Shira A. Scheindlin

MEMORANDUM

OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.:

Pro se plaintiff Luisa Esposito brought the above-captioned action pursuant to 42 U.S.C. § 1983 ("section 1983") and state law against the State of New York; the City of New York; the Office of Court Administration of the Unified Court System of New York; various individuals in their employ (collectively, the "State Defendants"); and certain attorneys in private practice. Esposito alleged that Allen H. Isaac, a civil attorney whom Esposito consulted with regard to a legal matter arising from a car accident, sexually assaulted her. She claims that her complaints to various state agencies were ignored due to an alleged conspiracy to protect Isaac. Esposito argued that defendants violated her rights to petition the Government for redress of grievances, to equal protection, and to due process under the First and Fourteenth Amendments to the United States Constitution, Esposito also brought several state law claims including breach of contract and assault.

On August 8, 2008, this Court dismissed the above-captioned case along with five other cases that were filed as related to Anderson v. State of New York, 07 Civ. 9599 (SAS). In these six actions, all of which involved alleged corruption in the New York State courts, the plaintiffs alleged an underlying wrongdoing by an attorney, followed by a complaint to a disciplinary committee, followed by the disciplinary committee's failure to take action. This Court dismissed these actions, stating that:

the United States Constitution does not permit this Court to supervise the departmental disciplinary committees or review the decisions of the courts of New York State. Regardless of the possibility of corruption in the courts of the State of New York, the only federal court that may review their decisions is the United States Supreme Court. Plaintiffs must direct their complaints to the state court system, the Attorney General for the State of New York, or the appropriate United States Attorney. Because the Court lacks jurisdiction to review the decisions of the departmental disciplinary committees, and for the other
reasons stated below, these actions are dismissed.

Esposito timely moved for reconsideration of the Aug. 8, 2008 Order, which this Court denied in an Order dated August 20, 2008. On September 1, 2010, more than two years later, Esposito moved to reopen her case under Federal Rule of Civil Procedure 60(b) on the basis of newly discovered evidence. That motion was also denied. Esposito appealed both the Aug. 8, 2008 Order and the denial of her Rule 60(b) motion to reopen. Both decisions were affirmed by the Second Circuit, which stated as follows:

Further, a governmental failure to protect an individual from private violence does not implicate a victim's due process rights unless the state actor created or enhanced the danger to the victim, which [Esposito] did not allege. Nor did [Esposito] allege any facts to suggest that she was intentionally discriminated against based on her gender or that she suffered any treatment disparate from similarly situated individuals that would support a "class-of-one" equal protection theory. Accordingly, [Esposito's] complaint failed to state a claim and was properly dismissed. Moreover, it would have been futile to give [Esposito] leave to amend her complaint because she had already amended it twice. Finally, we find that the district court did not abuse its discretion in denying [Esposito's]
Rule 60(b) motion because she demonstrated no "exceptional circumstances" that would justify setting aside the dismissal of her complaint.

Esposito now moves, yet again, to reopen her case under Rule 60(b) and (d)(3) on the basis of newly discovered evidence (the "Motion to Reopen"). In particular, Esposito bases her Motion to Reopen on "[n]ewly discovered evidence pertaining to: "[1] the recent [civil] filing of Attorney Nicole Corrado, [2] Plaintiffs witness, Ileana Filomeno (victim of Defendant, Allen H. Isaac) and [3] the Matter of Steven S, Greenberg." For the following reasons, Esposito's second Motion to Reopen, which is her third motion challenging the finality of the Aug. 8, 2008 Order, is denied.

I. LEGAL STANDARDS

A. Rule 60(b) in General

"Rule 60(b) was intended to preserve the delicate balance between the sanctity of final judgments and the incessant command of the court's conscience that justice be done in light of all the facts." Rule 60(b) does not provide a party with the opportunity to relitigate the merits of a case in an attempt to win a point already "carefully analyzed and justifiably disposed." Accordingly, motions for relief from judgment under Rule 60(b) are generally disfavored in the Second Circuit.

Rule 60(b) provides that a district court may relieve a party from a final judgment in six enumerated circumstances. The Second Circuit has held that "[m]otions under rule 60(b) are addressed to the sound discretion of the district court and are generally granted only upon a showing of exceptional circumstances." Finally, "pro se litigants are not... excused from the requirement that they produce 'highly convincing' evidence to support a Rule 60(b) motion." "The heavy burden for securing relief from final judgments applies to pro se litigants as well as those represented by counsel."

B. Rule 60(b)(2)

Rule 60(b)(2) provides relief from a final judgment where there is "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]" A Rule 60(b)(2) motion may be granted if the moving party can demonstrate the following:

"(1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching."

C. Rule 60(d)(3)

Rule 60(d)(3) permits a court to "set aside a judgment for fraud on the court." "Fraud on the court consists of conduct; ' 1) on the part of an officer of the court; that 2) is directed to the judicial machinery itself; 3) is intentionally false, willfully blind to the truth, or is in reckless disregard of the truth; 4) is a positive averment or a concealment when one is under a duty to disclose; and 5) deceives the court.'" Fraud on the court refers to "the most egregious conduct involving a corruption of the judicial process itself. Treatises speak of such flagrant abuses as bribing a judge, employing counsel to exert improper influence on the court, and jury tampering."

II. DISCUSSION

The alleged newly discovered evidence is irrelevant because all of the factual allegations in Esposito's Complaint were presumed true when her case was dismissed in August 2008. Esposito's Complaint was not dismissed because of a lack of evidence but rather on legal grounds. Once the federal claims were dismissed, this Court declined to exercise supplemental jurisdiction over the remaining state law claims.

Furthermore, Esposito has failed to show how the three categories of her alleged newly discovered evidence are relevant to her previously dismissed claims. First, Corrado's civil action against the New York State Unified Court System alleges sexual harassment, discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The allegations made by Corrado upon which Esposito relies relate to the chilling of Corrado's testimony in the Anderson case. Thus, nothing in the Corrado Complaint is remotely relevant to any of the claims previously brought by Esposito. Nor does the Corrado Complaint support Esposito's allegation regarding "systemic corruption" within the Departmental Disciplinary Committee for the First Judicial Department ("DDC"). Second, Esposito merely mentions Ileano Filomeno as a new witness but there is no substantive discussion of how Filomeno's proposed testimony would warrant reopening Esposito's action. In any event, Filomeno was identified as a new witness in Esposito's first motion to reopen which was rejected by this Court. Third, although Esposito includes an excerpt regarding the Matter of Steven S. Greenberg, presumably from some sort of disciplinary proceeding, she fails to mention how Greenberg's transgressions are related to her action. Other than twice citing Matter of Isaac,the Greenberg excerpt appears wholly unrelated to any of Esposito's claims. Thus, none of the allegations in the Esposito Affirmation actually represent newly discovered evidence, much less support a claim of fraud on the court.

In sum, none of the allegedly new evidence offered by Esposito serves to abrogate or waive the State Defendants' Eleventh Amendment immunity. Nor does it establish that the individual State Defendants are no longer entitled to absolute judicial or quasi-judicial immunity or that the private attorneys were state actors. Thus, the issues raised by Esposito do not alter this Court's prior legal conclusions regarding the viability of her federal claims and the reason this Court declined to exercise supplemental jurisdiction over her state claims. Accordingly, there is nothing in Esposito's Affirmation that supports reopening her case under Rule 60(b)(2) or (d)(3).

Alternatively, Esposito's Motion to Reopen is time-barred given that her case was dismissed on August 8, 2008. Rule 60(c)(1) states that: "A motion under Rule 60(b) must be made within a reasonable time." But motions based on newly discovered evidence under Rule 60(b)(2) must be made "no more than a year after the entry of the judgment or order or the date of the proceeding." Here, Esposito's second Motion to Reopen was filed on October 9, 2012, more than four years after the Aug. 8, 2008 Order was issued. Hence, to the extent Esposito is moving under Rule 60(b)(2), that motion is untimely. And while Rule 60(d)(3) does not contain any express limitations period, the claims raised in Esposito's Affirmation in no way support the type of fraud claim that would warrant relief under that subsection. Accordingly, the instant motion is time-barred.

III. CONCLUSION

For the reasons stated above, Esposito's Motion to Reopen is denied. The Clerk of the Court is directed to close the Motion to Re-Open (Docket Entry # 103).

SO ORDERED:

______________________

Shira A. Scheindlin

U.S.D.J.
Dated: New York, New York

November 13, 2012

- Appearances -

Plaintiff (Pro Se):

Luisa C. Esposito
For the State Defendants:
Monica A. Connell
Assistant Attorney General

For Harvey Gladstein & Partners:

Traycee Ellen Klein, Esq.
Epstein, Becker & Green, P.C.

For the City Defendants:

Philip Frank
Assistant Corporation Counsel

For Pollack Defendants:

Anthony Daniel Grande, Esq.
Morgan, Melhuish, Monaghan

For Allen H. Isaac:

Joshua S. Hurwit, Esq. Gordon & Rees, LLP