Opinion
05 Civ. 2401 (LAP).
February 23, 2007
OPINION AND ORDER
Plaintiff Allen B. Gottlieb ("Plaintiff"), proceeding pro se, brings this action seeking relief from a judgment entered in SEC v. Stewart et al., No. 98 Civ. 2636 (LAP) (S.D.N.Y.) ("Stewart"). Plaintiff wishes to introduce new evidence in his defense pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Plaintiff also seeks to have the Court recuse itself from hearing his case any further, pursuant to 28 U.S.C. §§ 144 and 455. For the reasons set forth below, Plaintiff's motions are denied.
BACKGROUND
The Securities and Exchange Commission ("SEC") brought the underlying Stewart action against Plaintiff and other individuals and entities for violations of the antifraud provisions of both the Securities Act of 1933 and the Securities Exchange Act of 1934. (Compl. at 3). Plaintiff's case was tried before this Court in a four-day bench trial that commenced on December 9, 2002, and concluded on December 12, 2002. (Judgment at 1).On January 21, 2003, judgment was entered against Plaintiff inStewart. That judgment became final on November 29, 2004, when Plaintiff's petition for writ of certiorari was denied by the Supreme Court. See Gottlieb v. SEC, 543 U.S. 1003. The present action was filed on February 28, 2005, a year and three months after the judgment in Stewart became final.
Plaintiff brings the present action pro se. He seeks post-judgment relief because of newly discovered evidence pursuant to Rule 60(b)(2). Through the vehicle of this new case, Plaintiff attempts to introduce documents he claims were "discovered very recently in an old box in [his] garage that had not been opened for over ten years." (Pl. Resp. at 4). Plaintiff claims the documents are exculpatory evidence that would "probably result in the judgment against him [in Stewart] being overturned." (Id. at 5).
The Court will construe Plaintiff's claims liberally and hold papers submitted by him to a less stringent standard than those drafted by attorneys. See Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 762 (2d Cir. 1990) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
"Pl. Resp." refers to Plaintiff's Response to Order to Show Cause and Motion to Recuse dated Nov. 28, 2005.
Plaintiff also alleges fraud by the SEC to support his claim for post-judgment relief under Rule 60(b)(3) or, alternatively, as an independent action. (Pl. Reply at 1). Plaintiff's allegations of fraud upon the Court by the SEC include an attack on the SEC's calculations of sums to be disgorged by Plaintiff. (Id. at 8). These calculations were received into evidence against Plaintiff in the Stewart trial. (Id. at 7). Plaintiff also accuses the SEC of knowingly submitting "fraudulent misrepresentations and spins" to the Court though a calculated program of making unsupported suggestions of his wrongdoing, misrepresenting evidence, and "fraudulently . . . providing the Court with Bank Records, of a bank error." [sic]. (Id. at 7, 12).
"Pl. Reply" refers to Plaintiff's Reply to SEC's Response dated Feb. 17, 2005.
"SEC Mem." refers to the SEC's Reply to Response of Plaintiff Gottlieb to Order to Show Cause and Response to Plaintiff's Motion to Recuse dated Jan. 31, 2006.
Finally, Plaintiff seeks to have this Court recuse itself from considering his post-judgment attacks. Plaintiff alleges that the Court is personally biased against him and partial to the SEC. (Id. at 1). In short, Plaintiff asserts that the SEC's "many frauds . . . have prejudiced [the Court's] opinion of [Plaintiff] beyond repair." (Pl. Resp. at 6). Plaintiff claims that the Court's rulings unfavorable to Plaintiff are evidence of the Court's bias. (Id. at 11). Plaintiff further claims that an exchange of words between Plaintiff and the Court regarding courtroom etiquette is additional evidence of the Court's bias. (Id. at 6).
DISCUSSION
1. One-Year Time Limit for Newly Discovered Evidence Under Rule 60(b)(2) And Fraud Under Rule 60(b)(3)Rule 60(b)(2) permits the Court to grant relief from a final judgment for reason of newly discovered evidence. Fed.R.Civ.P. 60(b)(2). Rule 60(b)(3) permits post-judgment relief for reasons of fraud. Fed R. Civ. P. 60(b)(3). However, motions for reasons (2) and (3) must be made "not more than one year after judgment." Fed.R.Civ.P. 60(b). This time constraint is absolute and controlling. See In re Lawrence, 293 F.3d 615, 626 (2d Cir. 2002) (upholding the one-year limit for a 60(b)(3) motion); Freedom, N.Y., Inc. v. United States, 438 F. Supp. 2d 457 (S.D.N.Y. 2006) (applying the one-year limit to bar motions under Rule 60(b)(2) and (3)); Cf. Ackerman v. United States, 340 U.S. 193, 197 (1950) (a motion under Rule 60(b)(1) may not be made more than one year after judgment); Stephanopoulos v. City of New York, No. 01 Civ. 0771, 2007 WL 160819, at *3 (E.D.N.Y. Jan. 17, 2007) (holding that the one-year limitation must be strictly enforced, and finding a Rule 60(b)(1) motion filed one year and three months after the relevant order to be "far beyond the time limits").
Rule 60(b)(1) permits post-judgment relief for reasons of "mistake, inadvertence, surprise, or excusable neglect" and is similarly subject to a one-year time restriction. Fed R. Civ. P. 60(b)(1).
Plaintiff's motion based on "newly discovered" documents is clearly time-barred, as Plaintiff seeks to file it more than one year after the judgment in Stewart became final. Accordingly, the Court will not reach the merits of Plaintiff's arguments that the purportedly new documents are exculpatory. Plaintiff's motion to introduce his "new" evidence is denied.
Insofar as Plaintiff's claim of fraud is brought under Rule 60(b)(3), as opposed to as an independent action in equity, it is similarly time-barred and is denied.
2. Independent Action In Equity Under Rule 60(b)
The Court may entertain Plaintiff's motion as "an independent action . . . to set aside a judgment for fraud upon the court." Fed.R.Civ.P. 60(b). Rule 60(b) expressly "does not limit the power of the court" to do so. "This power is one that is rooted in tradition and governed by general equitable principals."Treadaway v. Academy of Motion Picture Arts and Sciences, 783 F.2d 1418, 1420 (9th Cir. 1986). Nevertheless, Plaintiff's status as a pro se litigant does not excuse him from the requirement of producing "highly convincing evidence" in support of his independent action in equity. Gil v. Vogilano, 131 F. Supp. 2d 486, 494 (S.D.N.Y. 2001).
Plaintiff fails to describe any fraudulent action by the SEC. Plaintiff was not denied the opportunity to counter the SEC's evidence introduced during the trial in Stewart. Plaintiff's unsupported claim of fraud upon the Court fails to meet the standard of "highly convincing evidence." Accordingly, Plaintiff's independent action in equity is denied.
3. Recusal For Bias Or Partiality
Plaintiff's motion for recusal does not include a formal affidavit pursuant to 28 U.S.C. §§ 144 and 455(b)(1). Nonetheless, because Plaintiff appears pro se, the Court will construe his pleadings liberally and address the merits of his complaint. Plaintiff's complaint must include some "factual demonstration of bias," and "rulings made during the course of a case are generally not regarded as evidence of bias, even if they appear to disproportionately favor one side." Hoatson v. New York Archdiocese, No. 05 Civ. 10467, 2006 WL 3500633, at *2 (S.D.N.Y. Dec. 1, 2006); Locasio v. United States, 372 F. Supp. 2d 304, 315 (E.D.N.Y. 2005) (same).
A bias against a party must be extra-judicial in origin to require recusal. See Liteky v. United States, 510 U.S. 540, 550 (1994) ("The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant . . . [b]ut the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings.").
Plaintiff does not allege the Court's bias to stem from anything other than the Court's participation in his case. Thus, he fails to establish grounds for the Court's recusal. Accordingly, his motion for recusal is denied.
CONCLUSION
For the reasons set forth above, Plaintiff's motions for post-judgment relief and for recusal [dkt. nos. 1 and 10] are denied.
SO ORDERED: