United States District Court, E.D. New York
STEVEN MANNEY and JOSEPH LEONARDO, as assignees of Bassline Digital Inc., Plaintiffs,
INTERGROOVE MEDIA GmbH (FORMALLY [sic] INTERGROOVE TONTRAGER VERTRIEBS GMBH, and INTERGROOVE U.S. INC.), PETER MATTHIAS, and EVA MATTHIAS, Defendants.
OPINION AND ORDER
SANDRA J. FEUERSTEIN, District Judge.
On or about July 12, 2010, plaintiffs Steven Manney and Joseph Leonardo (collectively, "plaintiffs"), as assignees of Bassline Digital Inc. ("Bassline"), commenced an action in the Supreme Court of the State of New York, County of Nassau against defendant Intergroove Media GMBH (formally [sic] Intergroove Tontrager Vertriebs GMBH and Intergroove U.S., Inc.) ("Intergroove"), and defendants Peter Matthias and Eva Matthias (collectively, "the Matthias defendants"), alleging claims for breach of contract; work, labor and services rendered; implied contract; unjust enrichment; and fraud in the inducement. On October 1, 2010, Intergroove filed a notice of removal pursuant to 28 U.S.C. §§ 1441(b) and 1446, removing the action to this Court pursuant to this Court's diversity jurisdiction under 28 U.S.C. § 1332. Thereafter, plaintiffs timely moved pursuant to 28 U.S.C. § 1447(c) to remand this matter to the state court; the Matthias defendants moved to dismiss the action against them, inter alia, based upon plaintiffs' lack of legal capacity to sue or, in the alternative, for failure to state a cause of action; and Intergroove separately moved to dismiss this action, inter alia, based upon plaintiffs' Jack of legal capacity to sue or, in the alternative, upon the ground of forum non conveniens. By order dated November 30, 2011, the branches of defendants' respective motions seeking dismissal of this action based upon plaintiffs' lack of legal capacity to sue were granted, the action was dismissed in its entirety without prejudice, the motions were otherwise denied as moot and plaintiffs' motion for a remand was also denied as moot. Judgment was entered against plaintiffs on December 6, 2011. Plaintiffs did not appeal the final judgment in this action.
Thereafter, plaintiffs moved pursuant to Rule 60(b) of the Federal Rules of Civil Procedure to vacate the judgment against them and for reconsideration of the November 30, 2011 order. By opinion and order dated September 28, 2012, plaintiffs' for reconsideration was denied. Plaintiffs did not appeal the September 28, 2012 order.
On March 4, 2013, more than five (5) months after plaintiffs' first motion for reconsideration was denied, and almost fifteen (15) months after judgment was entered against plaintiffs in this case, plaintiffs filed the instant motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking reconsideration of the September 28, 2012 order denying their motion for reconsideration of the November 30, 2011 order and final judgment. For the reasons set forth below, plaintiffs' motion is denied.
Plaintiffs contend, inter alia: (I) that the September 28, 2012 order is "in violation of Delaware State Law and New York State Law, " (Affidavit of Joseph Leonardo in Support of the March 4, 2013 Filed Rule 60 Motion ["Leonardo Aff."], at 2), and is unconstitutional; (2) that there is new evidence that could not be obtained prior to the September 28, 2012 order, i.e., an October 2012 New York State good standing certificate, a March 18, 2013 Delaware State good standing certificate, the February 12, 2013 discovery that lntergroove U.S. was "additionally operating alongside its parent company in New York State at E-One Entertainment, " (Leonardo Aff. at 12), and the pendency of an "October 10, 2012 related N.Y.S. Court action 12-012847 * * * demonstrat[ing] the Plaintiff(s) unencumbered ability to maintain a related action carried by the assignees as individuals, " (Leonardo Aff. at 13); and (3) that the Court failed to entertain new evidence submitted upon their first motion for reconsideration.
Rule 60(b) provides, in relevant part, that:
"the court may relieve a party * * * from a final judgment, order, or proceeding for the following reasons: (I) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud * * *, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief."
Initially, having failed to appeal the November 30, 2011 order dismissing this action, the final judgment against them and the September 28, 2012 order denying their Rule 60(b) motion seeking reconsideration of the November 30, 2011 order and final judgment, plaintiffs have "waived the right to challenge th[o]se orders [and judgment]." Malley v. City of New York, 91 Fed.Appx. 182, 184 (2d Cir. Mar. 2, 2004) (summary order) (affirming the denial of the plaintiff's second amended Rule 60(b) motion, because, having failed to appeal the initial order expanding the injunction against him, and having failed to appeal the subsequent order denying his first Rule 60(b) motion, the plaintiff waived the right to challenge those orders). "[A] litigant who fails to appeal an initial Rule 60(b) motion and then raises a new Rule 60(b) motion, may be held to have waived his right' to file the later motion * * *." Id .; see also Selletti v. Carey, 177 F.R.D. 189, 192 (S.D.N.Y. 1998), appeal dismissed as moot 173 F.3d 104, 113 (2d Cir. 1999) ("A trial court's ruling on a Rule 60(b) motion is appealable and a party who is aggrieved by an adverse ruling on a Rule 60(b) motion must appeal it or waive any complaints about the ruling.'" (quoting 12 James W. Moore, et al., Federal Practice § 60.69 (3d ed. 1997) (quoted in Beller & Keller v. Tyler, 120 F.3d 21, 24 (2d Cir. 1997)))). "[A] Rule 60(b) motion may not be used to circumvent the time limits for appeal." Selletti, 177 F.R.D. at 192; see also Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) ("In no circumstances, * * *, may a party use a Rule 60(b) motion as a substitute for an appeal it failed to take in a timely fashion."); Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (holding that a Rule 60(b) motion "may not be used as a substitute for a timely appeal.") Accordingly, plaintiffs may only challenge the bases for the denial of their original Rule 60(b) motion, not the merits of the underlying judgment or the November 30, 2011 order. Thus, the branch of plaintiffs' motion seek "further relief' from the November 30, 2011 order and final judgment is denied.
"The decision whether to grant a party's Rule 60(b) motion is committed to the sound discretion of the district court * * *." Stevens, 676 F.3d at 67 (internal quotations and citation omitted). "Rule 60(b) provides a mechanism for extraordinary judicial relief available only if the moving party demonstrates exceptional circumstances, " Motorola Credit Corn. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009) (quotations, alterations and citations omitted); see also Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008); Employers Mut. Cas. Co. v. Key Pharmaceuticals, 75 F.3d 815, 824-25 (2d Cir. 1996), and, as such, "[r]elief under Rule 60(b) is generally not favored * * *." Insurance Company of North America v. Public Service Mutual Insurance Company, 609 F.3d 122, 131 (2d Cir. 2010) (quotations and citation omitted); see also Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004).
In order to be entitled to relief under Rule 60(b), the evidence in support of the motion must be "highly convincing, " the moving party must "show good cause for the failure to act sooner, " and there must not be any "undue hardship * * imposed on other parties." Kotlicky v. United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987); see also Feldman Law Group P.C. v. Liberty Mut. Ins. Co., 819 F.Supp.2d 247, 266-67 (S.D.N.Y. 2011), afr'd, 476 Fed.Appx. 913 (2d Cir. Apr. 18, 2012). The burden of demonstrating entitlement to relief under Rule 60(b) is on the moving party, see Marrero Pichardo, 374 F.3d at 55; United States v. International Brotherhood of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001), and "[t]he strict evidentiary requirements [of Rule 60(b)] apply as well to pro se litigants." Jedrejcic v. Croatian Olympic Committee, 190 F.R.D. 60, 77 (E.D.N.Y. 1999); see also Williams v. New York City Department of Corrections, 219 F.R.D. 78, 84 (S.D.N.Y. 2003) ("[P]ro se litigants are not excused from the requirement that they produce highly convincing evidence to support a Rule 60(b) motion." (quotations, alterations and citations omitted)).
A. Rule 12(b)(1)
Although plaintiffs do not specifically seek relief pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure, Rule 60(b)(1) is the vehicle for correcting claimed legal errors by the court. See United Airlines. Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009); In re 310 Associates, 346 F.3d 31, 35 (2d Cir. 2003). Thus, plaintiffs' claims that the September 28, 2012 order is unconstitutional and in violation of both New York and Delaware state law must be construed as seeking relief under Rule 60(b)(1).
A motion seeking relief under Rule 60(b)(1) is not permitted "past the deadline for filing a notice of appeal * * *." In re 310 Associates, 346 F.3d at 35; see also Colucci v. Beth Israel Medical Center, 531 Fed.Appx. 118, 120 n. 3 (2d Cir. Aug. 27, 2013) (summary order); International Controls Corn. v. Vesco, 556 F.2d 665, 670 (2d Cir. 1977). "One of the reasons for not permitting Rule 60(b)(1) motions to correct court errors after the deadline for appeal is to prevent the rule from ...