UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
October 2, 2012
CHRISTINE C. ANDERSON, PLANTIFF,
THE STATE OF NEW YORK, THE OFFICE OF COURT ADMINISTRATION OF THE UNIFIED COURT SYSTEMS, THOMAS J. CAHILL, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, SHERRY K. COHEN, IN HER OFFICIAL AND INDIVIDUAL CAPACITY, AND DAVID SPOKONY, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, DEFENDANTS.
The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
OPINION AND ORDER
Plaintiff Christine C. Anderson, proceeding pro se, moves to re-open
her case pursuant to Federal Rule of Civil Procedure ("Rule") 60(b) and (d)(3).*fn1
Plaintiff seeks a new trial on the grounds of newly discovered evidence consisting
of a federal lawsuit filed by Nicole Corrado in the Eastern District
of New York*fn2 and fraud. Plaintiff alleges that this
newly discovered evidence corroborates the fact that Corrado was
threatened into not testifying at plaintiff's trial.*fn3
For the following reasons, plaintiff's motion is
A. Anderson's Case
Represented by counsel, Anderson brought suit against defendants pursuant to, inter alia, Title VII of the Civil Rights Act of 1964 (" Title VII"), 42 U.S.C. § 1981 (" section 1981"), 42 U.S.C. § 1983 ("section 1983"), New York State Executive Law § 296, and state common law. Plaintiff alleged, under both federal and state law, that she was unlawfully terminated and subjected to a hostile work environment because of her race (African American), color (black), and national origin (Jamaican). Plaintiff further claimed that defendants: deprived her of the right to make and enforce contracts; unlawfully retaliated against her for having exercised her constitutional right to free speech; violated her Fourteenth Amendment rights to due process and equal protection by discriminating against her; and that the public entity defendants breached a state collective bargaining agreement.
On April 27, 2009, this Court issued an Opinion and Order granting partial summary judgment to defendants.*fn4 In that Order, plaintiff's claims of discrimination based on race, color and national origin were dismissed. Claims based on the following were also dismissed: section 1981, due process, equal protection, and state law including breach of contract.*fn5 Plaintiff was left with a single First Amendment retaliation claim against Thomas J. Cahill, Sherry K. Cohen, and David Spokony (the "individual defendants") in their individual capacities.*fn6 The gravamen of plaintiff's retaliation claim was that the individual defendants, all of whom worked at the Departmental Disciplinary Committee of the Appellate Division, First Department, New York State Supreme Court ("DDC"), retaliated against her for exercising her constitutional right to free speech. Plaintiff claimed that the individual defendants retaliated against her because she reported acts of misconduct and corruption by the DDC, otherwise know as "whitewashing."*fn7 In particular, Anderson complained that "the DDC favored certain well-connected respondents and attorneys through lenient treatment otherwise known as 'whitewashing,' and that such whitewashing tarnished the mission of the DDC."*fn8 Because I found a disputed issue of material fact, defendants' summary judgment motion seeking to dismiss plaintiff's First Amendment retaliation claim was denied.*fn9
A jury trial was held in October 2009. Corrado was listed as a witness for plaintiff in the Joint Pretrial Order but she was not called as a witness at trial.
Nor was there any discussion about her testifying at trial. On October 29, 2009, the jury returned a verdict for the defendants and judgment was entered the next day. Plaintiff appealed the judgment on November 25, 2009. On April 4, 2011, the Second Circuit affirmed the jury's verdict.*fn10
B. The Corrado Complaint
Plaintiff now argues that there is new evidence that Corrado, a DDC employee, was threatened as a witness in connection with plaintiff's action.*fn11 The allegedly new evidence consists of the following four paragraphs in Corrado's Complaint:
27. In or around June of 2008, Defendant learned Plaintiff [Corrado] would be testifying as a non-party witness in a civil action against Defendant which alleged racial discrimination and other improper conduct on the part of Defendant and its supervisors.
28. In or around June of 2008, in retaliation for Plaintiff agreeing to provide corroborating testimony in the aforementioned discrimination suit, Alan Friedberg, the Division Chief, began closely monitoring Plaintiff's conduct and writing memos reflecting negative comments concerning Plaintiff's productivity and work practices in her file, while not disclosing said memos to Plaintiff.
29. In or around August 2008, approximately two days prior to Plaintiff testifying in the discrimination case against Defendant, Bratton [Plaintiff's supervisor] approached Plaintiff in her office and informed her that in 2007, as a result of her rejecting him, he admitted himself into the psychiatric ward at St. Vincent's hospital for "severe depression and suicidal tendencies" and that he was warning her accordingly. When Plaintiff asked Bratton what he meant, Bratton stated in response, "I am just warning you" while staring intensely at the Plaintiff.
30. On or around August 21, 2008, Plaintiff gave testimony against Defendant in the discrimination lawsuit.*fn12
In fact, Corrado was deposed by plaintiff's attorney on August 21,
2008, approximately fourteen months before the trial.*fn13
During her deposition, Corrado referred to a former
supervisor, Sherry Cohen, as: arrogant, ill motivated, dictatorial,
difficult, combative, confrontational, racially insensitive and very
hostile.*fn14 Corrado also testified that Cohen had
poor management skills, engaged
in religious discrimination, and was a racist and sexist.*fn15
In fact, Corrado stated that it was her belief that Cohen's
mistreatment of plaintiff was related to plaintiff's race.*fn16
When asked how she felt about being deposed, Corrado
I'm definitely -- I've been feeling a lot of stress and concern for different reasons. Obviously, Mr. Friedberg and other members of my office, they know that I was, you know, subpoenaed to appear. But it's very difficult, it's stressful. . . . I've been getting, you know, strange sort of treatment from [Cohen] since she learned that I was going to be a witness. It's been very uncomfortable for me.*fn17
Corrado further testified: "But I still think it's important to, obviously, tell you these things, and so I am, regardless of these feelings."*fn18
C. The Letter Exchange and Court Conference
Anderson's attorney, John Beranbaum, sent a letter to this Court which states, in relevant part:
I am writing regarding a sensitive matter concerning possible witness tampering. I previously advised the opposing counsel of this matter. As you know, Ms. Anderson is suing the State of New York for her wrongful termination as an attorney with the First Judicial Department's Departmental Disciplinary Committee ("DDC"). During discovery, plaintiff deposed a former co-worker, an attorney currently working at the DDC, Nicole Corrado. Ms. Corrado recently contacted my client to tell her that a DDC supervisor, shortly before her deposition, had given her [a] "warning" about the testimony she was to give at the deposition. Ms. Corrado reported this matter to the New York State Supreme Court, Appellate Division, First Department . . .
I have no basis to believe that Ms. Corrado's deposition testimony regarding the merits of this case was altered as a result of the warning she received. From what I can tell, the supervisor in question was more concerned with what Ms. Corrado might say about the supervisor rather than with what she might say about the substance of this case. Nonetheless, I believe this is a serious matter, the Office of the Inspector General has recommended that I advise the Court about it, and Ms. Corrado is very upset about the entire experience. . . .*fn19
Defendants submitted a letter in response which states that "[w]hatever 'warning' Mr. Bratton gave Ms. Corrado concededly had no impact on her deposition in this case."*fn20 The letter goes on to state that based on Ms. Corrado's deposition in this matter, taken on plaintiff's initiative, it is impossible to conclude that the deposition was influenced in a way adverse to plaintiff. In fact, Ms. Corrado went out of her way to be helpful to plaintiff, albeit through non-admissible conclusory statements and conjecture.*fn21
These two letters were briefly discussed at the end of a court conference held on October 30, 2008. During that conference, the following colloquy ensued:
MR. BERANBAUM: Your Honor, would you want to address my second letter?
THE COURT: Oh, right. Your second letter. You know, I don't think there is much to address. I read the letter. I'm not sure that you are asking me anything. You just seem to want to tell me something or report it to me. Okay. You reported it to me. You are not really asking me to do anything, are you? If so, your letter didn't make that clear. Do you want me to do anything? We don't need names, I know you are concerned about privacy. What do you want me to do?
MR. BERANBAUM: As an officer of the court, I wanted to apprise the Court of it and, if the Court felt necessary, to refer it to anybody.
THE COURT: I don't.*fn22
II. LEGAL STANDARDS
A. Rule 60(b)(2)
The relief available under Rule 60(b) is equitable in nature.*fn23 "The rule 'strikes a balance between serving the ends of justice and preserving the finality of judgments.' However, because the grant of a Rule 60(b) motion affords the movant 'extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances.'"*fn24 "Accordingly, a party seeking relief under this rule must show 'highly convincing' evidence in support of [her] motion, good cause for [her] 'failure to act sooner,' and that the non-moving party would not suffer undue hardship."*fn25 A Rule 60(b) motion is "addressed to the sound discretion of the district court."*fn26
Rule 60(b)(2) provides relief from a final judgment where there is "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]" "Where alleged new evidence is concerned, the legal standards under Rule 59(a)(2) and Rule 60(b)(2) are the same."*fn27 A motion for a new trial may be granted if the moving party can demonstrate that "(1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching."*fn28
Furthermore, "a new trial may be ordered to prevent a grave miscarriage of justice even though the 'newly discovered evidence' supporting that order would have been available to the moving party at trial had that party exercised proper diligence."*fn29 This exception, however, has been restricted to cases in which the evidence is "practically conclusive."*fn30 Finally, motions made pursuant to Rule 60(b)(2) must be made no more than one year after the entry of judgment.*fn31
B. Rule 60(d)(3)
Rule 60(d)(3) permits a court to "set aside a judgment for fraud on the court." Rule 60(b)(3), on the other hand, provides for relief from judgment where there is "fraud, . . . misrepresentation or misconduct by an opposing party[.]" As with Rule 60(b)(2), there is a one year statute of limitations for claims brought under Rule 60(b)(3).*fn32
Rule 60(b) is not intended to limit a court's power to set aside a
judgment under Rule 60(d)(3) for fraud upon the court.*fn33
Thus, there is potential overlap between Rule 60(d)(3), which
addresses fraud upon the court, and Rule 60(b)(3), which addresses
fraud by an opposing party.*fn34 "If, however, a
movant could have pursued a timely Rule 60(b)(3) motion but
inexcusably failed to do so, the movant is precluded from relying on
Rule 60(d) to bring [her] claims outside of Rule 60(b)(3)'s one-year
statute of limitations period."*fn35
The requirements for relief under Rule 60(d)(3) are stringent and narrow.*fn36
The type of fraud necessary to sustain an independent action attacking the finality of a judgment is narrower in scope than that which is sufficient for relief by timely motion under Rule 60(b)(3) for fraud on an adverse party. Fraud upon the court as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication. Fraud upon the court should embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases. Fraud upon the court must be established by clear and convincing evidence.*fn37
"Further, the fraud, misrepresentation or conduct must have actually
deceived the court. If a court's judgment was not influenced by the
conduct at issue, the judgment should not be set aside."*fn38
In sum, "because a party cannot fully and fairly present
[her] case if the court has been improperly influenced, the standard
applied to allegations of Rule 60(b)(3) fraud -- that a party must be
shown to have
been precluded from fully and fairly representing [her] case -- also
applies in the
context of a Rule 60(d)(3) motion for fraud on the court."*fn39
A. Rule 60(b)(2)
Plaintiff seeks to re-open her case nearly three years after judgment was entered on two grounds: newly discovered evidence and fraud. As stated earlier, newly discovered evidence is governed by Rule 60(b)(2), which has a one year statute of limitations. According to plaintiff, Corrado's federal lawsuit corroborates the fact that Corrado was threatened and is therefore newly discovered evidence. But plaintiff knew of the threat made to Corrado shortly after it was made in 2008. Allegations that corroborate that which is already known do not constitute newly discovered evidence. Thus, there is no legal basis for this claim, which is time barred in any event.
The only allegation in the Corrado Complaint that could possibly be considered newly discovered evidence is the allegation that Alan Friedberg retaliated against her upon learning of her imminent deposition.*fn40 This evidence is of slight probative value, however, given that Friedberg was not a defendant in plaintiff's case. While evidence of this alleged retaliation may have helped show the existence of a "retaliatory environment" in Anderson's case, the probability that such evidence would have changed the outcome of the jury's verdict is practically nil. This is not the highly convincing evidence needed to support a Rule 60(b)(2) motion. Accordingly, plaintiff's motion under Rule 60(b) is denied in its entirety.
B. Rule 60(d)(3)
The grounds supporting a claim of fraud were known by plaintiff and raised with the Court at a conference held on October 30, 2008, almost four years ago. According to the Beranbaum Letter, Corrado informed plaintiff of her situation some time between August and October 24, 2008. Despite having this knowledge, plaintiff did not ask this Court to take any action at the conference. Nor did she raise this matter again during the pendency of her case. Accordingly, plaintiff cannot use Rule 60(d)(3) to avoid the one year limitation period applicable to Rule 60(b)(3) motions.
Rule 60(d)(3) does not have a specific limitations period. Assuming, arguendo, that plaintiff's fraud claim could not have been brought under Rule 60(b)(3), it would not be time barred. Nonetheless, plaintiff's Rule 60(d)(3) motion fails for a number of other reasons. First, in her federal Complaint, Corrado does not allege that she was retaliated against, threatened, or otherwise dissuaded from testifying at trial. The threat was allegedly made in August 2008, approximately two days before Corrado was deposed. The trial took place in October of 2009. Although there is temporal proximity between the threat and Corrado's deposition, the threat was remote by the time the trial took place more than one year later. In sum, there is no evidence that Corrado did not testify at plaintiff's trial because she was threatened or otherwise intimidated by Bratton or any other supervisor. Without evidence of intimidation at the time of trial, there can be no fraud, much less fraud upon the court. Second, Corrado expressed significant hostility and criticism of her former DDC supervisors at her deposition. If the alleged threat had no impact on Corrado's deposition testimony, it is unlikely to have had any impact on her decision whether to testify at trial, if she in fact made that decision.*fn41 Finally, even if Corrado was intimidated into not testifying at trial, her absence did not seriously affect the adjudicative process, nor did it actually deceive this Court. At best, Corrado would have been a tangential witness given the limited extent of her testimony. Thus, plaintiff was not prevented from fully and fairly presenting her case as a result of Corrado's absence. Given the complete lack of fraud, a new trial is not warranted and plaintiff's Rule 60(d)(3) motion is denied.
For the foregoing reasons, plaintiff's amended motion for an Order pursuant to Rule 60(b) and (d)(3) is denied. The Clerk of the Court is directed to close this motion (Docket Entry # 132).