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United States District Court, Southern District of New York

March 31, 2003


The opinion of the court was delivered by: Loretta A. Preska, United States District Judge


By notice of motion filed June 10, 2002, plaintiff Lok Prakashan, Ltd., d/b/a Gujarat Samachar ("plaintiff" or "Gujarat Samachar") moved for an Order, pursuant to Federal Rule of Civil Procedure 60(b), vacating the judgment entered December 26, 2001, granting further limited discovery, granting a new trial and granting plaintiff declaratory and equitable relief. (Docket entry no. 35). By notice of cross-motion filed July 1, 2002, defendant India Abroad Publications, Inc. ("defendant" or "India Abroad") moved for sanctions against plaintiff and plaintiff's counsel. (Docket entry no. 39). For the reasons set forth below, the motions are denied.


The facts relevant to the instant motion are as follows. After extensive discussions, the plaintiff and defendant entered into an exclusive agreement in 1983 concerning the publication of plaintiff's Weekly in North America. The Weekly commenced publication in March 1983. In 1984, plaintiff raised certain concerns that the Reserve Bank of India had regarding their agreement; this precipitated the signing of three documents in 1984. (Affidavit of John Virdone, Exs. B-D). The "1984 agreement" was the third of those documents. (Virdone Aff. Ex. D).

At trial, from December 3-7, 2001, plaintiff claimed, inter alia, that the 1984 agreement constituted a novation of the 1983 agreement, thereby affecting the advertising revenue sharing agreements between the parties, while defendant maintained, inter alia, that the 1984 agreement was not a novation, thereby leaving the 1983 agreement (under which defendant would receive 50% of all advertising revenue) intact. After deliberation, the jury rendered a verdict in favor of plaintiff in the amount of $279,000 and a verdict in favor of the defendant in the amount of $560,000. A final judgment in the amount of $281,000 against the plaintiff was entered on December 26, 2001.

Following trial, plaintiff filed a notice of appeal to the Second Circuit. However, on or about April 20, 2002, plaintiff requested permission to make a Rule 60(b) motion in this Court. On May 1, 2002, that request was granted. On June 10, 2002, plaintiff filed its Rule 60(b) motion. The notice of motion was accompanied by three supplemental affidavits. The first is the Affidavit of Nirman Shah, dated April 9, 2002. The second is the Affidavit of Shreyans Shah, dated April 19, 2002.

The third is the Affidavit and Expert's report of John Paul Osborn, dated May 31, 2002. Plaintiff asserts that the affidavits and other evidence presented in its motion establish, inter alia, that the evidence and testimony presented at trial, along with the various failures of plaintiff's trial counsel, amounted to a "fraud on the court" justifying relief under Rule 60(b)(3) and 60(b)(6).


Under Rule 60(b), "the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for . . . (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; . . . or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b).

Rule 60(b) motions should not be lightly granted. In this Circuit "it is well established that `a Rule 60(b)(3) motion cannot be granted absent clear and convincing evidence of material misrepresentations.'" Ross v. Global Bus. Sch., Inc., 99 Civ. 2826 (AGS), 2002 WL 31433609, at *2 (Oct. 30, 2002) (quoting Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir. 1989)). A motion pursuant to Rule 60(b)(3) is not a do-over; it "cannot serve as an attempt to relitigate the merits." Fleming, 865 F.2d at 484. Similarly, Rule 60(b)(6) "is properly invoked only when there are extraordinary circumstances justifying relief" and when "the judgment may work an extreme and undue hardship." Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) (internal citations omitted). Only when the motion presents "highly convincing" evidence should the court grant a 60(b) motion. See Kotlicky v. U.S. Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987) (quoting United States v. Cirami, 563 F.2d 26, 33 (2d Cir. 1977)).

Plaintiff, as the party urging the court to grant the Rule 60(b) motions, bears the burden of demonstrating that such "highly convincing" evidence exists and that relief under Rule 60(b) is thus warranted. Having reviewed carefully all of the evidence in the record at the time of trial as well as the evidence that plaintiff claims justifies the granting of the Rule 60(b) motions, I find that plaintiff has not carried its burden necessary for relief under Rule 60(b). The affidavits of Nirman Shah and Shreyans Shah, both sworn to in April 2002, do not constitute the type of "clear and convincing" evidence required for granting the relief plaintiff seeks. See, e.g., King v. First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002) (fraud upon the court under Rule 60(b) "must be established by clear and convincing evidence"). Rather, they argue essentially that the evidence put forth by defendant at trial was false and that the 1984 agreement should have been deemed a novation.

These arguments could have been made, and indeed were made, at trial, and they need not be litigated anew. The affidavit and proposed expert report of John Paul Osborn, dated May 31, 2002, is similarly insufficient. And to the extent plaintiff's trial counsel made tactical or other errors, the proper remedy — absent highly convincing evidence of gross or willful misconduct, which plaintiff has not presented — lies against plaintiff's trial counsel. See Advanced Portfolio Techs., Inc. v. Advanced Portfolio Techs. Ltd., 94 Civ. 5620, 2002 U.S. Dist. LEXIS 6521, at *16-17 (S.D.N.Y. Apr. 15, 2002) (detailing the limited instances in which relief under Rule 60(b)(6) might be warranted and denying relief thereunder). Plaintiff was fully able to present its case at trial — and, indeed, in the Court's observation, plaintiff's principals were fully engaged with trial counsel in doing so — and plaintiff's current attempt to relitigate the merits of its case by, inter alia, attacking the credibility of witnesses in a Rule 60(b) motion is unavailing.*fn1

In sum, a request for a second trial may not masquerade as a Rule 60(b) motion. Accordingly, plaintiff's Rule 60(b) motions are denied.


As part of its opposition to plaintiff's motions, defendant also moves, pursuant to 28 U.S.C. § 1927, for sanctions against plaintiff and plaintiff's counsel in the form of attorneys' fees and expenses.

Pursuant to 28 U.S.C. § 1927:

[a]ny attorney or other person admitted to conduct cases in any court of the United States . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
28 U.S.C. § 1927 (2002 revised ed.). Under that statute, a party must show bad faith, which is satisfied when "the attorney's actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay." Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986).

Though plaintiff has certainly toed the line between appropriate and inappropriate litigation practice, I do not find that its actions are so frivolous and vexatious as to warrant sanctions in this instance. Accordingly, defendant's motion for sanctions is also denied.


Plaintiff's Rule 60(b) motions (Docket entry no. 35) are denied. Defendant's cross-motion for sanctions (Docket entry no. 39) is denied. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.


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