which revolve around the fraud plaintiff believes defendants have perpetrated on the Court and her alleged ineffective assistance of counsel.
A. RULE 60(b)(1)
Among her claims, plaintiff argues that she "should not be punished for inadequate representation." (Pl.'s Mem. Supp Relief J. at 24.) Plaintiff fails to state explicitly in her Memorandum the basis for her allegation that she was inadequately represented. However, the Court will infer that the claim is based on allegations in her affidavit and reply letter that her attorney sometimes acted "without [her] knowledge," and that she was never entitled to counsel of her choice because "she had no money." (Pl.'s Aff. at 2; Reply letter to Court of 10/26/95 at 6.) Plaintiff apparently went to seven different law firms before finding one that would take the case on contingency.
Relief from counsel's errors "normally is sought pursuant to 60(b)(1) on the theory that such error constitutes mistake, inadvertence, or excusable neglect." Nemaizer, 793 F.2d at 62. Yet even had plaintiff submitted "highly convincing" evidence that her attorney acted improperly, which she has not, the Court finds that the failures alleged are not so extraordinary that they warrant disturbing a final judgment. See Cirami, 563 F.2d at 33. Generally, "a person who selects counsel cannot thereafter avoid the consequences of the agent's acts or omissions." Nemaizer, 793 F.2d at 62; Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962). Plaintiff may have had some difficulty in procuring counsel, but there is no reason to believe that her selection was so restricted that she was unable to exercise some discretion.
B. RULE 60(b)(2)
Plaintiff also argues that several actions allegedly undertaken by defendants since summary judgment was granted represent "newly discovered evidence" that the Court must consider in a new trial. Under Rule 60(b)(2), however, "newly discovered evidence" only refers to evidence of facts in existence at the time of judgment of which the aggrieved party was excusably ignorant. See Ryan v. United States Lines Co., 303 F.2d 430, 434 (2d Cir. 1962); Rivera v. M/T Fossarina, 840 F.2d 152, 156 (1st Cir. 1988). Consequently, to the extent plaintiff bases her motion for relief on events occurring after May 26, 1995, the motion must be denied.
C. RULE 60(b)(3)
Plaintiff finally alleges that defendants deliberately destroyed, altered, or failed to produce certain transcripts and discoverable documents and that they committed perjury, bribery, and forgery in order to win summary judgment. The burden of proving such fraud is, of course, upon plaintiff. Furthermore, fraud is not to be presumed but must ordinarily be proven by clear and convincing evidence -- in other words, "highly convincing" evidence. See Clarkson Co. v. Shaheen, 544 F.2d 624, at 631 (2d Cir. 1976); Wright & Miller at § 2860. Finally, the fraud "must have prevented the moving party from fully and fairly presenting [her] case [and] must be chargeable to an adverse party." Wright & Miller at § 2860.
The Court will deny plaintiff motion pursuant to Rule 60(b)(3) for two reasons. First, while plaintiff has satisfied the explicit requirement that her motion for relief be filed within one year of judgment, Fed. R. Civ. P. 60(b), she has not shown the Court good reason for her failure to take appropriate action sooner. It is well-settled that courts have been "unyielding" in requiring such a showing. Wright & Miller at § 2857; Kotlicky, 817 F.2d at 9. Plaintiff apparently was aware, well before summary judgment was granted, of the existence and contents of all the documents that she claims were withheld or destroyed. She also most likely was aware of the acts that she alleges constitute perjury, bribery, and forgery before the judgment. Yet despite this knowledge, plaintiff failed to raise any of her claims at the time summary judgment was decided, and now raises them only four-and-a-half months later.
Second, plaintiff essentially is arguing that defendants "have improperly influenced this Court in its decision by a preordinated, cunning, unconscionable plan or scheme of defense based upon a great deal of misrepresentations and misconducts," much like the plaintiff in Mastini v. American Tel. & Tel. Co., 369 F.2d 378, 379 (2d Cir. 1966), cert. denied, 387 U.S. 933, 18 L. Ed. 2d 994, 87 S. Ct. 2055 (1967). But as was the case in Mastini, the Court finds that plaintiff here is attempting, to a considerable extent, to use her motion for relief from judgment to relitigate the merits of her claims of discrimination. In addition, her allegations of fraud, like those of the plaintiff in Mastini, have not been sufficiently substantiated with clear and convincing evidence. Plaintiff's claims consequently are not so "extraordinary" as to warrant overturning a final judgment.
The Court has balanced the policy in favor of hearing a litigant's claims on the merits against the policy in favor of finality. For the foregoing reasons, plaintiff is not entitled to relief from the Court's May 26, 1995, decision granting summary judgment in favor of defendants.
IT IS SO ORDERED.
Binghamton, New York
November 2, 1995
HON. THOMAS J. McAVOY
Chief U.S. District Judge
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