20-3031-cv (L) 

Colella et al. v. The Republic of Argentina

 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER 

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

14th day of December, two thousand twenty-one.

PRESENT: GUIDO CALABRESI,

 DENNY CHIN,

 WILLIAM J. NARDINI,

Circuit Judges.

_______________________________________

MICHELE COLELLA, DENISE DUSSAULT,

 Plaintiffs-Appellants,

MARCELO RUBEN RIGUEIRO, SILVIA MABEL 

SACCONE, ALFREDO ENRIQUE ZUCCHINI, NESTOR DE 

NICOLA, GRACIELA MARTA BERRETTI, PAULA DE 

NICOLA, ANDREA DE NICOLA, SANTIAGO ROCCA, 

ANA MARIA SALDANA, ENRIQUE JORGE ROCCA, 

ANGELO COTTONI, BRUNO MATTIOLI, INES ROTA, 

ALESSANDRA REGOLI, SILVIA REGOLI, MATTEO 

ZANICHELLI, GIOVANNI ZANCHELLI, VITO 

ZANCANER, JOSEF SCHWALD, SUSAN LEONOR GATTI, 

MARTA BEATRIZ GATTI, LUIS ANGEL GATTI,

 Plaintiffs,

v. Nos. 20-3031-cv, 
2

20-3094-cv

THE REPUBLIC OF ARGENTINA, 

Defendant-Appellee*

_______________________________________

For Plaintiffs-Appellants: ZACHARY GREG MEYER, Sutton Sachs 

Meyer PLLC, New York, NY

For Defendant-Appellee: RAHUL MUKHI (Carmine D. Boccuzzi, Jr., 

Rathna J. Ramamurthi, and Morgan A. 

Miller on the brief), Cleary Gottlieb Steen & 

Hamilton LLP, New York, NY

On appeal from the United States District Court for the Southern District of New York

(Loretta A. Preska, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the order of the district court entered on August 13, 2020, is AFFIRMED. 

This consolidated appeal stems from two related lawsuits: (1) Michele Colella and Denise 

Dussault v. The Republic of Argentina, 04-cv-2710 (the “Colella case”); and (2) Marcelo Ruben 

Rigueiro, et al. v. The Republic of Argentina, 05-cv-3089 (the “Rigueiro case”). PlaintiffsAppellants Michele Colella and Denise Dussault (“Plaintiffs”) sought recovery of funds from the 

Republic of Argentina based on their purported ownership of $3.7 million of defaulted bond ISIN 

US040114AN02 (the “AN02 Bond”) and $850,000 of another issue of bonds in the Colella case, 

and $1.3 million of the AN02 Bond in the Rigueiro case. The district court entered judgment in 

favor of Plaintiffs in each case in 2006 and 2007. Plaintiffs never collected on either judgment, 

despite entering into a 2016 agreement with the Republic in the Colella case for $7,610,658,

contingent upon delivery of the Colella bonds. 

On August 13, 2020, the district court granted the Republic’s motion to vacate the 

judgments in the Colella and Rigueiro cases. Invoking Federal Rule of Civil Procedure 60(b)(6)

and the court’s inherent authority, the court held that Plaintiffs had obtained their judgments 

through fraud upon the court and dismissed both cases with prejudice. Plaintiffs now appeal from 

that decision. We assume the reader’s familiarity with the record.

We review for abuse of discretion a district court’s determination that conduct constitutes 

fraud upon the court, Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 459 (2d Cir. 

* The Clerk of the Court is directed to amend the caption as indicated above.
3

1994), and that a complaint should be dismissed as a sanction, Enmon v. Prospect Cap. Corp., 675 

F.3d 138, 143 (2d Cir. 2012). Pursuant to Rule 60(b) and its inherent authority, a court may set 

aside a judgment for fraud upon the court when such fraud is established by clear and convincing 

evidence. King v. First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002); see also Fed. R. 

Civ. P. 60(d)(3); Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. 238, 248–49 (1944).

Though dismissal is a “harsh sanction,” In re Harris, 464 F.3d 263, 272 (2d Cir. 2006), it can be 

appropriate in the right circumstances, and a court has inherent power to sanction parties in order 

to “manage [the court’s] affairs so as to achieve the orderly and expeditious disposition of 

cases,” Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir. 2000) (internal quotation marks 

omitted). 

Here, the district court did not abuse its discretion in concluding, based on clear and 

convincing evidence, that Plaintiffs’ conduct constituted fraud on the court. The district court 

relied primarily on documentation from two Italian banks, Banca di Credito Cooperativo Terra di

Lavoro (“BCC-Lavoro”) and UniCredit S.p.A., which showed that the bank records Plaintiffs 

submitted to the district court in 2019 to substantiate their bond claims in the Colella case were

inauthentic. The questioned records bore facial indicia of inconsistency with genuine bank 

records, and Plaintiffs produced no evidence that cast doubt on the court’s conclusion. Moreover,

the district court reasonably relied on additional facts supporting its finding of fraud: (1) Plaintiffs 

had submitted another suspect document purporting to come from BCC-Lavoro; (2) the Republic 

flagged potentially fraudulent conduct during the lawsuits; (3) Plaintiffs gave shifting explanations 

for failing to deliver the bonds they purported to own in the Colella case, as required to collect 

under their settlement agreement; and (4) a party in a related case—Antonio Forgione et al. v. The 

Republic of Argentina, 06-cv-15171 (the “Forgione case”)1

—submitted a doctored version of 

Plaintiffs’ bank statement in the Rigueiro case that appeared to constitute an attempt at duplicative 

recovery on the same bond claim. See Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118–19 (1st 

Cir. 1989).

As a remedial matter, the district court did not abuse its discretion in concluding that 

“vacatur of the judgments and dismissal [with prejudice] of both the Colella and Rigueiro cases 

are the only sufficient sanctions the Court can impose” because Plaintiffs’ “conduct presents 

extraordinary circumstances, and failure to grant relief would work an extreme hardship on the 

Republic.” Special App’x at 110–11, 111 n.10 (italics added) (internal quotation marks omitted). 

The district court reasonably concluded that dismissal of the Colella case was warranted because 

of, among other reasons, Plaintiffs’ “intentional bad faith” in repeatedly submitting “falsified 

evidence” to the court and the resulting prejudice to the Republic. Special App’x at 105–06

(internal quotation marks omitted). As to the Rigueiro case, the district court did not abuse its 

discretion in determining that vacatur and dismissal with prejudice was warranted because

Plaintiffs’ misconduct in the Colella case significantly disrupted the Rigueiro case, the fraudulent 

1 The district court dismissed the Forgione case for failure to prosecute under Fed. R. Civ. P. 41(b). The 

consolidated appeal now before us does not include the Forgione case.
4

Forgione documents matched those submitted by the Plaintiffs in the Rigueiro case, specific and 

general deterrence were required to “protect the sanctity of the judicial process,” and vacatur and 

dismissal in the Colella case alone was insufficient because it would create a “perverse incentive” 

to foreclose only Plaintiffs’ ability to collect on bonds they do not own. Special App’x at 106–10

(internal quotation marks omitted).

Finally, we reject Plaintiffs’ argument that before dismissing with prejudice, the district 

court was required to make findings beyond a reasonable doubt and provide other criminal 

procedural protections. Those heightened safeguards apply if a district court imposes punitive 

monetary sanctions, see Va. Props., LLC v. T-Mobile Ne. LLC, 865 F.3d 110, 114 (2d Cir. 2017), 

but not if the sanction is dismissal with prejudice, Mitchell v. Lyons Pro. Servs., Inc., 708 F.3d 

463, 467 (2d Cir. 2013); see also Liebowitz v. Bandshell Artist Mgmt., 6 F.4th 267, 292 (2d Cir. 

2021). Here, the district court provided Plaintiffs sufficient procedural protections, including 

notice of the sanctionable conduct, the standard by which it would be judged (i.e., clear and 

convincing evidence), and an opportunity to be heard, before imposing judgment. See Mitchell, 

708 F.3d at 467.

We have considered Plaintiffs’ remaining arguments and conclude that they are without 

merit. For the foregoing reasons, the order of the district court is AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court