Castillo Marcelino et al v. 374 Food Inc. et al

Filing 128

ORDER: Therefore, the Court ORDERS that Plaintiff's award of judgment is hereby forfeited. Additionally, the Court finds that Defendants and their counsel have incurred costs as a result of Plaintiff's failure to prosecute this case and respond to the Court's orders, and that they are entitled to reimbursement for those costs from Plaintiff. The Court therefore invites Defendants and their counsel, if they wish, to petition the Court for a reimbursement of costs by Januar y 11, 2020. Finally, Plaintiff's former counsel is ORDERED to transmit this message to Plaintiff through whatever means they were last able to contact him. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal by Plaintiff from this Order would not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Katherine Polk Failla on 12/11/2019) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOMINGO CASTILLO MARCELINO,
Plaintiff,
16 Civ. 6287 (KPF)

-v.374 FOOD INC., TIRAN TSADOK, and
HAYIM TSADOK,

ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
On March 27, 2018, the Court issued an Opinion in this action finding
that Plaintiff, although entitled to damages, had committed perjury in the
course of his prosecution of this case. (Dkt. #59). The Court invited the
parties to brief whether sanctions were warranted against Plaintiff, under
either Federal Rule of Civil Procedure 11 or the Court’s inherent powers (id.),
and on September 18, 2019, the Court issued an Order to Show Cause why the
Court should not order the forfeiture of Plaintiff’s judgment or impose other
sanctions in response to Plaintiff’s conduct (Dkt. #123). Despite numerous
efforts to contact Plaintiff (see Dkt. #123, 124, 126), Plaintiff made no effort to
respond to the Court’s two orders.
On December 9, 2019, the Court held the promised show-cause hearing
and Plaintiff did not appear. (Minute Entry of 12/09/2019). At the hearing,
Defendant requested that the Court formally set aside the judgment pursuant
to Rule 60(b). Rule 60(b)(3) provides, in relevant part, that a court may provide
a party with relief from a final judgment or order for reasons of “fraud …,

misrepresentation, or misconduct by an opposing party.” Fed R. Civ.
P. 60(b)(3). However, Rule 60(c)(1) expressly provides that a motion for such
relief must be brought “no more than a year after the entry of the judgment or
order.” Fed. R. Civ. P. 60(c)(1). This time limitation is absolute. See Warren v.
Garvin, 219 F.3d 111, 114 (2d Cir. 2000). Moreover, the Court cannot rely on
Rule 60(b)(6)’s broader ground for relief because that subsection of the rule
cannot be used “to circumvent the one-year limitations period that applies to
the specific clauses.” See LinkCo, Inc. v. Akikusa, 615 F. Supp. 3d 130, 136
(S.D.N.Y. 2009), aff’d, 367 F. App’x 180 (2d Cir. 2010) (summary order).
However, the Court recognizes that it is within the Court’s inherent
power to order the forfeiture of Plaintiff’s award in response to his perjury. See
ABF Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317, 329 (1994) (Scalia, J.,
concurring) (“The principle that a perjurer should not be rewarded with a
judgment — even a judgment otherwise deserved — where there is discretion to
deny it, has a long and sensible tradition in the common law.”); cf. Radecki v.
GlaxoSmithKline, 646 F. Supp. 2d 310, 318 (D. Conn. 2009) (dismissing case
with prejudice in response to plaintiff’s perjury during trial), aff’d, 375 F. App’x
46 (2d Cir. 2010) (summary order). Given Plaintiff’s extensive perjury, as
detailed in the Court’s prior Opinion (Dkt. #59), the Court finds that such a
sanction, while severe, is warranted.
Therefore, the Court ORDERS that Plaintiff’s award of judgment is
hereby forfeited.

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Additionally, the Court finds that Defendants and their counsel have
incurred costs as a result of Plaintiff’s failure to prosecute this case and
respond to the Court’s orders, and that they are entitled to reimbursement for
those costs from Plaintiff. The Court therefore invites Defendants and their
counsel, if they wish, to petition the Court for a reimbursement of costs by
January 11, 2020.
Finally, Plaintiff’s former counsel is ORDERED to transmit this message
to Plaintiff through whatever means they were last able to contact him.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal by
Plaintiff from this Order would not be taken in good faith and therefore IFP
status is denied for the purpose of an appeal. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: December 11, 2019
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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