Mills v. Genesee County et al
-CLERK TO FOLLOW UP-DECISION AND ORDER denying with prejudice 184 Plaintiff's Motion to Vacate ; denying with prejudice 188 Plaintiff's Motion for Sanctions; denying with prejudice 200 Plaintiff's Motion for Subpoenas. The Co urt certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for purpose of an appeal. Signed by Hon. Michael A. Telesca on 10/14/16. The Clerk of the Court is requested to mail a copy of this Decision and Order to the pro se plaintiff. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsGENESEE COUNTY, MONROE COUNTY, KATHLEEN
McCULLY, MOSES S. SCHANFIELD, LAWRENCE
FRIEDMAN, DAVID GANN, ROBERT C. NOONAN,
JOHN CLARK, H. VAN HORN, JANE/JOHN DOE
RS., GENESEE COUNTY LEGISLATURE,
JANE/JOHN DOE #1, JANE/JOHN DOE #2,
JANE/JOHN DOE #3, KATHLEEN GRAY,
JANE/JOHN DOE KIEWALL, JUDY MILLS,
On January 21, 2010, the Court (McCarthy, M.J.) placed on the
record the terms of settlement of three civil actions involving
Richard Mills (“Plaintiff”). Proceeding pro se, Plaintiff then
commenced this action on May 5, 2011, alleging, inter alia, that
the Genesee County defendants breached the terms of the settlement
agreement because they allegedly informed his former wife, Judy
Mills, that he “received a sum of money, who the parties were, the
particulars of a contract/settlement, and . . . [his] private
received from Plaintiff indicating that “he did get a settlement
but it is confidential and [he] [is] not to talk about it for any
reason.” Plaintiff, however, repeatedly denied that he authored or
sent the letter which Judy Mills attributed to him, and accused the
Genesee County defendants of fabricating the letter.
On December 14, 2012, the Genesee County defendants moved,
pursuant to Rule 11 of the Federal Rules of Civil Procedure (“Rule
11”) for dismissal of the action and for other sanctions, on the
grounds that Plaintiff instituted frivolous claims for improper
purposes, made intentional misrepresentations to the Court, and
engaged in bad faith conduct during the prosecution of his claims.
After an evidentiary hearing at which five witnesses, including
Plaintiff, testified, the Court (McCarthy, M.J.) found, by clear
question and repeatedly denied, under oath, authorship of the
letter. As a sanction, Magistrate Judge McCarthy recommended, inter
alia, that Plaintiff’s Complaint be dismissed in its entirety
pursuant to Rule 11(c) and the Court’s inherent authority. The
Court (Arcara, D.J.), upon de novo review of the Report and
Recommendation, adopted Magistrate Judge McCarthy’s findings in
full. Plaintiff’s Complaint was dismissed in its entirety and on
the merits pursuant to Rule 11(c).
In pro se papers dated July 20, 2016, Plaintiff moved to
vacate (Dkt #184) the January 8, 2014 Decision and Order dismissing
his Complaint pursuant to Federal Rule of Civil Procedure 60(b)
also moved for Rule 11 sanctions (Dkt
#188). The attorneys for the various defendants file Declarations
and Memoranda of Law in opposition (Dkt ##189, 190, 193, 197).
Plaintiff filed multiple replies (Dkt ##192, 196, 198, 199).
Plaintiff then filed a Motion for Issuance of Subpoenas (Dkt #200).
For the reasons discussed below, all three motions are denied.
MOTION TO VACATE
Pursuant to Rule 60(b), “[o]n motion and just terms, a court
may relieve a party or its legal representative from a final
judgment, order, or proceeding” for any of the following reasons:
(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 previously called intrinsic
extrinsic), misrepresentation, or misconduct by
(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). Petitioner specifies subsections (1) through
(6) of Rule 60(b) as the grounds for his motion.
The gravamen of Plaintiff’s Motion to Vacate is that retired
allegedly lied in a Decision and Order dated June 2, 2005, in
Plaintiff, the lie concerned the degree of kinship between Judge
Noonan and Assistant District Attorneys Robert and William Zickl
prosecuting Plaintiff’s criminal case. In the Decision and Order at
issue, Judge Noonan stated that the Zickl Brothers were his first
cousins, once removed. As proof of Judge Noonan’s alleged lie,
Plaintiff has submitted a newspaper article June 28, 2016, stating
that Judge Noonan’s father was the father-in-law of the Zickl
Brothers’ father. Thus, based on the article, Plaintiff asserts,
the Zickl Brothers are actually Judge Noonan’s nephews, and not his
establishes an ethical violation by Judge Noonan, whom he claims
should have recused himself based on his familial relationship with
the Zickl Brothers.
Plaintiff cannot avail himself of subsections (1), (2), or (3)
of Rule 60(b) because his Motion to Vacate was not made within one
year after the Judgment. See FED. R. CIV. P. 60(c) (1) (“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.”).
Rule 60(b)(4) which, applies when the judgment is void, cannot
be invoked here. A judgment is void “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., 443 F.3d 180, 194 (2d Cir.
2006). The newspaper article discussing the familial relationship
between Judge Noonan and the Zickl Brothers does not have the
effect of voiding this Court’s Judgment.
Plaintiff cannot rely on Rule 60(b)(5), which allows vacatur
if 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). The Court’s
satisfied, released or discharged. Likewise, it was not based on an
earlier judgment that has been reversed or vacated. Finally, it did
not leave open future adjudication of any issues regarding the
rights of the parties. See Tapper v. Hearn, No. 15-2249-CV,
F.3d ___, 2016 WL 4204794, at *4 (2d Cir. Aug. 10, 2016) (“The fact
that the district court's prior dismissal was not executory and did
not leave open future adjudication of any issues regarding the
rights of the parties now at issue here and before the district
court is fatal to Petitioners’ claim under [Rule 60(b)(5)].”).
Rule 60(b)(6) provides that a court may relieve a party from
a final judgment for “any other reason that justifies relief.” FED.
R. CIV. P. 60(b)(6). Significantly, “Rule 60(b)(6) applies only
‘when the asserted grounds for relief are not recognized in clauses
(1)-(5) of the Rule’ and ‘there are extraordinary circumstances
justifying relief.’” Tapper, 2016 WL 4204794, at *4 (quoting
Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986); emphasis
supplied). Even assuming that Plaintiff is correct about the actual
relationship between Judge Noonan and the Zickl Brothers, and
assuming further that their relationship was relevant to the
Judgment in this action, any resulting conflict of interest falls
far short of the “extraordinary circumstances” necessary to invoke
Rule 60(b)(6). See Moskowitz v. Coscette, 51 F. App’x 37 (2d Cir.
2002) (any tension that may have existed within attorney’s dual
representation of police chief and town in police officer’s action
alleging retaliation in violation of First Amendment did not rise
to level of “extraordinary circumstance” warranting relief from
final judgment in favor of officer, even if attorney failed to
highlight evidence that police commission had instructed chief to
build a case against officer, where attorney did not take position,
In short, Plaintiff has not demonstrated, nor can he, that
“extraordinary circumstances” exist so as to justify reopening the
Judgment dismissing Plaintiff’s Complaint. Indeed, “extraordinary
circumstances” are plainly absent in this case, where Plaintiff has
been permitted to argue these meritless kinship claims repeatedly,
in both State and Federal court.
MOTION FOR SANCTIONS
Rule 11 requires that “[e]very pleading, written motion, and
other paper must be signed by at least one attorney of record in
the attorney’s name--or by a party personally if the party is
unrepresented[.]” FED. R. CIV. P. 11(a). By affixing his signature
to a pleading, the pro se litigant or the attorney certifies that
to the best of his knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances, that the pleading
(1) is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless
increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a
nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified,
are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on
the evidence or, if specifically so identified, are
reasonably based on a lack of information or belief.
FED. R. CIV. P. 11(b); see also Business Guides, Inc. v. Chromatic
Communications Enterprises, Inc., 498 U.S. 533, 542 (1991) (“The
signature ‘certifies to the court that the signer has read the
document, has conducted a reasonable inquiry into the facts and the
law and is satisfied that the document is well grounded in both,
and is acting without any improper motive.’”).
Plaintiff asserts entitlement to sanctions pursuant to Rule 11
on the basis that Judge Noonan allegedly committed “fraud, perjury,
and [made] misstatements meant to mislead” the Court. The allegedly
untruthful statements by Judge Noonan about the degree of kinship
between himself and the Zickl Brothers, discussed above, form the
misrepresentation, however, did not occur in the context of this
litigation. Consequently, it cannot be the basis for sanctions in
Plaintiff is cautioned that “the filing of a motion for
sanctions is itself subject to the requirements of [Rule 11] and
can lead to sanctions.” FED. R. CIV. P. 11 advisory committee’s note
(1993 Amendments) (quoted in Safe-Strap Co. v. Koala Corp., 270 F.
Supp. 2d 407, 421 (S.D.N.Y. 2003)). Plaintiff’s present motions,
which are also asserted verbatim in nine other cases he has filed
in this Court, are precisely the type of “abusive litigation
tactics,” Gaines v. Gaston, No. 92 CIV. 0643(DNE), 1998 WL 574380,
at *3 (S.D.N.Y. Sept. 8, 1998), that Rule 11 was intended to deter.
MOTION FOR ISSUANCE OF SUBPOENAS
Plaintiff seeks an order mandating Judge Noonan to appear
before the Court and state under oath how he is related to the
Plaintiff also seeks an order mandating that the journalist who
wrote the newspaper article discussed above be required to appear
and testify before the Court. Unsurprisingly, Plaintiff cites no
legal authority in support of these requests, which are entirely
frivolous and warrant no further discussion.
For the reasons discussed above, Plaintiff’s Motion to Vacate
the Judgment, Motion for Sanctions, and Motion for Issuance of
Subpoenas are denied with prejudice. The Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not
be taken in good faith, and therefore in forma pauperis status is
denied for purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
October 14, 2016
Rochester, New York.
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