16

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‐ cv

Esposito v. State of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

ʺ SUMMARY ORDER ʺ ). 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 20 th day of June, two thousand seventeen.

PRESENT: RALPH K. WINTER,

GUIDO CALABRESI,

DENNY CHIN,

Circuit Judges.

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LUISA C. ESPOSITO,

Plaintiff

‐ Appellant

,

v. 16

‐ 1922

‐ cv

STATE OF NEW YORK, THE OFFICE OF

COURT ADMINISTRATION OF THE

UNIFIED COURT SYSTEM OF THE STATE

OF NEW YORK, THOMAS J. CAHILL, in his

official capacity, in his individual capacity,

FRED DECICCO, NAOMI GOLDSTEIN, in her

official capacity, in her individual capacity,

ALBERT S. BLINDER, in his official capacity,

in his individual capacity, Harvey Gladstein &2 Partners LLC, f/k/a Gladstein & Isaac, ALLEN

H. ISAAC, individually, as a partner of Harvey

Gladstein & Partners LLC, f/k/a Gladstein &

Isaac, CITY OF NEW YORK, RAYMOND

KELLY, ROBERT ARBUISO, in his official and

individual capacity, ADAM LAMBOY, in his

official and individual capacity, ARTHUR

POLLACK, CONRAD POLLACK, individually

and as a partner of Pollack, Pollack, Isaac &

DeCicco, LLP, BRIAN J. ISAAC, individually

and as a partner of Pollack, Pollack, Isaac &

DeCicco, LLP, POLLACK, POLLACK, ISAAC

& DECICCO, LLP, GLADSTEIN & ISAAC,

Jane and John Does,

Defendants

‐ Appellees

.

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FOR PLAINTIFF

‐ APPELLANT: LUISA C. ESPOSITO, pro se

, West Hempstead,

New York.

FOR DEFENDANT

‐ APPELLEES

STATE OF NEW YORK, OFFICE OF

COURT ADMINISTRATION OF THE

UNIFIED COURT SYSTEM OF THE

STATE OF NEW YORK, THOMAS J.

CAHILL, NAOMI GOLDSTEIN, AND

ALBERT S. BLINDER: DAVID LAWRENCE III, Assistant Solicitor

General, Barbara D. Underwood, Solicitor

General, Steven C. Wu, Deputy Solicitor

General, for Eric T. Schneiderman, Attorney

General of the State of New York, New York,

New York.

FOR DEFENDANT

‐ APPELLEE

HARVEY GLADSTEIN & PARTNERS

LLC: JONATHAN L. SHAPIRO, Traycee E. Klein,

Epstein Becker & Green, P.C., New York, New

York.

FOR DEFENDANT

‐ APPELLEE

ALLEN H. ISAAC: Kuuku Minnah

‐ Donkoh, Gordon & Rees LLP,

New York, New York.

FOR DEFENDANT

‐ APPELLEES CITY

OF NEW YORK, RAYMOND KELLY,

ROBERT ARBUISO, ADAM

LAMBOY: Devin Slack, Antonella Karlin, Assistant

Corporation Counsels, for Zachary W. Carter,

Corporation Counsel of the City of New York,

New York, New York.3 FOR DEFENDANT

‐ APPELLEES

POLLACK, POLLACK, ISAAC &

DECECCO, LLP, ARTHUR

POLLACK, CONRAD POLLACK,

BRIAN J. ISAAC: Erin A. O ʹ Leary, Morgan Melhuish Abrutyn,

New York, New York.

Appeal from orders of the United States District Court for the Southern District

of New York (Cote, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the orders of the district court are AFFIRMED

.

Luisa C. Esposito, pro se

, appeals from the district court ʹ s May 12, 2016 order,

denying as untimely her third motion pursuant to Federal Rule of Civil Procedure 60 to

reopen her 2008 case (the ʺ Rule 60 motion ʺ ) in which she asserted 42 U.S.C. § 1983 and

state law claims based on allegations that her former attorney, Allen H. Isaac, sexually

assaulted and harassed her and that others conspired to protect him from civil

penalties. She also appeals from the district court ʹ s June 9, 2016 order, denying her

motion for reconsideration of the denial of her Rule 60 motion. We assume the parties ʹ

familiarity with the underlying facts, the procedural history, and the issues on appeal.

In August 2008, the district court dismissed Esposito ʹ s underlying complaint on

the grounds that, inter alia

, her § 1983 claims were not cognizable in federal court. We

affirmed that dismissal on December 8, 2009. See Esposito v. New York

, 355 F. App ʹ x 511

(2d Cir. 2009) (summary order). Esposito filed motions to reopen her case in 2010 and

2012, and both motions were denied. Esposito appealed the denial of her 2010 motion4 and we affirmed. Esposito v. New York

, 453 F. App ʹ x 37 (2d Cir. 2011) (summary order).

She did not appeal the denial of the 2012 motion. In the Rule 60 motion that is the

subject of this appeal, Esposito averred that she obtained newly discovered evidence

that corroborated the factual allegations underlying her complaint and that certain

defendants had perpetrated a fraud on the district court. The district court denied

Esposito ʹ s Rule 60 motion and a subsequent motion to reconsider on grounds that

Esposito ʹ s request for relief was untimely.

We review the denial of a Rule 60 motion and a motion to reconsider for abuse of

discretion. Simon v. City of New York

, 727 F.3d 167, 171 (2d Cir. 2013); Stevens v. Miller

,

676 F.3d 62, 67 (2d Cir. 2012). A district court abuses its discretion ʺ when (1) its decision

rests on an error of law (such as application of the wrong legal principle) or a clearly

erroneous factual finding, or (2) its decision

‐‐ though not necessarily the product of a

legal error or a clearly erroneous factual finding

‐‐ cannot be located within the range of

permissible decisions. ʺ Zervos v. Verizon N.Y., Inc.

, 252 F.3d 163, 169 (2d Cir. 2001).

We identify no abuse of discretion here. The district court correctly declined to

treat Esposito ʹ s Rule 60 motion as one seeking relief for fraud on the court under Rule

60(d)(3), which is not subject to a time limitation, because the motion largely described

ʺ newly discovered evidence, ʺ and, in any event, the alleged misconduct on the part of

certain defendants did not constitute ʺ fraud on the court. ʺ See Hadges v. Yonkers Racing

Corp.

, 48 F.3d 1320, 1325 (2d Cir. 1995) (noting that fraud on the court ʺ is limited to fraud5 which seriously affects the integrity of the normal process of adjudication ʺ ); Gleason v.

Jandrucko

, 860 F.2d 556, 559

‐ 60 (2d Cir. 1988) (noting that even ʺ [a]fter

‐ discovered

evidence of alleged perjury by a witness ʺ and ʺ allegations of nondisclosure during

pretrial discovery ʺ are insufficient to establish fraud on the court). 1 Moreover, because

Esposito ʹ s Rule 60 motion was based on newly discovered evidence, the district court

correctly treated it as one brought under Rule 60(b)(2), allowing relief from the judgment

based on newly discovered evidence, and not Rule 60(b)(6), allowing relief from the

judgment for ʺ any other reason that justifies relief. ʺ See United States v. Int ʹ l Bhd. of

Teamsters

, 247 F.3d 370, 391

‐ 92 (2d Cir. 2001) ( ʺ [I]f the reasons offered for relief from

judgment can be considered in one of the more specific clauses of Rule 60(b), such

reasons will not justify relief under Rule 60(b)(6). ʺ ). Accordingly, as the district court

concluded, Esposito ʹ s motion should have been brought within a year of the entry of

judgment. Fed. R. Civ. P. 60(c)(1)

. The motion, however, was filed more than seven

years after entry of the judgment in 2008, and was therefore untimely. For the same

reasons, the district court correctly denied Esposito ʹ s motion to reconsider.

. . .

We have considered Esposito ʹ s remaining arguments and conclude they are

without merit. As we advised Esposito at oral argument, the power of the federal

1 Esposito ʹ s argument on appeal that her motion should have been considered an

ʺ independent action ʺ under Rule 60(d)(1) is waived because she did not raise it in the district

court. See Universal Church v. Geltzer

, 463 F.3d 218, 228 (2d Cir. 2006).6 courts is limited and there is not a federal remedy for every wrong. Notwithstanding

the serious harm Esposito seems to have suffered, it appears that there is no federal

remedy to redress her injury. Furthermore, we note that this is Esposito ʹ s third appeal

and that she has unsuccessfully moved to reopen her case in the district court three

times. All of these efforts have been rejected. Yet, Esposito suggested at oral

argument that she will continue to file motions to reopen the case. If she does so

without a proper basis, the district court may wish to consider implementing a filing

restriction and advising Esposito that she may face sanctions if she continues to file

meritless motions.

Accordingly, we AFFIRM the orders of the district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk