United States District Court, S.D. New York
December 8, 2005.
JUANA VIADA, ET AL., Plaintiffs,
OSAKA HEALTH SPA, INC., ET AL., Defendants.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
In the case at bar, brought under, inter alia, the Fair Labor
Standards Act, defendant Nam-Hi Lee ("Lee") has made a motion to
dismiss, pursuant to Fed.R.Civ.P. 60(b). Lee contends that the
relief she seeks is warranted because the plaintiffs have stolen
medical records and documents pertinent to their work and salary
history from premises controlled by the defendants and, thereby,
have hampered the defendants' ability to contest the allegations
made against them in this action. According to Lee, as a
consequence of the plaintiffs' misconduct, criminal charges have
been preferred against two of them by a local prosecutor.
The plaintiffs oppose Lee's motion. They contend that the
motion should be construed liberally as a request to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6), and, furthermore, that
inasmuch as Lee has relied upon matters outside the pleadings to
support her motion, the motion should be converted to a motion
for summary judgment, made pursuant to Fed.R.Civ.P. 56. Other defendants in the action have submitted a writing to the
Court in support of Lee's motion. They maintain that the motion
should be construed liberally as a request that the court
exercise its inherent equitable powers to sanction the plaintiffs
for seeking to use, in this action, evidence that was wrongfully
Fed.R.Civ.P. 60, which is a vehicle through which a litigant
may obtain relief from a judgment entered by a court, in its most
pertinent part, provides the following:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
from a final judgment, order, or proceeding for the
following reasons: . . . (3) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party. . . .
Based on the express language of Fed.R.Civ.P. 60(b)(3), it
is clear that a district court may relieve a party from a final
judgment for fraud or other misconduct. However, "[t]o prevail on
a Rule 60(b)(3) motion, a movant `must show that the conduct
complained of prevented the moving party from fully and fairly
presenting his case.'" State Street Bank and Trust Co. v.
Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004)
(quoting Taylor v. Texgas Corp., 831 F.2d 255, 259 [11th
In the instant case, no judgment has been entered. Since
Fed.R.Civ.P. 60 is a vehicle through which a litigant may obtain
relief from a judgment and no judgment has been entered in the
instant case, Lee's reliance on Rule 60 to obtain relief for what
she believes is misconduct on the part of the plaintiffs is
misplaced. However, because Lee is proceeding pro se in this
action, the Court is required to construe her motion papers
liberally, see Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 494
(1972); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991),
and to interpret Lee's submission to the Court in a way that will "raise the strongest
arguments they suggest." Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994).
The plaintiffs suggest that when viewed liberally, Lee's motion
should be construed as one made, pursuant to Fed.R.Civ.P.
12(b)(6), to dismiss the plaintiffs' complaint for failure to
state a claim upon which relief can be granted. The plaintiffs
contend that, if the court were to adopt their suggestion and
construe Lee's motion as one made pursuant to Fed.R.Civ.P.
12(b)(6), the court would be duty-bound to convert the motion
from a motion to dismiss to a motion for summary judgment, made
pursuant to Fed.R.Civ.P. 56, and disposed of it accordingly.
According to the plaintiffs, this would be warranted because Lee
has relied upon matters outside the pleadings to support the
motion now before the Court. Moreover, the plaintiffs maintain
that once Lee's motion to dismiss is converted to a motion for
summary judgment, the motion should be denied.
In support of their position that Lee's "Fed.R.Civ.P. 56
motion" should be denied, the plaintiffs note that Lee failed to
comply with Local Civil Rule 56.1 of this court. The relevant
provision of that Local Rule requires a party moving for summary
judgment to "annex to the notice of motion a separate, short and
concise statement of the material facts as to which the moving
party contends there is no genuine issue to be tried." Local
Civil Rule 56.1(a). The Local Rule also cautions that the
"failure to submit such a statement may constitute grounds for
denial of the motion." Id. Lee did not submit to the Court a
statement of the material facts about which she contends there is
no issue to be tried.
The plaintiffs also note that Lee's motion failed to address
the material facts of this case, that is, those facts that might
affect the outcome of the instant action. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986).
In particular, the plaintiffs allege that Lee's motion does not
address facts that are germane to the plaintiffs' claims for,
among other things, alleged violations of the federal and state
minimum wage and overtime laws. In addition, the plaintiffs
contend that Lee has failed to present the Court with facts, via
affidavit or otherwise, that would be admissible in evidence to
support her motion, as she is required to do by Fed.R.Civ.P.
56(e). The plaintiffs maintain that all these deficiencies
militate in favor of denying Lee's "Fed.R.Civ.P. 56 motion."
At this juncture in the litigation, it would not be reasonable
and appropriate to adopt the plaintiffs' suggestion, that Lee's
motion be construed liberally as a motion to dismiss, made
pursuant to Fed.R.Civ.P. 12(b)(6), and then converted to a
motion for summary judgment. This is so because, as
Fed.R.Civ.P. 12(b)(6) makes clear, before a court may convert a motion to
dismiss to one for summary judgment and dispose of it as provided
in Fed.R.Civ.P. 56, "all parties shall be given reasonable
opportunity to present all material made pertinent to such a
motion by Rule 56." Lee has not been made aware that her motion
to dismiss might be adjudicated by the court as a motion for
summary judgment, made pursuant to Fed.R.Civ.P. 56, and she
has not been given a reasonable opportunity to present to the
court such material as she might deem pertinent to the court's
adjudication of her motion pursuant to Fed.R.Civ.P. 56.
Therefore, before such action on Lee's motion could properly be
taken, Lee would need to be put on notice that the court intends
to convert her motion to dismiss to a motion for summary
judgment. Thereafter, Lee would have to be permitted an
opportunity to present all material pertinent to such a motion
that she believes the court needs to know in order to determine
whether she is entitled to summary judgment. As noted above, other defendants in the action support Lee's
motion. However, they believe that it should be construed
liberally by the court as a motion for the court to exercise its
inherent equitable powers to sanction the plaintiffs for seeking
to use, in this action, evidence that has been obtained
wrongfully. In support of their position, Lee's co-defendants
have directed the Court's attention to Fayemi v. Hambrecht and
Quist, Inc., 174 F.R.D. 319, 325 (S.D.N.Y. 1997). In Fayemi,
the plaintiff acknowledged that he removed, furtively,
confidential information from a computer at his employer's
offices so that he might use the information in the litigation.
However, unlike the situation in Fayemi, it has not been
determined that the plaintiffs removed improperly from their
former work sites documents belonging to the defendants that the
defendants contend are needed to defend against the allegations
made in this action. Therefore, at this point in the litigation,
there is no basis for the court to impose any sanctions upon the
plaintiffs for alleged misconduct.
Based on the above, the Court recommends that Lee's motion to
dismiss, made pursuant to Fed.R.Civ.P. 60, be denied. The
Court also recommends that, if your Honor determines to adopt the
suggestions made by the plaintiffs, that Lee's motion be
construed liberally as one made pursuant to Fed.R.Civ.P.
12(b)(6) and, further, that it be converted to a motion for
summary judgment, Lee be given notice of this conversion and an
opportunity to comply with Local Rule 56.1 and to present such
pertinent material to the court as she deems appropriate to have
the motion for summary judgment adjudicated fully.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of the Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to objections,
shall be filed with the Clerk of Court, with courtesy copies
delivered to the chambers of the Honorable Victor Marrero, United
States District Judge, 40 Centre Street, Room 414, New York, New
York 10007, and to the chambers of the undersigned, 40 Centre
Street, Room 540, New York, New York 10007. Any requests for an
extension of time for filing objections must be directed to Judge
Marrero. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL
RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE
REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO
Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v.
Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v.
Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
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