TD Ameritrade, Inc. v. Kelley

Filing 77

OPINION & ORDER re: 70 MOTION to Intervene.. Because Harris' Motion is untimely and her intervention would unduly prejudice TDA, and because granting Harris non-party standing to bring Rule 60(b) motions is unwarranted, Harris' Motion is DENIED. Because the Court finds no valid reason to vacate the Judgment on its own motion, the Judgment will stand undisturbed. The Clerk of Court is directed to close the motion at ECF number 70. SO ORDERED. (Signed by Judge Paul A. Crotty on 3/10/2021) (ks)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------x
TD AMERITRADE, INC.,
:
:
Petitioner,
:
:
- against :
:
EDWARD W. KELLEY,
:
:
Respondent.
:
----------------------------------------------------------x

15 Civ. 714 (PAC) (BCM)
OPINION & ORDER

Jan Harris, pro se, seeks permission to intervene in this action (the “Kelley Action”)
pursuant to Fed. R. Civ. P. (“Rule”) 24(b)(1)(B) and obtain relief from the judgment under Rules
60(b)(4) and (5). Mot. to Intervene & Obtain Relief, ECF No. 70 (the “Motion”). The Court
rendered a final judgment in the Kelley Action more than four years ago (over three and one-half
years before Harris filed her Motion). Order Adopting R. & R., ECF No. 68; Clerk’s Judgment,
ECF No. 69 (collectively, the “Judgment”). Because her Motion is untimely and would unduly
prejudice TD Ameritrade, Inc. (“TDA”), the Court denies Harris’ request to intervene. Because
Harris does not raise extraordinary circumstances that would warrant allowing her to bring Rule
60(b) motions as a non-party, the Court will not consider her motions under Rules 60(b)(4) and
(5). And the Court declines, on its own motion, to vacate the Judgment. In sum, Harris’ Motion,
in its entirety, is DENIED.
BACKGROUND
I.

Relevant Entities
TDA is a brokerage services provider. Order Adopting R. & R. 2. Harris and Edward

Kelley are TDA’s customers; they both own shares of Bancorp International Group, Inc.

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(“Bancorp”), “which [TDA] purports to be holding on behalf of its customers . . . in its account
at the Depository Trust Company.” Notice of Mot. to Intervene & Obtain Relief 1, ECF No. 70.
II.

Relevant Facts
The Kelley Action began on January 30, 2015, when TDA filed with this Court a petition

for an order vacating Kelley’s arbitration award (the “Award”) dated December 22, 2014. Pet. to
Vacate Arb., ECF No. 1. In pertinent part, the Award required TDA “to deliver to Kelley a
physical share certificate for 152,380 [Bancorp] shares.” Order Adopting R. & R. 1. Kelley
cross-petitioned for an order confirming the Award. Obj., ECF No. 5. The Court found that
TDA’s compliance with the Award’s mandate would be either illegal or impossible and vacated
the Award. Order Adopting R. & R. 1–2, 6. The Court also held, however, that TDA “must
continue to make good-faith efforts to provide Kelley with a physical share certificate for
152,380 Bancorp shares, if and when it becomes legal and possible to do so.” Id. at 6.
In 2017, Harris sued TDA (and others) alleging that TDA is obligated to provide her with
a physical share certificate for her 2,420,000 Bancorp shares. Harris v. TD Ameritrade, Inc., 338
F. Supp. 3d 170, 175–76 (S.D.N.Y. 2018) (the “Harris Action”). Judge Swain compelled
arbitration and stayed the Harris Action pending the arbitration’s results. Id. at 175.
On May 18, 2020, Harris filed her Motion, seeking permission to intervene in this action
and have this Court vacate its Judgment. TDA opposed her Motion (Resp. in Opp’n, ECF No.
71) and filed a declaration in opposition (Decl. in Opp’n, ECF No. 72) on June 1. Harris replied
on June 3. Reply Aff. in Supp., ECF No. 74. On June 12, TDA wrote the Court to inform it of
Judge Swain’s order denying Harris’ motions to amend her complaint and obtain a declaratory
judgment along with immediate possession of her Bancorp shares, and dismissing her complaint
in the Harris Action. Letter, ECF No. 75; see Harris v. TD Ameritrade, Inc., No. 17 CV 6033-

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LTS-BCM, 2020 WL 3073235, at *2 (S.D.N.Y. June 10, 2020). Harris appealed that judgment,
and the Second Circuit affirmed on March 1, 2021. Harris v. TD Ameritrade, Inc., — F. App’x
—, No. 20-1960, 2021 WL 772269, at *1–2 (2d Cir. Mar. 1, 2021).
In her Motion, Harris argues that (1) TDA and Kelley’s agreement to arbitrate his claim
for physical possession of his Bancorp shares certificate was unenforceable, rendering the Award
“a legal nullity” (Motion 10); (2) because the Award was a legal nullity, neither Kelley nor TDA
had a cause of action to petition this Court to confirm or vacate the Award; 1 and (3) the
Judgment unlawfully allows TDA to skirt its obligation under 17 C.F.R. § 240.15c3-3 (“SEC
Rule 15c3-3”) to provide Kelley, Harris, and other customers with physical certificates of their
fully-paid Bancorp shares upon request. Motion 7–14. Thus, argues Harris, the Judgment is
void ab initio and the Court should set it aside, both because it is void and because it is no longer
equitable. Motion 14, 16. Harris accuses the Court of “rewrit[ing] federal law” (Motion 15; see
also Reply Aff. in Supp. 7) and “usurp[ing] the power of the legislative branch” through “giving
vitality to an arbitration award where the underlying agreement to arbitrate had been declared
void by Congress.” (Reply Aff. in Supp. 6–7)
TDA’s opposition addresses only Harris’ motion to intervene but asks the Court to enter
“a briefing schedule with respect to Harris’[] proposed motion to vacate the Judgment pursuant
to [Rule] 60(b)” should the Court allow her to intervene. Resp. in Opp’n 6.

1

Harris claims, in various places, that the Judgment was void because the Kelley Action lacked a
case or controversy (Reply Aff. in Supp. 5–6); because TDA lacked standing to file its petition
(Reply Aff. in Supp. 1, 6); and because TDA and Kelley both lacked a cause of action to file
petitions in this Court (Motion 14). These claims boil down to an argument that the Court lacked
subject matter jurisdiction over TDA’s petition and thus could not vacate the Award.
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DISCUSSION
I.

Applicable Law
a. Subject Matter Jurisdiction
The United States Constitution empowers federal courts to hear only “cases” and

“controversies.” U.S. Const. art. III, § 2, cl. 1. Thus, a federal court lacks subject matter
jurisdiction over claims that do not present a case or controversy. “A live controversy, within the
Article III jurisdiction of the federal courts, requires a plaintiff seeking relief and a defendant
opposing that relief.” Amalgamated Clothing & Textile Workers Union v. J.P. Stevens & Co.,
Inc., 638 F.2d 7, 8 (2d Cir. 1980). A federal court “may not adjudicate a case or controversy
unless authorized by both Article III of the United States Constitution and a federal jurisdictional
statute.” United States v. Assa Co. Ltd., 934 F.3d 185, 188 (2d Cir. 2019).
Standing is part of the case-or-controversy requirement. Cent. States Se. & Sw. Areas
Health & Welfare Fund v. Merck-MEDCO Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir.
2005). Accordingly, a federal court lacks subject matter jurisdiction over a claim if the party
asserting that claim does not have standing to bring it. Id. “A party may challenge subject
matter jurisdiction at any time.” Assa, 934 F.3d at 188.
To have Article III standing, a claimant must show (1) she suffered an actual or
imminent, concrete and particularized “injury in fact”; (2) which is causally connected to the
defendant’s actions; and (3) which a favorable decision will likely redress. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992); accord Merck-MEDCO, 433 F.3d at 198.
The Federal Arbitration Act (“FAA”) is a law of the United States which allows district
courts to vacate arbitration awards in certain circumstances—for example, “where the arbitrators
exceeded their powers.” 9 U.S.C. § 10(a)(4). But “[t]he FAA does not ‘independently confer

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subject matter jurisdiction on the federal courts.’” Scandinavian Reinsurance Co. Ltd. v. Saint
Paul Fire & Marine Ins. Co., 688 F.3d 60, 71 (2d Cir. 2012) (citation omitted). Thus, a
petitioner attempting to vacate an arbitration award in federal court under § 10 must prove an
independent basis of federal subject matter jurisdiction, such as federal question jurisdiction
under 28 U.S.C. § 1331 or diversity jurisdiction under 28 U.S.C. § 1332.
A court has federal question jurisdiction over a § 10 petition where “the petitioner
complains principally and in good faith that the award was rendered in manifest disregard of
federal law.” Doscher v. Sea Port Grp. Sec., LLC, 832 F.3d 372, 375 (2d Cir. 2016) (quoting
Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 27 (2d Cir. 2000)). The court is also permitted
to look beyond the petition itself; if the court would have had federal question jurisdiction over
the underlying dispute, then the court has federal question jurisdiction over a § 10 petition to
vacate the award entered on that dispute. Doscher v. Sea Port Grp. Sec., LLC, 832 F.3d 372,
388–89 (2d Cir. 2016). Federal question jurisdiction, here as everywhere else, “cannot be
predicated on an actual or anticipated defense.” Vaden v. Discover Bank, 556 U.S. 49, 60
(2009); see also Doscher, 832 F.3d at 389 (“[F]ederal courts may ‘look through’ § 10 petitions,
applying the ordinary principles of federal-question jurisdiction to the underlying dispute as
defined by Vaden.”).
The court determines whether federal diversity jurisdiction exists “by examining the
citizenship of the parties at the time the action is commenced.” Odeon Capital Grp. LLC v.
Ackerman, 149 F. Supp. 3d 480, 483 (S.D.N.Y. 2016) (citation omitted). The court has diversity
jurisdiction exists if the action is between citizens of different states and the amount in
controversy exceeds $75,000. 28 U.S.C. § 1332(a)–(a)(1). A corporation is deemed a citizen of

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every state in which it is incorporated and the one state in which it has its principal place of
business. § 1332(c)(1).
b. Standards for Ruling on Harris’ Motion
Courts extend pro se litigants special solicitude, Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir.
1994), and must interpret their submissions “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted). In
ruling on a motion to intervene, “the court must accept as true non-conclusory allegations of the
motion,” but need not consider allegations that are facially frivolous. Dorsett v. Cty. of Nassau,
283 F.R.D. 85, 90 (E.D.N.Y. 2012).
c. Permissive Intervention
A court may, on timely motion, “permit anyone to intervene who has a claim or defense
that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).
The district court has broad discretion in deciding whether to grant permissive intervention,
AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561 (2d Cir. 2005), “[h]owever, except for
allegations frivolous on their face, an application to intervene cannot be resolved by reference to
the ultimate merits of the claims which the intervenor wishes to assert . . . .” Oneida Indian
Nation of Wis. v. New York, 732 F.2d 261, 265 (2d Cir. 1984).
Whether ruling on a motion to intervene as of right or by permission, courts “typically
consider the same four factors,” In re Direxion Shares ETF Tr., 279 F.R.D. 221, 234 (S.D.N.Y.
2012), namely, whether:
(1) the application is timely; (2) [the putative intervenor] claims “an interest relating
to the property or transaction which is the subject matter of the action;” (3) [the
putative intervenor] is situated such that “disposition of the action may, as a

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practical matter, impair or impede [her] ability to protect [her] interests;” and (4)
[her] interest is “not adequately protected by an existing party.”
Id. (quoting MasterCard Int’l Inc. v. Visa Int’l Serv. Ass’n, Inc., 471 F.3d 377, 389 (2d Cir.
2006)).
Determining the timeliness of a motion to intervene is likewise within the district court’s
discretion. Id. When deciding whether a motion to intervene is timely, courts will consider:
(a) the length of time the applicant knew or should have known of its interest before
making the motion; (b) prejudice to the existing parties resulting from the
applicant's delay; (c) prejudice to the applicant if the motion is denied; and (d) the
presence of unusual circumstances militating for or against a finding of timeliness.
Id. (quoting MasterCard Int’l Inc., 471 F.3d at 390).
While timeliness is a threshold question under Rule 24(b), “[t]he principal guide in
deciding whether to grant permissive intervention is ‘whether the intervention will unduly delay
or prejudice the adjudication of the rights of the original parties.’” United States v. Pitney
Bowes, Inc., 25 F.3d 66, 73–74 (2d Cir. 1994) (quoting Fed. R. Civ. P. 24(b)(2)). “Postjudgment intervention is generally disfavored because it usually creates delay and prejudice to
the existing parties.” Dow Jones & Co., Inc. v. DOJ, 161 F.R.D. 247, 251 (S.D.N.Y. 1995)
(citing United States v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986)).
d. Non-Party Motions under Rule 60(b)
Rule 60(b) permits a court, upon a motion from “a party or its legal representative,” to
grant relief from a final judgment. Fed. R. Civ. P. 60(b). Thus, at first glance, it appears that a
third party denied permission to intervene may not bring a Rule 60(b) motion, because the third
party is neither a party nor its legal representative. But the Second Circuit has recognized that, in

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limited circumstances, non-parties have a right to bring Rule 60(b) motions. Irvin v. Harris, 944
F.3d 63, 69 (2d Cir. 2019).
Irvin dealt with a Rule 60(b) movant who was not a party, but a member of an inmate
class bound by a judgment that terminated a consent decree. Id. at 66, 67, 70. The court noted
that the controlling cases on the issue of non-party Rule 60(b) motions were fact-specific and
involved “extraordinary circumstances in which a non-party had interests on which the outcome
of the proceedings had significant consequences . . . yet those interests had not been adequately
represented during litigation, because of the peculiar structure of [the] case.” Id. at 70 (quoting
Federman v. Artzt, 339 F. App’x 31, 34 (2d Cir. 2009)) (alterations in original). Concluding that
Irvin had met this high standard, the court held that:
where Irvin was not notified of counsel’s decision to withdraw opposition until after
the termination order was entered and no named representatives of an inmate class
remained incarcerated at the facility in question when a longstanding consent
decree was terminated, Irvin, a member of the class, has “standing” 2 to invoke Rule
60(b) to challenge the judgment.
Id.
e. The Court’s Power to Vacate Void Judgments Sua Sponte
While Rule 60(b) contemplates that parties will bring motions under it, “nothing forbids
the court to grant such relief sua sponte.” Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 111
(2d Cir. 2001); accord United States v. $57,162 in U.S. Currency, No. 19-cv-7323 (AJN), 2019

2

The court explained: “the Supreme Court has made clear that ‘what has been called “statutory
standing” in fact is not a standing issue, but simply a question of whether the particular plaintiff
“has a cause of action under the statute.”’” 944 F.3d at 68 n.4 (citations omitted). But for ease
of reference, the court “refer[red] to Irvin’s right to relief under [Rule 60(b)] as his ‘standing.’”
Id.
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WL 5802290, at *2 (S.D.N.Y. Sept. 29, 2020). Thus, a court may vacate a void judgment on its
own motion, even when no one has filed a Rule 60(b)(4) motion. McLearn v. Cowen & Co., 660
F.2d 845, 848–49 (2d Cir. 1981). But “[a] judgment is void under Rule 60(b)(4) . . . ‘only if the
court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a
manner inconsistent with due process of law.’” Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d
180, 193 (2d Cir. 2006) (quoting Texlon Corp. v. Mfrs. Hanover Commercial Corp., 596 F.2d
1092, 1099 (2d Cir. 1979)); accord United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,
271 (2010) (“Rule 60(b)(4) applies only in the rare instance where a judgment is premised either
on a certain type of jurisdictional error or on a violation of due process that deprives a party of
notice or the opportunity to be heard.”).
II.

Application
a. Permissive Intervention is Inappropriate
Harris’ Motion is untimely and threatens undue prejudice to TDA’s right to rely on a

lawful, final judgment entered over four years ago.
As TDA points out, Harris knew about the Judgment no later than December 28, 2017,
when she cited the Judgment in a memorandum of law in the Harris Action. Resp. in Opp’n 2–3.
She waited approximately 29 months from then before moving to intervene in this action.
Permitting Harris to intervene would significantly prejudice TDA, because it would have to
expend resources fighting Harris’ Rule 60(b) motions. By contrast, denying Harris’ Motion
would not impose any cognizable prejudice upon her. Harris seeks to intervene so that she can
move to vacate the Judgment, preventing TDA from citing the Judgment as favorable case law in
other lawsuits. The Court is unaware of a single case in which a court has allowed a person to
intervene for the purpose of getting rid of unfavorable case law; denying Harris’ motion thus

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does not work any real prejudice against her. 3 Nor has Harris raised any extraordinary
circumstances which might persuade the Court to determine that her Motion was timely.
Accordingly, the Court finds that Harris’ Motion is untimely, and she has thus failed to satisfy
Rule 24(b)(1)(B)’s threshold requirement.
Further, Harris claims no interest in the property at issue in the Judgment, and she is not
situated such that the Judgment impaired or impeded her rights: nothing in the Judgment binds
Harris or limits her right to litigate against TDA in the Harris Action. Finally, Kelley litigated
zealously, and if Harris’ interests were not adequately represented in the Kelley Action, it was
because no one was required to represent her interests (or purported to do so).
For these reasons, Harris’ motion to intervene is DENIED.
b. Non-Party Rule 60(b) Motions Are Unwarranted
The facts surrounding Harris’ Motion are markedly different from those in Irvin and
other cases in which courts allowed non-parties to bring Rule 60(b) motions. 4 Unlike Irvin,
Harris had nothing to do with the Kelley Action when the parties were litigating it, and now has
no good reason to reopen it over four years after the Court entered its Judgment. As already
discussed, Harris is not affected by the Judgment, except incidentally to the extent that it
supports TDA’s position that delivering physical certificates of Bancorp shares is impossible or
illegal and thereby weakens her argument to the contrary. Thus, Harris’ Motion does not present

3

Harris even cited the Judgment in the Harris Action in support of her position that her claim to
physical certificates of Bancorp shares is non-arbitrable—an argument which Magistrate Judge
Moses and Judge Swain roundly rejected. Harris, 338 F. Supp. 3d at 185–86.
4

See Grace, 443 F.3d at 183–89 (permitting third-party conveyees to bring Rule 60(b) motion to
obtain relief from unsatisfied judgment with serious due process concerns which plaintiffs
attempted to use as basis for fraudulent conveyance actions against them); Dunlop v. Pan Am.
World Airways, Inc., 672 F.2d 1044, 1047–52 (2d Cir. 1982) (permitting employees to bring
Rule 60(b)(6) motion to modify a settlement between the Secretary of Labor and their employer
over alleged discrimination).
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the kind of extraordinary circumstances that warrant allowing her to bring Rule 60(b) motions as
a non-party, and her alternative request to do so is, therefore, DENIED.
c. The Judgment is Not Void
Harris asserts two grounds upon which she claims the Judgment is void. First, Harris
argues that the Court lacked subject matter jurisdiction over TDA’s petition to vacate the Award.
Second, Harris argues that the Judgment violates federal law by “rewriting” SEC Rule 15c3-3,
thereby allowing TDA to avoid its obligations under SEC Rule 15c3-3. Harris is mistaken on
both counts.
First, the Court had subject matter jurisdiction over the Kelley Action. TDA’s petition to
vacate the Award presented a live controversy, because TDA sought relief which Kelley
opposed. Further, TDA had Article III standing to bring the petition, because (1) it had an injury
(compliance with the Award was a legal obligation, but would require TDA to break the law or
do the impossible); which was (2) traceable to Kelley (Kelley was the one who obtained the
Award and had the power to seek court enforcement of it); and (3) redressable by this Court (the
Judgment relieved TDA of its obligation to comply with the Award, thereby redressing the
injury).
True, the arbitrated dispute were Kelley’s claims for “willful interference with a property
interest and fraud[],” torts which did not give rise to federal question jurisdiction. See Pet. to
Vacate Ex. A. And while TDA’s § 10 petition does allege that the arbitrator rendered the Award
in manifest disregard of the law, the petition could be viewed as essentially pleading a federal
defense proactively, which is insufficient to confer federal question jurisdiction. See Pet. to
Vacate ¶ 2 (“This Court has jurisdiction pursuant to 28 U.S.C. § 1331[] in that the Award of the
arbitrator would, if confirmed and implemented, cause a violation of [federal securities laws and

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regulations]”); Vaden, 556 U.S. at 70. The Court need not decide whether TDA’s § 10 petition
presented federal question jurisdiction, however, because the Court had diversity of citizenship
jurisdiction. TDA is a citizen of New York and Nebraska, Kelley is a citizen of South Carolina,
and the amount in controversy exceeded $75,000. See Pet. to Vacate, ECF No. 1 ¶¶ 4, 6, 7; see
also id. at ¶ 16 (alleging that TDA’s expected damage from the Award was “as much as
$190,000”); Respondent’s Objection 3, ECF No. 5. Thus, because there was complete diversity
between the parties and the amount in controversy requirement was satisfied, the Court had
diversity jurisdiction to entertain TDA’s § 10 petition, as well as Kelley’s cross-petition to
confirm the award, and thus had subject matter jurisdiction to render the Judgment vacating the
Award.
And Kelley’s claims against TDA were arbitrable. Judge Swain twice rejected Harris’
argument that arbitration is not available for claims which seek to compel TDA to give
customers physical certificates of their Bancorp shares—arguments which Harris recycles here.
See Harris, 338 F. Supp. 3d at 174; Harris, 2020 WL 3073235, at *3, aff’d, 2021 WL 772269
(2d Cir. Mar. 1, 2021). In the Harris Action, Harris argued that her agreement to arbitrate with
TDA was void ab initio because it allows TDA to avoid its obligations under the Exchange Act
of 1934 or the rules and regulations thereunder. No. 17-cv-6033, Mot. to Suppl. Compl. 4, ECF
No. 86. Harris also argued that SEC Rule 15c3-3 gives her an equitable cause of action in
federal court. 5 Id. at 6–9. Harris raises those same arguments here, in her Motion. Judge Swain
impliedly rejected the former argument (No. 17-cv-6033, Order on Mot. for Misc. Relief, ECF
No. 92) and expressly rejected the latter (Harris, 2020 WL 3073235, at *3). In affirming Judge

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In her Motion, Harris acknowledges that SEC Rule 15c3-3 does not create a private cause of
action. Motion 7 n.10.
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Swain’s dismissal of the Harris Action, the Second Circuit wrote that “authorities have uniformly
held that SEC Rule 15c3-3, upon which Harris purported to rely, does not create a private right
of action. . . . Although this Court has not ruled on that question (and we decline to do so now),
the district court did not abuse its discretion in denying leave to add such a claim.” Harris, 2021
WL 772269, at *2 (citations omitted). This Court likewise finds Harris’ arguments to be without
merit. Kelley’s claims against TDA were arbitrable, and the Court had subject matter
jurisdiction over the Kelley Action.
Second, the Judgment does not rewrite federal law. Instead, it upholds the well-founded
rule, “derived from the common law doctrine of refusing to enforce a contract that violates law,”
Pro’s Choice Beauty Care, Inc. v. Local 2013, United Food & Commercial Workers, No. 16-cv2318 (ADS) (ARL), 2017 WL 933089, at *2 (E.D.N.Y. Mar. 7, 2017) (citation omitted), which
allows courts to vacate arbitration awards that require a party to violate the law. Id.; see also
Perma-Line Corp. of Am. v. Sign Pictorial & Display Union, Local 230, Int’l Bhd. of Painters &
Allied Trades, AFL-CIO, 639 F.2d 890, 895 (2d Cir. 1981); Dorscher, 832 F.3d at 375 n.3
(explaining that after Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 578 (2008) held that §
10 supplies the exclusive grounds for vacating an arbitration award, the Second Circuit “held that
‘manifest disregard of the law’ is a ‘judicial gloss’ on § 10 that permits vacatur.’”) (citation
omitted).
Accordingly, the Judgment is not void. Finding Harris’ remaining arguments
unpersuasive, the Court also declines to set the Judgment aside under Rule 60(b)(5) sua sponte
on the ground that it is no longer prospectively equitable.

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CONCLUSION
Because Harris’ Motion is untimely and her intervention would unduly prejudice TDA,
and because granting Harris non-party standing to bring Rule 60(b) motions is unwarranted,
Harris’ Motion is DENIED. Because the Court finds no valid reason to vacate the Judgment on
its own motion, the Judgment will stand undisturbed. The Clerk of Court is directed to close the
motion at ECF number 70.

Dated: New York, New York
March 10, 2021

SO ORDERED

_________________________
HONORABLE PAUL A. CROTTY
United States District Judge

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