Opinion
No. 10-1601-cv.
April 20, 2011.
Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.
Allen B. Gottlieb, Aventura, FL, pro se.
David M. Becker, General Counsel, Melinda Hardy, Assistant General Counsel, Christopher M. Bruckmann, Senior Counsel, Securities and Exchange Commission, Washington, D.C., for Defendantr-Appellee.
Present: PIERRE N. LEVAL, ROBERT A. KATZMANN, PETER W; HALL, Circuit Judges.
SUMMARY ORDER
Appellant Allen Gottlieb, pro se, appeals the district court's February 11, 2010 and March 31, 2010 post-judgment orders denying his motions for reconsideration. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This Court reviews the denial of a motion for reconsideration for abuse of discretion. Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004). "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Transaero, Inc. v. La Fuerza Aerea Boliviano, 162 F.3d 724, 729 (2d Cir. 1998) (quoting Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)) (internal quotation marks omitted).
With respect to Gottlieb's appeal of the district court's February 11, 2010 order, his claim that FBI agent Gerard Forrester's affidavit establishes that the Securities and Exchange Commission committed fraud on the district court could have been raised in his prior motions (brought in 2005) for post-judgment relief. Accordingly, the district court did not abuse its discretion in finding Gottlieb's claim to be barred by the doctrine of res judicata, which provides that "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); accord King v. Fox, 418 F.3d 121, 131 (2d Cir. 2005).
With respect to Gottlieb's appeal of the district court's March 31, 2010 order, this Court has determined sua sponte that the notice of appeal, which was improperly filed in this Court on July 16, 2010, was untimely. See Fed.R.App.P. 4(a)(1)(B) ("When the United States or its officer or agency is a party, the notice of appeal may be filed [with the district clerk] by any party within 60 days after the judgment or order appealed from is entered."). Accordingly, we lack jurisdiction over Gottlieb's appeal of the March 31, 2010 order, which must therefore be dismissed. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).
We have considered Gottlieb's other arguments on appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.