Frederick v. Pinnacle Financial Services et al

Filing 316

ORDER: Plaintiff's April 4 Motion for review and vacatur of the Magistrate Judge's March 28 Order is DENIED. (As further set forth in this Order.) (Signed by Judge Alison J. Nathan on 6/19/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Ezekiel Frederick,
Plaintiff,
14-CV-5460 (AJN)

-vORDER
Capital One Bank (USA), N.A. et al.,
Defendants.

ALISON J. NATHAN, District Judge:
On March 24, 2017,pro se Plaintiff Ezekiel Frederick filed a document styled as a
"Motion for Miscellaneous Relief Pursuant to Rule 60(B)(2), (B)(3), B(6), D(l), and D(3)Fraud Upon Plaintiff and the Court." Dkt. No. 298 (the "March 24 Motion"). On March 28,
2017, United States Magistrate Judge Gabriel W. Gorenstein, to whom the Court has referred
this matter for general pretrial supervision, issued an Order, Dkt. No. 299 (the "March 28
Order"), tenninating the March 24 Motion as premature because it appeared to raise dispositive
issues and its submission therefore violated multiple prior Orders of this Court directing that
"[a]ny motion raising dis positive issues shall be filed on the due date to be set by Magistrate
Judge Gorenstein for the filing of all dispositive motions and not before such deadline." See,

e.g., Dkt. Nos. 191, 249 (internal quotation marks omitted). Several days later, on April 4, 2017,
Plaintiff filed a letter-motion addressed to the undersigned for review and vacatur of the
Magistrate Judge's March 28 Order, arguing that the Magistrate Judge lacked authority to issue
the March 28 Order and generally reasserting many of the same allegations set forth in Plaintiff's
original March 24 Motion. See Dkt. No. 300 (the "April 4 Motion"). For several reasons, the
Court will DENY Plaintiff's April 4 Motion.

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The March 24 Motion is somewhat difficult to decipher, but its basic thrust appears to be
that this Court's September 17, 2015 Memorandum and Order granting in part and denying in
part Defendants' motions to dismiss should be vacated because, in seeking dismissal, Defendants
and their attorneys purportedly advanced unsupportable legal arguments, made false factual
representations to Plaintiff and the Court, and withheld evidence favorable to Plaintiff. Whether
the Magistrate Judge's decision to terminate that Motion is reviewed de nova or under a clear
error standard, 1 the Court sees no basis to disturb it.
First, to the extent that March 24 Motion seeks dispositive relief - and the Court notes
that it repeatedly requests, among other things, that "judgment as a matter of law" be entered for
Plaintiff, see, e.g., March 24 Motion at 9, 37 - the Magistrate Judge was clearly correct in
observing, as noted, that this Court has repeatedly directed that parties are not to file dispositive
motions until the due date for such motions to be established by the Magistrate Judge. See, e.g.,
Dkt. Nos. 191, 249.
Second, to the extent that the March 24 Motion seeks reconsideration of the Court's
September 17, 2015 Memorandum & Order resolving Defendants' motions to dismiss, that
application is properly subject to denial on procedural grounds because the Court has already
resolved several motions requesting reconsideration or amendment of that very same.
Memorandum & Order. See, e.g., Dkt. Nos. 117, 121, 153, 249. As Courts in this District have
consistently recognized, "[a] litigant is entitled to a single motion for reconsideration." Guang

Ju Lin v. United States, 13-cv-7498, 2015 WL 747115, at *2 (S.D.N.Y. Feb. 18, 2015); see also
Montanile v. Nat'l Broadcasting Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002) ("A Comi must
narrowly construe and strictly apply Local Rule 6.3 [governing motions for reconsideration], so
as to avoid duplicative rulings on previously considered issues, and to prevent the rule from
being used as a substitute for appealing a final judgment.").
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Generally, a magistrate judge's resolution of a delegable, non-dispositive pretrial motion may be
reconsidered by a district court only if it is "clearly erroneous or contrary law," but its recommendations as to the
disposition of all other motions are subject to de nova review to the extent that a party timely lodges specific written
objections. 28 U.S.C. § 636(b)(l)(A)-(C).

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Third, to the extent that Plaintiff invokes Federal Rule of Civil Procedure 60(b) to frame
the March 24 Motion as one for relief from a final order based on newly discovered evidence
and/or fraud on the Plaintiff, that application is untimely. Motions brought under Rules 60(b)(2)
and (3) - covering new evidence and fraud, respectively- are subject to an "absolute" limitations
period of"one year" after the entry of the relevant order. Warren v. Garvin, 219 F.3d 111, 114
(2d Cir. 2000) (internal quotation marks and citations omitted); Fed. R. Civ. P. 60(b)-(c).
Because the March 24 Motion targets a Memorandum and Order that issued in September 2015,
more than eighteen months before the Motion was filed, it must be denied.
The Court does recognize that the March 24 Motion references Rule 60(b)(6) in addition
to Rules 60(b)(2) and (3). Applications under Rule 60(b)(6)- which covers "any other reason
that justifies relief' - generally must only "be made within a reasonable time" and not
necessarily within a strict one-year period following entry of the relevant order. Fed. R. Civ. P.
60(b)-( c). But "Rule 60(b)(6) only applies if the reasons offered for relief from judgment are not
covered under the more specific provisions of Rule 60(b)(l)-(5),'' and it "may not be used to
circumvent the 1-year limitations period that governs" Rules 60(b)(l)-(3). Warren, 219 F.3d at
114 (internal citations omitted). Because Plaintiff articulates no discernible basis for the
requested vacatur of the September 17, 2015 Memorandum & Order independent of fraud and perhaps - purported new evidence, the more flexible limitations provision applicable to Rule
60(b)(6) motions does not apply here. Cf Stevens v. Miller, 676 F.3d 62, 67-68 (2d Cir. 2012)
(noting that the prospect that "parties may attempt to use Rule 60(b)(6) to circumvent the oneyear time limitation in other subsections of Rule 60(b)" is of "particular concern" and, for that
reason, "Rule 60(b)(l) and Rule 60(b)(6) are mutually exclusive, such that any conduct which
generally falls under the former cannot stand as a ground for relief under the latter") (internal
quotation marks and citations omitted).
Finally, Plaintiffs attempt to invoke Rule 60(d)(3) is unavailing. Like Rule 60(b)(6),
Rule 60(d)(3), which recognizes a court's power to "set aside a judgment for fraud on the court"

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(as opposed to fraud on an adverse party), does "not have a specific limitations period."
Anderson v. City ofNew York, 07-cv-9599, 2012 WL 4513410, at *5 (S.D.N.Y. Oct. 2, 2015).

Still, courts in this District have cautioned that a "plaintiff cannot use Rule 60(d)(3) to avoid the
one year limitation period applicable to Rule 60(b)(3) motions." Id. Even if Plaintiffs apparent
Rule 60(d)(3) application were timely, moreover, the application would fail because it does not
come close to satisfying the "stringent and narrow" substantive requirements for relief under that
Rule. Id. at *4. "Fraud upon the court ... is limited to fraud which seriously affects the integrity
of the normal process of adjudication." King v. First American Investigations, Inc., 287 F.3d 91,
95 (2d Cir. 2002) (internal quotation marks, brackets, and citations omitted). It "should embrace
only that species of fraud which does or attempts to, defile the court itself, or is a fraud
perpetrated by the officers of the court so that the judicial machinery cannot perform in the usual
manner its impartial task of adjudging cases," and it "must be established by clear and
convincing evidence." Id. (internal quotation marks and citations omitted). As best as the Court
can determine, Plaintiff predominantly alleges in support of his fraud-on-the-court claim that
Defendants adopted legal positions in their motion to dismiss papers - for example, that
Plaintiffs Second Amended Complaint failed to state claims on which relief could be granted that lacked legal support or were at odds with documentary evidence incorporated by reference
into Plaintiffs pleading. See, e.g., March 24 Motion at 9-21. At bottom, however, those
allegations do "no more than complain that the defendants disputed [Plaintiffs] version of the
law and facts," - a "type of dispute" that is "exactly what is expected in the normal adversary
process." King, 287 F.3d at 95-96. Accordingly, they are "insufficient to state a claim for fraud
on the court." Id. 2

2

The March 24 Motion also appears to seek, if only in passing, leave to join Defendants' attorneys and
their law firms as additional Defendants in this matter. March 24 Motion at 2 & n.2. The application is premised
solely on defense counsel's role in purportedly defrauding the Court in connection with moving to dismiss the
Second Amended Complaint in 2015. Because the Court concludes that Plaintiff falls well short of successfully
invoking the fraud-on-the-court doctrine, any such joinder would be futile. Moreover, Plaintiff fails to provide any
cogent explanation for waiting more than a year and a half - through the substantial close of discovery and to the
brink of potential summary judgment motion practice - to seek to join these additional parties. Accordingly,

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For the foregoing reasons, Plaintiffs April 4 Motion for review and vacatur of the
Magistrate Judge's March 28 Order is DENIED.
This resolves Dkt. No. 304.

SO ORDERED.
Dated: June
( '
'2017
New York, New York

United States District Judge

USDCSDNY
DCCUl\1ENT
ELECTRONICALLY FILED
DOC#: _ _ _-:":"":"::-;--:--;::-:~
DATE FILED: JUN 1 9 2017

Plaintiffs joinder application is DENIED. See, e.g., Agerbrink v. Model Service LLC, 155 F. Supp. 3d 448, 452
(S.D.N.Y. 2016) (motion for joinder may be denied for "undue delay, bad faith, prejudice, or futility").

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