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21-959-cv

Joseph v. Springer Nature Am. Inc.

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 21st day of December, two thousand twenty-one.

PRESENT: JOSÉ A. CABRANES,

RAYMOND J. LOHIER, JR.,

EUNICE C. LEE,

Circuit Judges.

_____________________________________

RHAWN JOSEPH,

Plaintiff-Appellant,

v. 21-959-cv

SPRINGER NATURE AMERICA INC. and 

SPRINGER NATURE ACADEMIC 

PUBLISHING LLC,

Defendants-Appellees,

SPRINGER NATURE, SPRINGER, a 

subsidiary of Springer Nature, ELIAS 

BRINKS, JEREMY MOULD, DOES 1-10, 

sued in their individual capacities and as coconspirators, SPRINGER SCIENCE + 

BUSINESS MEDIA LLC, SPRINGER 

VERTAG NEW YORK LLC,
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Defendants.

*

_____________________________________

FOR PLAINTIFF-APPELLANT: Rhawn Joseph, pro se, San Jose, CA.

FOR DEFENDANTS-APPELLEES: Jeremy Chase and Robert D. Balin, Davis 

Wright Tremaine LLP, New York, NY.

Appeal from an order, entered April 12, 2021, by the United States District Court for the

Southern District of New York (John P. Cronan, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the April 12, 2021 order of the District Court be and hereby 

is AFFIRMED.

Plaintiff-Appellant Rhawn Joseph, proceeding without counsel, appeals from an order of the 

District Court dismissing his Second Amended Complaint after Defendants-Appellees Springer 

Nature America, Inc. and Springer Nature Academic Publishing LLC (the “Appearing Defendants”) 

filed a motion to dismiss Joseph’s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil 

Procedure.1

 As alleged, an academic journal called Astrophysics and Space Science — owned by the 

Appearing Defendants — first published and then retracted an article written by Joseph concerning 

the possibility of life on Venus. Joseph also alleges that he submitted a second article discussing the 

possibility of life on Mars to the journal, but that after the journal expressed concerns, he withdrew 

that article from consideration. This suit followed, in which Joseph raised several claims including 

copyright infringement, breach of contract, tortious interference with contract, libel, fraud, 

negligence, and intentional infliction of emotional distress. We assume the parties’ familiarity with 

the underlying facts, the procedural history of the case, and the issues on appeal. Finding no error in 

the District Court’s careful consideration of Joseph’s claims, we decline to disturb its order. 

We review a district court’s dismissal of a complaint under Rule 12(b)(6) de novo. See Com.

Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 380 (2d Cir. 2001). “To survive a motion 

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant is liable for 

* The Clerk of Court is directed to amend the caption of this case as set forth above.

1 The remaining Defendants (the “Non-Appearing Defendants”) have not appeared before 

the District Court or this Court. 
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the misconduct alleged.” Id. “In addressing the sufficiency of a complaint we accept as true all 

factual allegations and draw from them all reasonable inferences; but we are not required to credit 

conclusory allegations or legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 

F.3d 82, 94 (2d Cir. 2013).

The District Court dismissed each of Joseph’s claims against the Appearing Defendants and 

sua sponte dismissed his claims against the Non-Appearing Defendants as frivolous. Joseph v. Springer 

Nature, No. 20-CV-4672 (JPC), 2021 WL 1372952, at *9 (S.D.N.Y. Apr. 12, 2021). It dismissed all 

the claims with prejudice, with one exception: it dismissed Joseph’s fraud claim based on the theory 

that Defendants allegedly failed to refund Joseph approximately $3,200 without prejudice to being 

refiled in state court.2 Id. 

Joseph now argues that the District Court’s dismissals were erroneous as to each of his 

claims and asks that we reverse the District Court’s order in its entirety. Upon review of the record 

and relevant law, we conclude that the District Court’s dismissal of each claim was proper, 

substantially for the reasons stated in its thorough April 12, 2021 opinion. We therefore find no 

need to recite the relevant elements of each claim or to repeat how Joseph’s allegations fail to 

plausibly state facts sufficient to state each claim. 

Joseph further argues on appeal that we should remand to permit him to amend his 

complaint for a third time — a request that the District Court rejected. While a pro se plaintiff 

should be afforded leave to amend following dismissal “when a liberal reading of the complaint 

gives any indication that a valid claim might be stated,” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 

2000) (internal quotation marks omitted), we conclude — as the District Court did — that 

amendment would be futile. The “problem[s] with [Joseph’s] causes of action [are] substantive; 

better pleading will not cure [them].” Id. Because Joseph has already had two chances to amend his 

complaint and the substantive problems with it remain, we affirm the District Court’s decision to 

deny Joseph’s motion to amend his complaint a third time.

Finally, we address two motions Joseph has filed on appeal. First, Joseph moves to 

supplement the record pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure with 

evidence that the licensing agreement was “fake.” ECF No. 68, at 1-2. Rule 10(e) allows a party to 

supplement the record only when the party omitted material evidence “by error or accident,” Fed. R. 

App. P. 10(e)(2), and we have made clear that “Rule 10(e) is not a device for presenting evidence to 

this Court that was not before the trial judge,” Natofsky v. City of New York, 921 F.3d 337, 344 (2d 

2 The District Court declined to reach the merits of this fraud claim, instead noting that the 

amount in controversy fell far below the jurisdictional threshold for diversity jurisdiction, see 28 

U.S.C. § 1332(a), and therefore declined to exercise jurisdiction over the claim.
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Cir. 2019) (internal quotation marks omitted). Joseph has not adequately explained why the 

omission of this evidence — which includes screenshots of the Defendants’ website and Google 

search results about retractions and licenses — before the District Court was by error or accident. 

See Leibowitz v. Cornell Univ., 445 F.3d 586, 592 n.4 (2d Cir. 2006). Accordingly, we decline to depart 

from our general rule that “federal appellate courts will not consider . . . evidence which [is] not part 

of the trial record,” Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975), and therefore 

deny Joseph’s motion to supplement. We similarly decline to take judicial notice of the evidence

under Federal Rule of Evidence 201.

Second, Joseph moves to set aside the judgment pursuant to Federal Rule of Civil Procedure 

60(d)(3), alleging that the Defendants are committing “[f]raud on the Court” by submitting copies of 

agreements that Joseph claims are “fake and fraudulent.” ECF No. 70, at 1-2. A Rule 60 motion 

seeking relief from a judgment alleged to have been obtained by fraud should be brought before the 

trial court in the first instance. See Torres v. United States, 833 F.3d 164, 165 (2d Cir. 2016) (explaining 

that the purpose of Rule 60(d) is to “allow district courts, in appropriate circumstances, to grant 

relief from a judgment or final order”).

CONCLUSION

We have considered all of Joseph’s remaining arguments and find them to be without merit. 

For the foregoing reasons, therefore, we AFFIRM the April 12, 2021 order of the District Court

and DENY Joseph’s September 18, 2021 motion to supplement the record and his September 20, 

2021 motion to set aside the judgment. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk