Twersky et al v. Yeshiva University et al
MEMORANDUM OPINION & ORDER re: 42 MOTION for Reconsideration Notice of Motion, dated February 17, 2015, seeking Reconsideration of this Court's January 30, 2014 Opinion and Order (Doc. No. 35) and January 30, 2014 Judgment (Doc. No. 36). filed by Mordechai Twersky.The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed above, they are either moot or without merit. For the foregoing reasons, the motion for reconsideration is denied. The Clerk is directed to close Docket Number 42. (As further set forth in this Opinion.) (Signed by Judge John G. Koeltl on 7/8/2015) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MORDECHAI TWERSKY ET AL.,
13 Cv. 4679 (JGK)
- against -
MEMORANDUM OPINION &
YESHIVA UNIVERSITY ET AL.,
JOHN G. KOELTL, District Judge:
The plaintiffs, thirty-four former students of Yeshiva
University High School for Boys (“YUHS”), move for
reconsideration pursuant to Federal Rule of Civil Procedure
60(b)(6) of this Court’s order dismissing the plaintiffs’
complaint and denying a motion to amend the complaint as futile.
Twersky v. Yeshiva Univ., 993 F. Supp. 2d 429 (S.D.N.Y.) aff'd,
579 F. App'x 7 (2d Cir. 2014), cert. denied, 135 S. Ct. 1702
The plaintiffs argue that a report commissioned by
defendant Yeshiva University (the “YU Report”), which was
released on August 26, 2013, provides a basis for
The motion is without merit and therefore is denied.
The Court has already set forth the facts and the
procedural background of this case in its prior opinion,
familiarity with which is assumed.
The following facts are
included because of their relevance to this motion.
The plaintiffs brought this action against YUHS, Yeshiva
University, former administrators of Yeshiva University, and
several unnamed members of the Board of Trustees of YUHS and
The plaintiffs asserted causes of action
for fraud, negligence, violation of New York's General Business
Law, and violation of Title IX of the Education Amendments Act
of 1972 (“Title IX”).
The plaintiffs filed this lawsuit roughly
twenty-one years after the last plaintiff had left YUHS.
defendants moved to dismiss the claims as time-barred.
This Court assumed arguendo that Title IX includes a
discovery rule, but concluded that the plaintiffs’ claims were
Specifically, this Court held that the
plaintiffs “were aware of their abuse at the time it occurred,
and of the identity of their abusers and those who employed
them—thus, had the plaintiffs approached an attorney prior to
their turning twenty-one, they could have brought their claims
under Title IX.”
Twersky, 993 F. Supp. 2d at 440.
because the action was filed over three years after “each
plaintiff should have become aware of the alleged Title IX
violation, even taking account of tolling for infancy, the
federal discovery rule would not save the Title IX claim from
the applicable time bar.”
Id. at 441.
This Court also denied the plaintiffs’ motion for leave to
file a Second Amended Complaint pursuant to Rule 15(a) of the
Federal Rules of Civil Procedure.
The plaintiffs argued that
the YU Report, which was released after the plaintiffs had filed
the First Amended Complaint, included new and relevant facts.
This Court, however, held that because “the new information that
has come to light has no bearing on the fact that all claims in
the First Amended Complaint are untimely as a matter of law,
repleading in this action would be futile.”
Id. at 452.
In September 2014, the Second Circuit Court of Appeals
affirmed this Court’s judgment.
As to the timeliness of the
Title IX claim, the Court of Appeals held: “Even if we were to
conclude that, in pursuing their Title IX claim, plaintiffs are
entitled to the benefits of the discovery accrual rule . . ., we
would have to conclude, as the district court did, that the
Title IX claim is untimely.”
Twersky, 579 F. App’x at 9. The
Court of Appeals explained that “[w]hen plaintiffs left YUHS,
more than 20 years before filing this suit on July 8, 2013, they
were unquestionably aware of (1) their injuries, (2) their
abusers’ identities, and (3) their abusers' prior and continued
employment at YUHS.
This information was sufficient to put them
on at least inquiry notice as to the school's awareness of and
indifference to the abusive conduct by its teachers.”
Id. at 9–
As to the motion to amend, the Court of Appeals held that
“the proposed amendments included only further allegations of
defendants’ knowledge of prior abuse, which, for reasons already
explained, would not have rendered plaintiffs' claims timely.”
Id. at 12.
The plaintiffs filed a petition for a panel rehearing or
rehearing en banc, which Court of Appeals denied in October
The plaintiff then filed a petition for a writ of
certiorari to the Supreme Court, which was denied in March 2015.
Twersky v. Yeshiva Univ., 135 S. Ct. 1702 (2015).
In February 2015, the plaintiffs filed this motion for
reconsideration pursuant to Rule 60(b)(6) of the Federal Rules
of Civil Procedure.
Generally, a motion under Rule 60(b) must be made prior to
However, “when ‘later events’ arise that were not
previously considered by the appellate court,” the district
court may consider a Rule 60(b) motion, even if the case has not
been remanded back to the district court.
Baldinger, 38 F.3d 1266, 1270 (2d Cir. 1994) (citing Standard
Oil Co. v. United States, 429 U.S. 17, 18 (1976)); see also
Panama Processes, S.A. v. Cities Serv. Co., 789 F.2d 991, 994
(2d Cir. 1986) (“While it is true that issues considered and
disposed of by an appellate court on appeal cannot thereafter be
altered by a district court, it may consider matters not
explicitly or implicitly decided.” (internal citations
The converse is also true: “a district court does not have
jurisdiction to alter an appellate ruling where the appellate
court has already considered and rejected the basis for the
movant’s Rule 60(b) motion.”
DeWeerth, 38 F.3d at 1270.
a party files a 60(b) motion after an appellate court has issued
a mandate in the case, therefore, the district court must ask
whether there has been a change in circumstances since the
issuance of the mandate that justifies relief.”
Ercole, No. 07cv11609, 2012 WL 6217594, at *5 (S.D.N.Y. Dec. 12,
2012), aff'd, 563 F. App'x 821 (2d Cir. 2014).
There has been no change in circumstances here.
Report was released on August 26, 2013, and this Court
considered and rejected the plaintiffs’ argument that
information in that report could render their claims timely.
Twersky, 993 F. Supp. 2d at 452.
The plaintiffs again argued on
appeal that they should be allowed to amend their complaint in
light of the YU Report.
Pls.’ App. Br. at 85–86.
Appeals rejected the argument as “meritless.”
The Court of
Twersky, 579 F.
App’x at 11–12.
The reasoning by the Second Circuit Court of Appeals was
The plaintiffs were on inquiry notice “more than 20
years before filing this suit” because “they were unquestionably
aware of (1) their injuries, (2) their abusers’ identities, and
(3) their abusers' prior and continued employment at YUHS.”
And the plaintiffs have identified no evidence in the
YU Report that would call into question these findings.
At bottom, the plaintiffs criticize the decision of the
Court of Appeals.
They argue that the “Second Circuit made a
sua sponte finding of fact,” Pls.’ Opening Br. at 20, and that
the “Second Circuit did not engage in any analysis . . . as to
whether the proposed amendment would alter its Title IX accrual
Pls.’ Reply Br. at 10.
But the Court of
Appeals’ well-reasoned decision is binding on this Court.
Accordingly, the motion for reconsideration is denied.
The Court has considered all of the arguments raised by the
To the extent not specifically addressed above, they
are either moot or without merit.
For the foregoing reasons,
the motion for reconsideration is denied.
The Clerk is directed
to close Docket Number 42.
New York, New York
July 8, 2015
John G. Koeltl
United States District Judge
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