr.
Kampuries’ 2006 Civic was not equipped
with a Takata brand SRS inflator; and so, the
subject 2006 Civic . . . was not within the
population of vehicles recalled; that is true
for both the driver and for the passenger side
airbags or SRS.” (ECF No. 49 at 19.) That
declaration continues, “I have also confirmed
that Mr. Kampuries’ 2006 Civic was not
subject to any Recall or Service Bulletin for
the repair, replacement or correction of any
known technical condition(s) with respect to
the performance or the function of that
vehicle’s SRS, or Autoliv SRS inflators that
were installed.” (Id.)

Plaintiff filed an Amended Complaint
against defendants on September 21, 2015.
(ECF No. 33.) The Amended Complaint
added Autoliv and TRW as defendants, and
alleged claims for negligence (including
design defect, manufacturing defect, and
failure to warn) and fraudulent concealment.
(See generally id.)
By Order dated
September 6, 2016, this Court dismissed
plaintiff’s claims, concluding that his
negligence and fraudulent concealment
claims were barred by the statute of
limitations. (ECF No. 59 at 4-7.) The Court
further held that, even if plaintiff’s fraudulent
concealment claim was timely, it failed to
state a cause of action because it was not pled
with the requisite particularity. In particular,
the Court held that plaintiff failed to allege
that defendants were aware that plaintiff’s
airbag was defective, that they concealed this
information from him, or that they made any
misrepresentations to him. (Id. at 7-8.) The
Court denied plaintiff leave to re-plead his
claims, as they were time-barred and there
was no basis for equitable tolling. (Id. at 8.)
More than one year later, by letters dated
November 27, 2017, plaintiff moved to
reopen and transfer the case to the Takata
MDL. (ECF Nos. 61-62.) Defendant Honda
opposed the motion by letter filed on
December 5, 2017. (ECF No. 63.) On
December 22, 2017, plaintiff filed a reply
letter in support of his motions. (ECF No.
64.) Honda filed a supplemental letter in
opposition to plaintiff’s motion on December
29, 2017. (ECF No. 66.)

In response to the instant motions, Honda
denies that any misrepresentation or false
information was transmitted during the
underlying case.
(ECF No. 63 at 1.)
Although Honda acknowledges that John
Turley’s
declaration
contained
“an
unfortunate and inartful recitation about the
non-deployed passenger airbag,” it contends
that the passenger side airbag, which is the
subject of the January 2017 recall notice, was
not at issue in this case. (Id.) Further, Honda
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maintains that the driver side airbag in
plaintiff’s vehicle was manufactured by
Autoliv, not Takata, and did not deploy at the
time of plaintiff’s accident. (Id.) Therefore,
Honda contends, the January 2017 recall
notice has no relation to this case or the
Takata MDL. (Id.)

Fed. R. Civ. P. 60(b). Under Rule 60(c),
motions made pursuant to Rule 60(b) “must
be made within a reasonable time,” and
motions based on grounds (1), (2), and (3)
must be made “no more than a year after the
entry of the judgment or order or the date of
the proceeding.” Fed. R. Civ. P. 60(c)(1).
The provisions are mutually exclusive, see
Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 393 (1993), and a
court “may treat a motion to vacate a prior
judgment as having been made under
60(b)(6) only if the other, more specific
grounds for relief encompassed by the rule
are inapplicable,” Maduakolam v. Columbia
Univ., 866 F.2d 53, 55 (2d Cir. 1989); see
also Oparaji v. N.Y.C. Dep’t of Educ., No.
00-CV-5953, 2006 WL 2220836, at *2
(E.D.N.Y. July 20, 2006) (quoting
Maduakolam, 866 F.2d at 55). Relief under
the catch-all provision of Rule 60(b)(6) is
reserved for cases presenting “extraordinary
circumstances.” See Rodriguez v. Mitchell,
252 F.3d 191, 201 (2d Cir. 2001).

II. STANDARD OF REVIEW
“Federal Rule of Civil Procedure 60(b)
governs motions for relief from a final
judgment or order and provides six
independent grounds for relief.” Burda
Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d
Cir. 2005). The Second Circuit has instructed
that Rule 60(b) is “extraordinary judicial
relief” and can be granted “only upon a
showing of exceptional circumstances.”
Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.
1986); accord United States v. Bank of N.Y.,
14 F.3d 756, 759 (2d Cir. 1994). Rule 60(b)
provides:
On motion and just terms, the court
may relieve a party . . . from a final
judgment, order, or proceeding for the
following reasons: (1) mistake,
inadvertence, surprise, or excusable
neglect; (2) newly discovered
evidence that, with reasonable
diligence, could not have been
discovered in time to move for a new
trial under Rule 59(b); (3) fraud . . . ,
misrepresentation, or misconduct by
an opposing party; (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.

In evaluating a Rule 60(b) motion, courts
in this circuit also require that the evidence in
support of the motion be “highly
convincing,” that the movant show good
cause for the failure to act sooner, and that no
undue hardship be imposed on the other
parties as a result. See, e.g., Kotlicky v. U.S.
Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir.
1987); Williams v. N.Y.C. Dep’t of Corr., 219
F.R.D. 78, 84 (S.D.N.Y. 2003). Although a
pro se motion is read liberally and interpreted
to raise the strongest arguments suggested, “a
pro se litigant is not excused from the
requirement of producing highly convincing
evidence to support a Rule 60(b) motion.”
Alvarado v. Manhattan Worker Career Ctr.,
No. 01 Civ. 9288(CBM), 2003 WL
22462032, *2 (S.D.N.Y. Oct. 30, 2003);
accord Hall v. N. Bellmore Sch. Dist., 083

CV-1999 (PKC), 2016 WL 4005792, *2
(E.D.N.Y. July 25, 2016).

B. Plaintiff’s Motion Lacks Merit
Even if plaintiff’s motion was timely, his
motion lacks merit and should be denied on
that ground as well. First, plaintiff fails to
proffer evidence that is “of such importance
that it probably would have changed the
outcome” as required under Rule 60(b)(2).
See Azkour v. Little Rest Twelve, No. 10-CV4132, 2017 WL 1609125, at *5 (S.D.N.Y.
Apr. 28, 2017) (citing United States v. Int’l
Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir.
2001)). As noted, in support of his motion,
plaintiff has submitted a recall notice dated
January 10, 2017 regarding the front
passenger side airbag of his 2006 Honda
Civic. (ECF No. 61 at 4-7.) Specifically, the
notice provides, “THE PASSENGER
FRONTAL AIRBAG INFLATOR IN
YOUR VEHICLE MAY RUPTURE WHEN
DEPLOYING DURING A CRASH
. . . HONDA SUGGESTS THAT YOU
AVOID HAVING A PASSENGER SIT IN
THE FRONT PASSENGER’S SEAT
UNTIL THE RECALL REPAIR HAS BEEN
PERFORMED.” (Id. at 5.) On its face, the
recall notice for front passenger side airbags
is not relevant to plaintiff’s contention that
his Honda Civic’s driver side airbag failed to
operate during a 2007 crash. In other words,
because plaintiff’s case involved only the
driver side airbag, a recall of Honda’s
passenger side airbags does not now bring
plaintiff’s claims to life. Thus, plaintiff’s
negligence claim, which was dismissed as
untimely, and his fraudulent concealment

III. DISCUSSION
For the following reasons, the Court
concludes that plaintiff’s motion to reopen
the case is time-barred and fails on the merits.
A. Plaintiff’s Motion is Untimely
Though not specifically stated, it appears
that plaintiff is moving to reopen his case
under Rule 60(b)(2) regarding newly
discovered evidence and Rule 60(b)(3)
regarding misrepresentations by defendants. 1
A motion under each of these provisions must
be made “no more than a year after the entry
of the judgment or order or the date of the
proceeding.” Fed. R. Civ. P. 60(c)(1). This
one-year limitations period is “absolute.”
E.g., Warren v. Garvin, 219 F.3d 111, 114
(2d Cir. 2000); Long Island Head Start Child
Dev. Servs., Inc. v. Econ. Opportunity
Comm’n of Nassau Cty., Inc., 956 F. Supp. 2d
402, 413 (E.D.N.Y. 2013).
Here, the Court entered final judgment on
September 6, 2016. (ECF No. 60.) Plaintiff
filed the instant motion to reopen more than
fourteen months later on November 27, 2017.
(ECF No. 61.) Thus, because plaintiff’s
motion to reopen was not made within one
year from entry of final judgment, as required
for motions made under Rules 60(b)((2) and
(3), his motion to reopen is time-barred.

1

which allege newly discovered evidence and
misrepresentation under Rules 60(b)(2) and (3).
Maduakolam, 866 F.2d at 55; see also Oparaji, 2006
WL 2220836, at *2. Second, relief under the catch-all
provision of Rule 60(b)(6) is reserved for cases
presenting “extraordinary circumstances.” Rodriguez,
252 F.3d at 201. The Court finds that plaintiff has not
demonstrated any extraordinary circumstance in this
case that would merit relief from the judgment.

To the extent that plaintiff’s motion could be
construed as seeking relief under Rule 60(b)(6)
regarding “other reason[s] justifying relief,” the Court
rejects such a claim. First, a court “may treat a motion
to vacate a prior judgment as having been made under
60(b)(6) only if the other, more specific grounds for
relief encompassed by the rule are inapplicable”—a
situation not present here, as plaintiff offers grounds

4

claim, which was dismissed as untimely and
without merit, are not supported by this
alleged new evidence of a recent passenger
side airbag recall. Put simply, plaintiff’s
proffered “new evidence” would not have
changed the Court’s September 6, 2016
Memorandum and Order dismissing
plaintiff’s claims.

previously determined motion. See Fleming,
865 F.2d at 484.
In the instant case, plaintiff appears to
allege that Honda misrepresented, by way of
a declaration submitted in support of its
motion to dismiss, that neither the driver side
airbag nor the passenger side airbag were
manufactured by Takata. (See generally ECF
No. 64.) However, according to Honda, the
declaration “contained an unfortunate and
inartful recitation about the non-deployed
passenger airbag,” which “was not even at
issue, nor did it require mention during the
motion practice.” (ECF No. 66 at 1.) Honda
points out that the driver side airbag in
plaintiff’s vehicle was the only airbag at issue
in the case, and that airbag was manufactured
by Autoliv, not Takata, and therefore was not
subject to the Takata recall. (Id. at 1-2.)
Thus, any mention of the passenger side
airbag by Honda was extraneous and
irrelevant to the Court’s decision to dismiss
plaintiff’s claims.

Second, plaintiff’s contention that his case
was “misrepresented by false and misleading
information,” (ECF No. 64 at 1), also lacks
merit. In a Rule 60(b)(3) motion, the moving
party must demonstrate by clear and
convincing evidence that the adverse party
engaged in fraud, misrepresentation, or other
misconduct. See Fleming v. N.Y. Univ., 865
F.2d 478, 484 (2d Cir. 1989); see also
Travelers Cas. & Sur. Co. v. Crow & Sutton
Assocs., 228 F.R.D. 125, 128 (N.D.N.Y.
2005) (“[A] party may not use Rule 60(b) to
relitigate the merits of his claim.”), aff’d, 172
F. App’x 382 (2d Cir. 2006). “To prevail on
a Rule 60(b)(3) motion, a movant must show
that the conduct complained of prevented
[him] from fully and fairly presenting his
case[,]” State St. Bank & Tr. Co. v.
Inversiones Errazuriz Limitada, 374 F.3d
158, 176 (2d Cir. 2004), “and that the fraud is
attributable to the party or, at least, to
counsel,” Long Island Head Start Child Dev.
Servs., Inc., 956 F. Supp. 2d at 410; see also
Thomas v. City of New York, 293 F.R.D. 498,
503 (S.D.N.Y. 2013) (“To prevail on a
motion . . . pursuant to Fed. R. Civ. P.
60(b)(3), the movant must show that (1) the
adverse
party
engaged
in
fraud,
misrepresentation or misconduct by clear and
convincing evidence and that (2) such
misconduct substantially interfered with the
movant’s ability to fully and fairly present its
case.”). A Rule 60(b)(3) motion cannot serve
as an attempt to relitigate the merits of a

Plaintiff’s motion papers collectively refer
to the “airbags” in his Honda Civic (see ECF
No. 61 at 1; ECF No. 64 at 1); however, the
only airbag at issue in the underlying case
was the driver side airbag. The driver side
airbag remains unaffected by this recent
recall. Further, in the underlying case,
plaintiff argued that the driver side airbag did
not deploy at all, not that it “rupture[d]” in the
manner described in the passenger side
airbag recall notice. In sum, plaintiff cannot
show by clear and convincing evidence that
the alleged misrepresentations in Honda’s
declaration were material or prevented
plaintiff from fully presenting his case. See
Fleming, 865 F.2d at 484; State St. Bank, 374
F.3d at 176. Therefore, even if plaintiff’s
motion to reopen had been timely, it fails to
5

satisfy Rule 60(b)(3).
plaintiff's motion is denied.

Accordingly,

IV. CONCLUSION
For the foregoing reasons, the Court
concludes that plaintiffs motion to reopen
the case is time-barred and fails on the
merits. 2 Accordingly, the Court denies
plaintiff's motion.

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Dated: July 17; 2018
Central Islip, NY

***
Plaintiff proceeds pro se. American Honda
Motor Co., Inc. is represented by Grace Jang
of Segal McCambridge Singer & Mahoney,
Ltd., 850 Third Avenue, Suite 1100, New
York, New York 10022. TRW Automotive
Holdings Corp.' is represented by James C.
U ghetta and Brian Keith Gibson of Littleton
Joyce U ghetta Park & Kelly LLP, 4
Manhattanville Road, Suite 202, Purchase,
New York 10577, and Matthew Coveler and
Benjamin T. Zinnecker of Weinstein Tippetts
& Little LLP, 7500 San Felipe, Suite 500,
Houston, Texas 77063. Autoliv Asp. Inc. is
represented by Peter Joseph Fazio of
Aaronson, Rappaport, Feinstein & Deutsch,
600 Third Avenue, New York, New York
10016.

rule on plaintiffs motion to transfer the case to the
Southern District of Florida.

2 In light of the fact that plaintiffs motion to reopen
the case is denied, it not necessary for the Court to

6