Blinkoff v. City of Torrington

• Court: Court of Appeals for the Second Circuit
• Decided: February 14, 2025
• Docket: 23-717
• Status: Unpublished

Opinion

23-717-cv Blinkoff v. City of Torrington

23-717-cv Blinkoff v. City of Torrington

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 February, two thousand twenty-five.

PRESENT: DENNIS JACOBS, SUSAN L. CARNEY, MYRNA PÉREZ, Circuit Judges. _____________________________________

Holly Blinkoff,

Plaintiff-Appellant,

v. 23-717

City of Torrington, Planning and Zoning Commission, for the City of Torrington, Greg Mele, Gregory Perosino, Nicole Dorman, Dave Frascarelli, Defendants-Appellees. * _____________________________________

FOR PLAINTIFF-APPELLANT: HOLLY BLINKOFF, pro se, Torrington, CT.

FOR DEFENDANT-APPELLEE DORMAN: NICOLE DORMAN, pro se, Glastonbury, CT.

FOR THE CITY DEFENDANTS-APPELLEES 1: ANDREW GLASS (Dennis Durao, on the brief), Karsten & Tallberg, LLC, Rocky Hill, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Underhill, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED.

Holly Blinkoff appeals the district court’s dismissal of her suit to set aside

the final judgments of two prior actions. In 1997, Blinkoff sued the City of

Torrington Planning and Zoning Commission (the “Commission”) and several of

its members. She asserted, inter alia, an Equal Protection Clause claim, alleging

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. 1 The City Defendants-Appellees are City of Torrington; Planning and Zoning Commission, for the City of

Torrington; and three members of the Planning and Zoning Commission—Greg Mele, Gregory Perosino, and Dave Frascarelli—who are each sued in their official capacities. 2 that the defendants had discriminated against her on the basis of her sex and

religion in the permitting process for her gravel quarry. See Blinkoff v. Torrington

Planning, No. 3:97-cv-1345 (D. Conn.) (the “1997 Case”). In 2006, she claimed that

Defendant-Appellee Nicole Dorman, who was counsel for the City of Torrington

in the prior case, and other defendants had prevented material witness Ray

Carpentino from testifying in the 1997 Case and thereby committed fraud on the

court. See Blinkoff v. Dorman, No. 3:06-cv-607 (D. Conn.) (the “2006 Case”). The

defendants in both cases prevailed following trial. See Blinkoff v. Dorman, No. 3:06-

cv-607, 2007 WL 4373130, at * 1–2 (D. Conn. Dec. 12, 2007). We assume the parties’

familiarity with the remaining facts, the procedural history, and the issues on

appeal, which we recount only as necessary to explain our decision.

I. Blinkoff’s Equal Protection Claim

The district court dismissed Blinkoff’s Equal Protection claim, concluding

both that res judicata barred her from reasserting it and that no “new evidence”

exception to res judicata applied. This Court reviews the granting of a motion to

dismiss de novo. See Soules v. Conn. Dep’t of Emergency Servs. & Pub. Prot., 882 F.3d

52, 55 (2d Cir. 2018); City of Pontiac Gen. Employees’ Ret. Sys. v. MBIA, Inc., 637 F.3d

169, 173 (2d Cir. 2011).

3 The doctrine of res judicata, or claim preclusion, bars re-litigation if “(1) the

previous action involved an adjudication on the merits; (2) the previous action

involved the same adverse parties or those in privity with them; and (3) the claims

asserted in the subsequent action were, or could have been, raised in the prior

action.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108

(2d Cir. 2015) (alteration adopted and citation omitted). Whether a judgment in a

prior action will have preclusive effect “depends in part on whether the same

transaction or connected series of transactions is at issue, whether the same

evidence is needed to support both claims, and whether the facts essential to the

second were present in the first.” Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275,

285 (2d Cir. 2000) (citation omitted). Here, the jury verdict against Blinkoff suffices

as a judgment on the merits. This action and the 1997 Case involve the same

parties or their privies. Finally, this case again stems from Blinkoff’s grievances

regarding the selective enforcement of zoning laws against her and the denial of a

permit to operate a particular quarry. Res judicata thus bars this action unless an

exception applies.

Blinkoff asserts that the recent operation, without a permit, of a larger

quarry on her former land by another entity, O&G Industries (the “O&G Quarry”),

4 constitutes newly discovered evidence that the Defendants violated her Equal

Protection rights in their adjudication of her permit application and therefore

relieves her of the res judicata bar. We doubt that the evidence to which she points

provides a sound basis for relief from the claim-preclusive effects of the judgment

in the 1997 Case.

But even assuming that the operation of the O&G Quarry qualifies for an

exception to claim preclusion, see Saud v. Bank of New York, 929 F.2d 916, 920 (2d

Cir. 1991) (explaining that while “newly discovered evidence does not” ordinarily

“preclude the application of res judicata,” we recognize an exception “when the

evidence . . . could not have been discovered with due diligence”), the existence of

the O&G Quarry does not support Blinkoff’s Equal Protection claim on either a

class-of-one or selective enforcement theory.

A class-of-one claim requires an “extremely high degree of similarity”

between the plaintiff and “the persons to whom [she] compare[s]” herself. See

Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). A plaintiff must likewise

locate a comparator for any selective-enforcement claim, and that comparator

must be “similarly situated” to her “in all material respects.” See Hu v. City of New

York, 927 F.3d 81, 96 (2d Cir. 2019) (citation omitted). Here, however, over 20 years

5 have elapsed between Blinkoff’s alleged injury and her observation of the

operation of the O&G Quarry. As a result, Blinkoff and O&G Industries do not

exhibit an “extremely high” degree of similarity, see Clubside, 468 F.3d at 159, nor

are they “similarly situated in all material respects,” see Hu, 927 F.3d at 96. Blinkoff

may not revive the 1997 Case on the basis of these purported new facts, and her

complaint cannot survive a motion to dismiss for failure to state a claim.

II. Blinkoff’s Rule 60(d) Claim

Neither did the district court err in dismissing Blinkoff’s claim to set aside

the judgment in the 2006 Case under Rule 60(d)(3). Following a bench trial in that

previous action, the district court ruled that Blinkoff had not established that she

was entitled to relief from the judgment in the 1997 Case, because she had not

shown the requisite “fraud on the court” related to Carpentino’s unrealized

testimony in the 1997 Case. See Fed. R. Civ. P. 60(d)(3) (providing that a court may

set aside a previous judgment where there was “fraud on the court”). Blinkoff

now asserts that she is entitled to Rule 60(d)(3) relief from the 2006 Case’s

judgment. 2 She submitted to the district court excerpts of Dorman’s deposition

2 We concur with the district court that inquiry into fraud on the court in the 2006 Case subsumes the question of whether there was fraud on the court in the 1997 Case. See Supp. App’x 14 n.3. Because Blinkoff is not entitled to Rule 60(d)(3) relief from the judgment in the 2006 Case, the determination therein that 6 testimony in a related state-court proceeding from 2011, which she argues

contradicts Dorman’s statements at trial in the 2006 Case.

We review the denial of a Rule 60(d) claim for abuse of discretion. See Marco

Destin, Inc. v. Levy, 111 F.4th 214, 218 (2d Cir. 2024). Relief under Rule 60(d)(3) is

“limited to fraud which seriously affects the integrity of the normal process of

adjudication.” Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988). Fraud on the

court “embraces only that species of fraud which does or attempts to, defile the

court itself, or is a fraud perpetrated by officers of the court so that the judicial

machinery cannot perform in the usual manner its impartial task of adjudging

cases.” Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1325 (2d Cir. 1995) (internal

quotation marks and citation omitted). “[F]raud involving injury to a single

litigant” generally does not rise to the level of fraud upon the court itself. See

Gleason, 860 F.2d at 560.

Here, Blinkoff has not demonstrated that her purported evidence of fraud

on the court in the 2006 Case would entitle her to relief. 3 To begin, Blinkoff appears

there was no fraud on the court in the underlying, 1997 Case stands. See Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 663 (2d Cir. 1997). 3 Claims sounding in fraud must conform to the heightened pleading standard set forth in Federal Rule of

Civil Procedure 9(b), which requires that the plaintiff “state with particularity the circumstances constituting fraud or mistake.” This rule “requires that the plaintiff (1) detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements 7 at most to allege fraud by Dorman, not the remaining Defendants. And the district

court correctly noted that the operative complaint’s assertion that Dorman

“admitted” in the state-court deposition that “she told Mr. Carpentino on April

8th [of 2002] that he was not needed for the [duration of the] trial” mischaracterizes

the excerpt of the deposition that Blinkoff includes. See Supp. App’x 48–49 (Am.

Compl. ¶ 49). Dorman had stated only that she informed Carpentino that he need

not appear on April 8. See id. at 49 (Am. Compl. ¶ 49) (“Dorman: He was informed

on the eighth because he never showed up.” (emphasis altered)). This deposition

testimony accords with Dorman’s statements in the 2006 Case, where Dorman

similarly explained that she had simply told Carpentino on April 8 that the

proceedings were “not going to reach” him that day. See id. at 47 (Am. Compl. ¶

44).

The district court likewise determined that Dorman’s responses to Blinkoff’s

request for admissions in the state-court case were consistent with Dorman’s trial

testimony in the 2006 Case. In the state-court case, Blinkoff requested that Dorman

admit that she “did not have a conversation with” Carpentino on April 5, 10, or 12,

(or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 402–03 (2d Cir. 2015) (citation omitted). 8 2002, respectively. Id. at 77–78 (Am. Compl. Ex. D). Dorman responded that as of

2011, when she submitted her responses, she could not “admit or deny” having

conversations on those 2002 dates. Id. She also explained that the record in the

2006 Case reflected that she had spoken to Carpentino on at least some of the trial

days. Id. That is, Dorman’s responses acknowledged, and did not contradict, her

statements in the 2006 Case.

Finally, the district court correctly explained that Blinkoff misrepresented

Dorman’s state-court deposition testimony as “den[ying] [Dorman] ever testified

she spoke to Mr. Carpentino,” see id. at 49 (Am. Compl. ¶ 53) (internal quotation

marks omitted), when in the relevant excerpt, Dorman had only asserted that she

“did not say [she] spoke to [Carpentino]” on a particular two-minute call, see id. at

64 (Am. Compl. Ex. A).

In the absence of a meritorious Rule 60 claim, we find no error in the district

court’s dismissal of Blinkoff’s claim of fraud on the court in connection with the

2006 Case. See Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 663 (2d

Cir. 1997) (“Absent a viable direct attack” on a prior action, “res judicata precludes

the parties or their privies from relitigating issues that were or could have been

raised in that action.” (internal quotation marks and citation omitted)).

9 III. Pending Motions

Finally, we consider Blinkoff’s pending motions. We deny Blinkoff’s motion

requesting that this Court disregard Defendants-Appellees’ arguments on her

Equal Protection claim. That issue is properly before this Court because Blinkoff

herself has appealed the district court’s grant of Defendants’ motion to dismiss as

to that claim. We also deny Blinkoff’s motion to take judicial notice of an excerpt

from a newspaper article, excerpts from a contract filed in an unrelated state court

action, and various site plans for the property for which she sought a permit as

moot in light of our disposition of this appeal. See Fed. R. Evid. 201(b)(1). We deny

Appellees’ motion to file a response to Blinkoff’s motion to take judicial notice as

moot.

We have considered Appellant’s remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgment of the district court

and DENY Appellant’s pending motions.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court