1B MOORE'S FEDERAL PRACTICE P 0.407, at 111-105. Because in this case plaintiff had a full and fair opportunity to discover and address the alleged misconduct of defendant and its fraud upon the court in Weldon I, she is forever barred from addressing that allegation in an independent action.
Even if plaintiff had not raised many of her present arguments before the Second Circuit, the court would nonetheless find them barred by res judicata. If plaintiff believed defense counsel's representations in Weldon I to be fraudulent, she should have addressed the issue during the pendency of the motion for summary judgment, during the appeal, or in her application for certiorari to the Supreme Court. That she had sufficient information to do so is obvious from her complaint. Plaintiff contends that defendant made misrepresentations in open court, where she was present, and in written argument, to which she responded. The law does not allow her to forego an argument in the underlying suit only to raise it in a separate action once she has lost on the merits of the underlying suit and has exhausted appellate review of the judgment in that suit.
As noted by the Supreme Court, "the doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, 'of public policy and private peace.'" Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 401, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981) (quoting Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 61 L. Ed. 1148, 37 S. Ct. 506 (1917)). The doctrine "serves vital public interests beyond any individual judge's ad hoc determination of the equities in a particular case," Moitie, 452 U.S. at 401, and thus there is "no principle of law or equity which sanctions the rejection by a federal court of . . . res judicata." Heiser v. Woodruff, 327 U.S. 726, 733, 90 L. Ed. 970, 66 S. Ct. 853 (1946). In addition to ensuring the repose of the victorious party, the doctrine of res judicata "reflects the refusal of the law to tolerate needless litigation," Angel v. Bullington, 330 U.S. 183, 192-93, 91 L. Ed. 832, 67 S. Ct. 657 (1947), thereby protecting parties "from the expense and vexation attending multiple lawsuits, conserv[ing] judicial resources, and foster[ing] reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 154-55, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979).
In light of these principles, the application of res judicata to the facts at bar is clearly warranted. Dismissing plaintiff's complaint on the basis of res judicata in this instance neither deprives the court of its power to remedy fraud committed upon it, nor denies plaintiff her day in court. Here, plaintiff has already had her day in court during Weldon I and the appeals therefrom. She was not prevented by defendant's alleged fraud from presenting any argument in the former suit that she now raises in the current one. Further, fraud on the court can not occur where plaintiff was afforded an opportunity for fair litigation of the dispute, because fraud on the court occurs only where the fraud seriously effects the integrity of the normal process of adjudication. Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988). Thus the application of res judicata to the facts of this case does not run counter to the interest of the court in preserving the integrity of its proceedings. The court therefore finds that as a matter of law plaintiff's claims are barred by principles of res judicata, and defendant's motion for summary judgment is granted with respect to plaintiff's charges of fraud upon the court and misconduct under Rule 60(b).
5. Equitable principles supporting summary judgment
Finally, the court notes that an independent action seeking to set aside a judgment of the court based on fraud, misconduct or fraud upon the court is addressed to the court's equity powers. See Cresswell, 922 F.2d at 71; Martina Theatre Corp., 278 F.2d at 801. Decisions in such equity actions are committed to the sound discretion of the court, informed by traditional principles of equity. Cresswell, 922 F.2d at 71. Thus, plaintiff must demonstrate that the situation in which she finds herself is not due to her own fault, neglect or carelessness. It is fundamental in an equity action to set aside judgment that relief may not be provided to a plaintiff who "'has, or by exercising proper diligence would have had, an adequate remedy at law, or by proceedings in the original action . . . to open, vacate, modify, or otherwise obtain relief against, the judgment.'" Id. (quoting Winfield Associates, Inc. v. Stonecipher, 429 F.2d 1087, 1090 (10th Cir. 1970)).
Again, as set forth above, plaintiff could have raised any and all of her present arguments in her papers and arguments to the court in Weldon I, in her appeal before the Second Circuit, or in her application for certiorari to the Supreme Court. She therefore had an adequate remedy in the original action. While her failure to address these issues in Weldon I is perhaps unfortunate, it does not justify a second opportunity for trial. She is thus precluded from proceeding in this action by traditional principles of equity as well as by res judicata and Rule 60(b). In short, defendant's motion for summary judgment dismissing plaintiff's complaint is granted in its entirety.
C. OTHER MOTIONS
Because plaintiff's action can not withstand defendant's motion for summary judgment, plaintiff's cross-motion for summary judgment is denied. Her motion to suppress evidence is moot and therefore is also denied.
Further, plaintiff's motion to strike defendant's Answer is denied. This motion is based on the fact that defendant's Answer was signed by William Pease, an Assistant United States Attorney for the Northern District of New York who is not an attorney of record in this case. Mr. Pease signed the answer, indicating that he was doing so "for" both Mr. Einerson and Mr. Axelrad, defendant's attorneys of record. See Answer, Doc. 12. Plaintiff argues that because the Answer was not signed by an attorney of record as required by Federal Rule of Civil Procedure 11, the court should strike the Answer and enter judgment in favor of plaintiff.
Rule 11 provides that "every pleading . . . of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated." Fed. R. Civ. P. 11. An attorney who signs a pleading certifies that he has read the pleading, and that to the best of his knowledge it is "well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Id. If a pleading is not signed, Rule 11 dictates that "it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader." Id. If, on the other hand, the pleading is signed in violation of Rule 11, the court is required to impose upon the person who signed it, a represented party, or both, an appropriate sanction. Such a sanction may include an order to pay the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including attorney's fees. Id.
In this instance defendant's Answer was signed, and by signing the Answer the court deems that Pease became an attorney of record. Judge Neal P. McCurn implicitly recognized Pease as such when he ordered an Order to Show Cause and supporting papers filed by plaintiff to be personally served upon the United States Attorney for the Northern District of New York. See Order, Doc. 3.
Even if Pease is not considered an attorney of record, his notation that he was signing "for" Einerson and Axelrad indicates that he did so at their instruction. The signature requirement of Rule 11 is therefore met, as Pease's signature attests to Einerson's and Axelrad's certification that the Answer is well grounded in fact and warranted by law.
Finally, even if the court were to deem the signature invalid, no sanction is appropriate for such an error. There is no indication that the Answer was filed in bad faith or for improper motive. Moreover, there is no indication that the Answer is frivolous or without foundation in law. Therefore no harm resulted from Mr. Pease signing the Answer on behalf of other trial counsel, and sanctions are inappropriate. Plaintiff's motion to strike the Answer is denied.
In sum, defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56(c) is granted for the aforementioned reasons. All other motions presently before the court are denied. The Clerk of the Court is directed to enter judgment in favor of defendant dismissing this action in its entirety.
It is So Ordered.
Dated: March 2, 1994
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE