Opinion
98 Civ. 1326 (LBS) (JCF).
March 10, 2004
REPORT AND RECOMMENDATION
TO THE HONORABLE LEONARD B. SAND, U.S.D.J.:
The plaintiff, Jacqueline Mills, has moved pursuant to Rule 60 of the Federal Rules of Civil Procedure for relief from the judgment dismissing the complaint in this action. For the following reasons, I recommend that the motion be denied.
Background
The plaintiff brought this action under the False Claims Act, 31 U.S.C. § 3729-3733, asserting claims against Sullivan County and its Department of Social Services (collectively, the "Municipal Defendants") and New York State Electric and Gas Corporation ("NYSEG"). In a Report and Recommendation dated June 21, 2002 (the "2002 RR"), I recommended that all of Ms. Mills' claims against the Municipal Defendants be dismissed based on principles of issue and claim preclusion and for failure to state a claim. The Honorable Leonard B. Sand, U.S.D.J., adopted that recommendation on August 14, 2002. On August 29, 2002, the plaintiff moved for reconsideration, and on September 17, Judge Sand granted reconsideration but adhered to his prior determination. On April 4, 2003, I issued a second Report and Recommendation, recommending that the claims against NYSEG be dismissed based on claim preclusion because they could have been raised in a prior action by Ms. Mills against NYSEG but were not. Judge Sand adopted that recommendation on June 3, 2003, and on July 1, he declined to alter his decision after reconsidering it at the plaintiff's request. Judgment was entered dismissing the case.
Ms. Mills then submitted the instant motion dated August 22, 2003, requesting relief from the judgment and also seeking leave to serve and file an amended complaint. The apparent basis for the plaintiff's motion is that she has come into possession of new evidence consisting of proof that the Municipal Defendants entered into a lease for which they overpaid, thus wasting federal funds. (Affirmation of Jacqueline Mills in Support of Rule 60 Motion dated Aug. 22, 2003 ("Mills Aff."), ¶¶ 10-13). The defendants have opposed the motion.
Discussion
Because the plaintiff seeks relief from the judgment on the basis of new evidence, her motion must be analyzed pursuant to Rule 60(b)(2). Under that rule, she "has an onerous standard to meet":
The movant must demonstrate that (1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching.United States v. International Brotherhood of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (alteration and citations omitted). Here, at the very least, Ms. Mills cannot meet the second requirement because the information she has proffered is simply not "new."See United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (Rule 60(b)(2) motion must include "evidence that is truly newly discovered or . . . could not have been found by due diligence") (quotations and citation omitted).
The lease agreement to which the plaintiff refers was, according to her own pleading, entered into in June 1994, nearly a decade ago. (Proposed Amended Complaint ("Am. Compl.") attached as Exh. A to Mills Aff., ¶¶ 30, 35). It provided for lease payments (which were allegedly wasteful of federal funds) from October 1994 through October 1997. (Am. Compl., ¶ 50). Yet the plaintiff has suggested no reason why, prior to dismissal of her action, she was unable to obtain this information about a public contract. Indeed, the fact that she raised this very claim in the Supplemental Complaint that she filed in November 2000 suggests that she was well aware of the contract. (Supplemental Complaint, attached as Exh. B to Affirmation in Opposition of Sara T. Luca dated Jan. 15, 2004, ¶¶ 2, 7-8; 2002 RR at 25). A motion for relief from a judgment is not a vehicle for providing details previously available about claims properly dismissed. There is therefore no basis for vacating the judgment.
Since there is no viable complaint currently before the Court, there is no pleading for the plaintiff to amend, and her application to serve and file an amended complaint should likewise be denied.
Conclusion
For the reasons set forth above, plaintiff's motion for relief from the judgment dismissing the complaint and for leave to serve and file an amended complaint should be denied in all respects. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Leonard B. Sand, Room 1650, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.