Esposito v. The State of New York et al
Filing
105
MEMORANDUM OPINION AND ORDER: For the reasons stated above, Esposito's Motion to Reopen is denied. The Clerk of the Court is directed to close the Motion to Re-Open (Docket Entry # 103). (Signed by Judge Shira A. Scheindlin on 11/13/2012) (pl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------)(
LUISA ESPOSITO,
MEMORANDUM
OPINION AND ORDER
Plaintiff,
07 Civ. 11612 (SAS)
- againstTHE STATE OF NEW YORK, et aI.,
Defendants.
-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
Pro se plaintiff Luisa Esposito brought the above-captioned action
pursuant to 42 U.S.C. § 1983 ("section 1983") and state law against the State of
New York; the City of New York; the Office of Court Administration of the
Unified Court System of New York; various individuals in their employ
(col1ectively, the "State Defendants"); and certain attorneys in private practice.
Esposito alleged that Allen H. Isaac, a civil attorney whom Esposito consulted
with regard to a legal matter arising from a car accident, sexually assaulted her.
She claims that her complaints to various state agencies were ignored due to an
alleged conspiracy to protect Isaac. Esposito argued that defendants violated her
rights to petition the Government for redress of grievances, to equal protection, and
to due process under the First and Fourteenth Amendments to the United States
1
Constitution. Esposito also brought several state law claims including breach of
contract and assault.
On August 8, 2008, this Court dismissed the above-captioned case
along with five other cases that were filed as related to Anderson v. State ofNew
York, 07 Civ. 9599 (SAS).l In these six actions, all of which involved alleged
corruption in the New York State courts, the plaintiffs alleged an underlying
wrongdoing by an attorney, followed by a complaint to a disciplinary committee,
followed by the disciplinary committee's failure to take action. This Court
dismissed these actions, stating that:
the United States Constitution does not permit this Court to
supervise the departmental disciplinary committees or
review the decisions of the courts of New York State.
Regardless of the possibility of corruption in the courts of
the State of New York, the only federal court that may
review their decisions is the United States Supreme Court.
Plaintiffs must direct their complaints to the state court
system, the Attorney General for the State of New York, or
the appropriate United States Attorney. Because the Court
lacks jurisdiction to review the decisions of the
departmental disciplinary committees, and for the other
See Esposito v. State ofNew York, Nos. 07 Civ. 11612,08 Civ. 2391,
08 Civ. 3305,08 Civ. 4438, 08 Civ. 5455,08 Civ. 6368,2008 WL 3523910
(S.D.N.Y. Aug. 8, 2008) (the "Aug. 8,2008 Order"). The Anderson case, which
was a sexual harrasmentldiscriminationlretaliation case, went to trial. The jury
returned a verdict in favor of the defendants on October 29,2009, and her
Complaint was subsequently dismissed.
2
reasons stated below, these actions are dismissed. 2
Esposito timely moved for reconsideration of the Aug. 8, 2008 Order,
which this Court denied in an Order dated August 20,2008. 3 On September 1,
2010, more than two years later, Esposito moved to reopen her case under Federal
Rule of Civil Procedure 60(b) on the basis of newly discovered evidence. That
motion was also denied. 4 Esposito appealed both the Aug. 8, 2008 Order and the
denial of her Rule 60(b) motion to reopen. Both decisions were affirmed by the
Second Circuit, which stated as follows:
Further, a governmental failure to protect an individual
from private violence does not implicate a victim's due
process rights unless the state actor created or enhanced the
danger to the victim, which [Esposito] did not allege. Nor
did [Esposito] allege any facts to suggest that she was
intentionally discriminated against based on her gender or
that she suffered any treatment disparate from similarly
situated individuals that would support a "class-of-one"
equal protection theory. Accordingly, [Esposito's]
complaint failed to state a claim and was properly
dismissed. Moreover, it would have been futile to give
[Esposito] leave to amend her complaint because she had
already amended it twice. Finally, we find that the district
court did not abuse its discretion in denying [Esposito's]
2
Id. at*l.
3
See Electronic Case Filing ("ECF") Docket Entry # 72 in case number
07 Civ. 11612.
See Esposito v. New York, No. 07 Civ. 11612,2010 WL 4261396
(S.D.N.Y. Oct. 25, 2010).
4
3
Rule 60(b) motion because she demonstrated no
"exceptional circumstances" that would justify setting aside
the dismissal of her complaint. 5
Esposito now moves, yet again, to reopen her case under Rule 60(b)
and (d)(3) on the basis of newly discovered evidence (the "Motion to Reopen,,).6
In particular, Esposito bases her Motion to Reopen on "[n]ewly discovered
evidence pertaining to: "[ 1] the recent [civil] filing of Attorney Nicole Corrado, [2]
Plaintiffs witness, Ileana Filomeno (victim of Defendant, Allen H. Isaac) and [3]
the Matter of Steven S. Greenberg.,,7 For the following reasons, Esposito's second
Motion to Reopen, which is her third motion challenging the finality of the Aug. 8,
2008 Order, is denied.
I.
LEGAL STANDARDS
A.
Rule 60(b) in General
"Rule 60(b) was intended to preserve the delicate balance between the
sanctity of final judgments and the incessant command of the court's conscience
See Esposito v. New York, 355 Fed. App'x 511, 513 (2d Cif. 2009)
(Summary Order) (citations omitted).
5
6
Esposito does not specifically mention the subsection of Rule 60(b) on
which she is relying, but it is clear that Rule 60(b )(2) applies given her allegations
of "newly discovered evidence." In addition, although Esposito cites Rule 60(d)(3)
in support of her Motion to Reopen, she fails to offer any explanation of how that
subsection applies to any of her new allegations.
7
1012112 Affirmation in Support of Motion to Reopen
4
,r 1("PI. Aff.").
that justice be done in light of all the facts.,,8 Rule 60(b) does not provide a party
with the opportunity to relitigate the merits of a case in an attempt to win a point
already "carefully analyzed and justifiably disposed."9 Accordingly, motions for
relief from judgment under Rule 60(b) are generally disfavored in the Second
Circuit. 10
Rule 60(b) provides that a district court may relieve a party from a
final judgment in six enumerated circumstances. II The Second Circuit has held
Smalls v. United States, 471 F.3d 186,191 (D.C. Cir. 2006) (quotation
marks, ellipses, and citation omitted). Accord Nemaizer v. Baker, 793 F.2d 58,61
(2d Cir. 1986) ("Properly applied, Rule 60(b) strikes a balance between serving the
ends ofjustice and preserving the finality ofjudgments. In other words, it should
be broadly construed to do substantial justice, yet final judgments should not be
lightly reopened.") (quotation marks and citations omitted).
8
In re Bulk Oil (USA) Inc., No. 89-B-13380, 2007 WL 1121739, at *10
(S.D.N.Y. Apr. 11,2007) (stating that a court should not "reconsider issues already
examined simply because [a party] is dissatisfied with the outcome of his case. To
do otherwise would be a waste ofjudicial resources.") (quotation marks and
citation omitted).
9
See Empresa Cuban a Del Tabaco v. General Cigar Co. Inc., No.
08-5878-cv, 2010 WL 2759416, at *1 (2d Cir. July 14,2010) ("We have
cautioned, however, that Rule 60(b) motions are disfavored ....") (citing Pichardo
v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004)); Simone v. Prudential Ins. Co. of
America, No. 05-3202-CV, 2006 WL 166490, at * 1 (2d Cir. Jan. 24, 2006);
United States v. International Bhd. of Teamsters, 247 F.3d 370,391 (2d Cir. 2001).
10
A court may relieve a party from a final judgment 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 (whether
11
5
that "[m lotions under rule 60(b) are addressed to the sound discretion of the district
court and are generally granted only upon a showing of exceptional
circumstances."J2 Finally, "pro se litigants are not ... excused from the
requirement that they produce 'highly convincing' evidence to support a Rule
60(b) motion."13 "The heavy burden for securing relief from final judgments
applies to pro se litigants as well as those represented by counsel."J4
B.
Rule 60(b )(2)
Rule 60(b )(2) provides relief from a final judgment where there is
"newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b)[.]" A Rule 60(b)(2)
motion may be granted if the moving party can demonstrate the following:
previously called intrinsic or extrinsic), 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." Fed. R. Civ. P. 60(b)(l) - (6).
Mendell in behalfof Viacom, Inc. v. Gollust, 909 F .2d 724, 731 (2d
Cir. 1990) (citing Nemaizer, 793 F.2d at 61). Accord Paddington Partners v.
Bouchard, 34 F.3d 1l32, 1142 (2d Cif. 1994).
12
13
Gi/v. Vagi/ana, l31 F. Supp. 2d486, 494 (S.D.N.Y. 2001).
Broadway v. City ofNew York, No. 96 Civ. 2798, 2003 WL
21209635, at *3 (S.D.N.Y. May 21,2003).
14
6
"(1) the newly discovered evidence was of facts that existed
at the time of trial or other dispositive proceeding, (2) the
movant must have been justifiably ignorant of them despite
due diligence, (3) the evidence must be admissible and of
such importance that it probably would have changed the
outcome, and (4) the evidence must not be merely
cumulative or impeaching."ls
Finally, motions made pursuant to Rule 60(b )(2) must be made no more than one
year after the entry ofjudgment. 16
c.
Rule 60(d)(3)
Rule 60(d)(3) permits a court to "set aside a judgment for fraud on the
court." "Fraud on the court consists of conduct: '1) on the part of an officer of the
court; that 2) is directed to the judicial machinery itself; 3) is intentionally false,
willfully blind to the truth, or is in reckless disregard of the truth; 4) is a positive
averment or a concealment when one is under a duty to disclose; and 5) deceives
International Bhd. of Teamsters, 247 F.3d at 392 (quoting United
States v. International Bhd. ofTeamsters, 179 F.R.D. 444,447 (S.D.N.Y. 1998».
Accord Kotlicky v. United States Fid. Guar. Co., 817 F .2d 6, 9 (2d Cir. 1987)
(setting forth the following three-prong test in order for a Rule 60(b) motion to
succeed: (1) "the evidence in support of the motion to vacate a final judgment
[must] be 'highly convincing,'" (2) the moving party must "show good cause for
the failure to act sooner," and (3) the moving party must show "that no undue
hardship [would] be imposed on other parties.").
15
See Fed. R. Civ. P. 60(c)(l) ("A motion under Rule 60(b) must be
made within a reasonable time - and for reasons (1), (2), and (3) no more than a
year after the entry of the judgment or order or the date of the proceeding.").
16
7
the court. ",17 Fraud on the court refers to "the most egregious conduct involving a
corruption of the judicial process itself. Treatises speak of such flagrant abuses as
bribing a judge, employing counsel to exert improper influence on the court, and
jury tampering."18
II.
DISCUSSION
The alleged newly discovered evidence is irrelevant because all of the
factual allegations in Esposito's Complaint were presumed true when her case was
dismissed in August 2008. Esposito's Complaint was not dismissed because of a
lack of evidence but rather on legal grounds. Once the federal claims were
dismissed, this Court declined to exercise supplemental jurisdiction over the
remaining state law claims. 19
Johnson v. Bell, 605 F.3d 333,339 (6th Cir. 2010) (quoting Carter v.
Anderson, 585 F.3d 1007, 1011-12 (6th Cir. 2009».
17
18
General Medicine, P.e. v. Horizon/CMS Health Care Corp., 475 Fed.
App'x 65, 71 (6th Cir. 20 12) (quotation marks and citations omitted).
See Esposito, 2008 WL 3523910, at *14. ("When a plaintiff has not
alleged diversity jurisdiction and her federal claims fail as a matter of law, courts
generally decline to exercise supplemental jurisdiction over remaining state law
claims. In these cases, all federal law claims have been dismissed and there is no
reason to depart from this general rule. I therefore dismiss plaintiffs' state law
claims. Plaintiffs' underlying disputes are more appropriate for litigation in state
court.").
19
8
Furthermore, Esposito has failed to show how the three categories of
her alleged newly discovered evidence are relevant to her previously dismissed
claims. First, Corrado's civil action against the New York State Unified Court
System alleges sexual harassment, discrimination and retaliation under Title VII of
the Civil Rights Act of 1964. 20 The allegations made by Corrado upon which
Esposito relies relate to the chilling of Corrado's testimony in the Anderson case.
Thus, nothing in the Corrado Complaint is remotely relevant to any of the claims
previously brought by Esposito. Nor does the Corrado Complaint support
Esposito's allegation regarding "systemic corruption" within the Departmental
Disciplinary Committee for the First Judicial Department ("DDC,,).21 Second,
Esposito merely mentions Ileano Filomeno as a new witness but there is no
substantive discussion of how Filomeno's proposed testimony would warrant
reopening Esposito's action. In any event, Filomeno was identified as a new
witness in Esposito's first motion to reopen which was rejected by this Court. 22
Third, although Esposito includes an excerpt regarding the Matter of Steven S.
See Corrado v. New York State Unified Court System, No. CV 12
1748 (E.D.N.Y. Apr. 10,2012) (the "Corrado Complaint") ~~ 64-69.
20
21
PI. Aff'l
See Plaintiffs Motion to Re-Open Docket No.: 07-CV-11612 (SAS)
at 6 (ECF Docket Entry # 80).
22
9
Greenberg, presumably from some sort of disciplinary proceeding, she fails to
mention how Greenberg's transgressions are related to her action. Other than
twice citing Matter ofIsaac, 23 the Greenberg excerpt appears wholly unrelated to
any of Esposito's claims.24 Thus, none of the allegations in the Esposito
Affirmation actually represent newly discovered evidence, much less support a
claim of fraud on the court.
In sum, none of the allegedly new evidence offered by Esposito serves
to abrogate or waive the State Defendants' Eleventh Amendment immunity. Nor
does it establish that the individual State Defendants are no longer entitled to
absolute judicial or quasi-judicial immunity or that the private attorneys were state
actors. Thus, the issues raised by Esposito do not alter this Court's prior legal
conclusions regarding the viability of her federal claims and the reason this Court
declined to exercise supplemental jurisdiction over her state claims. Accordingly,
there is nothing in Esposito's Affirmation that supports reopening her case under
76 A.D.3d 48 (1st Dep't 2010). Matter ofIsaac discusses the
disciplinary proceedings brought against Isaac by the DDC and the resulting
sanction.
23
F or the record, Isaac was suspended from the practice of law for six
months for sexually harassing Esposito. See id. at 52 ("Considering respondent's
age and his long and unblemished record practicing law (see e.g. Matter of Lubell,
285 AD2d 267 [2001]; Matter ofEinhorn, 88 AD2d 95 [1982] [where the
attorney's age was considered in determining the appropriate sanction J),
respondent is suspended for a six-month period.").
24
10
Rule 60(b )(2) or (d)(3).
Alternatively, Esposito's Motion to Reopen is time-barred given that
her case was dismissed on August 8, 2008. Rule 60(c)(1) states that: "A motion
under Rule 60(b) must be made within a reasonable time." But motions based on
newly discovered evidence under Rule 60(b)(2) must be made "no more than a
year after the entry of the judgment or order or the date of the proceeding." Here,
Esposito's second Motion to Reopen was filed on October 9,2012, more than four
years after the Aug. 8,2008 Order was issued. Hence, to the extent Esposito is
moving under Rule 60(b )(2), that motion is untimely. And while Rule 60( d)(3)
does not contain any express limitations period, the claims raised in Esposito's
Affirmation in no way support the type of fraud claim that would warrant relief
under that subsection. Accordingly, the instant motion is time-barred.
III.
CONCLUSION
For the reasons stated above, Esposito's Motion to Reopen is denied.
The Clerk of the Court is directed to close the Motion to Re-Open (Docket Entry #
103).
11
SO ORDERED:
Dated:
New York, New York
November 13, 2012
12
- Appearances
Plaintiff (Pro Se):
Luisa C. Esposito
571 Roy Street
West Hempstead, NY 11552
(516) 741-0320
For the State Defendants:
For Harvey Gladstein & Partners:
Monica A. Connell
Assistant Attorney General
120 Broadway, 24th Floor
New York, NY 10271
(212) 416-6009
Traycee Ellen Klein, Esq.
Epstein, Becker & Green, P. C.
250 Park A venue
New York, NY 10177
(212) 351-4812
For the City Defendants:
For Pollack Defendants:
Philip Frank
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, NY 10007
(212) 788-0893
Anthony Daniel Grande, Esq.
Morgan, Melhuish, Monaghan
39 Broadway, 35th Floor
New York, NY 10006
(646) 388-6448
For Allen H. Isaac:
Joshua S. Hurwit, Esq.
Gordon & Rees, LLP
90 Broad Street, 23rd Floor
New York, NY 10004
(212) 453-0708
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?