Babigian v. Ass'n of the Bar of New York

144 F.R.D. 30, 1992 U.S. Dist. LEXIS 9990, 1992 WL 231001
CourtDistrict Court, S.D. New York
DecidedJuly 6, 1992
DocketNo. 88 Civ. 1123 (JMC)
StatusPublished
Cited by7 cases

This text of 144 F.R.D. 30 (Babigian v. Ass'n of the Bar of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Babigian v. Ass'n of the Bar of New York, 144 F.R.D. 30, 1992 U.S. Dist. LEXIS 9990, 1992 WL 231001 (S.D.N.Y. 1992).

Opinion

MEMORANDUM AND ORDER

CANNELLA, District Judge.

Plaintiff’s motion for relief from final judgment under Rule 60(b) of the Federal Rules of Civil Procedure is denied. Fed.R.Civ.P. 60(b). Defendants’ motions for reasonable attorney’s fees and/or costs is denied. Fed.R.Civ.P. 11.

BACKGROUND

On January 11, 1990, the Court granted defendants’ motions to dismiss plaintiff’s complaint and supplemental complaint. See Babigian v. Association of the Bar of the City of New York, 744 F.Supp. 47 (S.D.N.Y.), aff'd, 912 F.2d 462 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990). A judgment was [32]*32then issued dismissing the complaints. See Judgment, 744 F.Supp. 47 (S.D.N.Y.1990). Complete familiarity with the underlying facts is assumed and will only be repeated as is necessary.

The Court dismissed plaintiffs federal and pendent state law claims on the ground that they were barred by the applicable statute of limitations. See Babigian, 744 F.Supp. at 52. In addition, the Court observed that there were several alternate theories which also warranted dismissal of plaintiffs claims. See id. at 52 n. 3. Plaintiff now moves under Rule 60(b) of the Federal Rules of Civil Procedure to set aside the judgment dismissing the complaint and supplemental complaint. Defendants seek attorney’s fees and/or costs in connection with the motion.

DISCUSSION

Rule 60(b)(3) of the Federal Rules of Civil Procedure authorizes the court to relieve a party from a final judgment due to “fraud, ... misrepresentation, or other misconduct of an adverse party.” Fed.R.Civ.P. 60(b). Rule 60(b)(3) requires the moving party to establish that “a judgment was obtained by fraud, misrepresentation, or misconduct, and that the conduct complained of prevented the moving party from fully and fairly presenting the case.” In re M/V Peacock on Complaint of Edwards, 809 F.2d 1403, 1405, (9th Cir.1987); accord Ervin v. Wilkinson, 701 F.2d 59, 61 (7th Cir.1983). The rule is “aimed at judgments which were unfairly obtained, not at those which are factually incorrect.” In re M/V Peacock, 809 F.2d at 1405. Thus, the rule cannot be used to relitigate the merits of the case. See Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir.1989). Finally, the moving party has the burden of establishing material misrepresentations by clear and convincing evidence. See id.

Plaintiff seeks to set aside the judgment based on the alleged fraud and misconduct of the defendants, this Court and the Second Circuit panel which affirmed the order dismissing plaintiff’s complaints. First, plaintiff contends that defendant Florida Bar and the Bar Association defendants 1 engaged in fraud, because their motion papers for dismissal of the complaints raised arguments that were without merit and they misrepresented plaintiff’s arguments. Plaintiff’s mere disagreement with his adversaries’ legal arguments is plainly insufficient to justify even an inference of fraud. Moreover, plaintiff does not claim that defendants made any misrepresentations that prohibited plaintiff from presenting his arguments. Plaintiff had full opportunity to address defendants’ contentions in his opposition papers. Thus, these allegations of fraud are clearly insufficient to establish entitlement to relief under Rule 60(b).

Plaintiff next claims that the Court engaged in fraudulent conduct. First, plaintiff asserts that the Court wrongly “adopted” portions of defendants’ moving papers and that the Court wrongly dismissed the complaints. A finding by the Court in defendants’ favor fails to suggest that the Court engaged in fraud or misconduct. Plaintiff's argument is merely an inappropriate attempt to reargue the merits of the underlying action.

Plaintiff also alleges that the Court was biased because the Court was a former law partner and friend of the late Judge Paul Rao, Sr., who is the father of defendant Nina Cameron. This contention was raised and rejected by both the Second Circuit and the Supreme Court. In any event, the allegation is insufficient to raise even a hint of partiality or bias. There is [33]*33no basis for disqualification simply “because defendants are related to members of ... [the court’s] former law firms.” Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1167 (5th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 88 (1983). In this situation, “the connection [is] ... too remote to justify recusal.” Id.

Next, plaintiff claims that the Second Circuit panel which affirmed the order dismissing the complaints acted in bad faith. In support of his assertion, plaintiff alleges that the panel was annoyed and angry during oral argument. Plaintiff also relies on the panel’s issuance of its decision a day after oral argument. Contrary to plaintiff’s contention, these allegations fail to establish fraud or misconduct. In any event, it is wholly improper for plaintiff to seek relief from the Second Circuit’s decision before this Court. Moreover, plaintiff previously raised this argument in his petition for a writ of certiorari before the Supreme Court, which was denied.

Finally, relief under Rule 60(b) is “not to be granted unless the movant can demonstrate a meritorious claim.” Lepkowski v. United States Dep’t of Treasury, 804 F.2d 1310, 1314 (D.C.Cir.1986). Since plaintiff’s claims are barred by the applicable statute of limitations, relief under Rule 60(b) must be denied. See id.

In sum, plaintiff’s charges of fraud completely fail to indicate that he was prevented by fraud or misconduct from fully and fairly presenting his claims. Plaintiff’s additional arguments concerning the merits of his underlying claims are plainly inappropriate, as a motion under Rule 60(b)(3) cannot be used to relitigate the merits of the action. Accordingly, plaintiff’s motion to set aside the judgment dismissing his claims is denied. Fed.R.Civ.P. 60(b).

The Florida Bar seeks attorney’s fees in opposing plaintiff’s motion and the Bar Association defendants seek to recover their costs in connection with the motion. Rule 11

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Bluebook (online)
144 F.R.D. 30, 1992 U.S. Dist. LEXIS 9990, 1992 WL 231001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babigian-v-assn-of-the-bar-of-new-york-nysd-1992.