Summary
denying motion for reconsideration where, inter alia, "request for reconsideration rests entirely on new theories, arguments, and facts that were not previously presented to the Court" and there was no argument "that the evidence contained in [the supplemental] affidavit was not previously available to [the party] or could not have been obtained through diligent efforts."
Summary of this case from Jackson v. GoordOpinion
99 Cr. 156 (JGK).
November 21, 2006
MEMORANDUM OPINION AND ORDER
Dr. Janette Torres has moved this Court to reconsider its Opinion and Order dated April 27, 2006, which denied Dr. Torres's motion to set aside the forfeiture of a bail bond in the amount of $750,000 for which she was a personal surety. Dr. Torres brings this motion pursuant to, first, Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3 and, second, Federal Rule of Civil Procedure 60(b).
I. A.
The standards governing motions to alter or amend a judgment under Rule 59(e) and for reconsideration or rearguement under Local Rule 6.3 are identical. See Cioce v. County of Westchester, No. 03 Civ. 6795, 2006 WL 692022, at *1 (S.D.N.Y. March 14, 2006); Word v. Croce, No. 00 Civ. 6496, 2001 WL 755394, at *2 (S.D.N.Y. July 5, 2001). In general, to prevail under these rules, the moving party must show that the Court overlooked the controlling decisions or factual matters that were put before the Court in the underlying motion. Nakano v. Jamie Sadock, Inc., No. 98 Civ. 0515, 2000 WL 1010825, at *1 (S.D.N.Y. July 20, 2000); Walsh v. McGee, 918 F. Supp. 107, 110 (S.D.N.Y. 1996). However, in addition, "[a] court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice." See Nnebe v. Daus, No. 06 Civ. 4991, 2006 WL 2309588, at *1 (S.D.N.Y. Aug. 7, 2006). New evidence, for these purposes, must be evidence that "could not have been found by due diligence." Word v. Croce, No. 01 Civ. 9614, 2004 WL 434038, at *4 (S.D.N.Y. March 9, 2004).
These rules are "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." See Walsh, 918 F. Supp. at 110. Strict application of these rules also "prevent[s] the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters." Polar Int'l Brokerage Corp. v. Reeve, 120 F. Supp. 2d 267, 268-69 (S.D.N.Y. 2000). The moving party may not use a motion for reconsideration to advance new facts, arguments, or theories that were available but not previously presented to the Court. See Graham v. Sullivan, No. 86 Civ. 163, 2002 WL 31175181, at *2 (S.D.N.Y. Sept. 23, 2002);Leonard v. Lowe's Home Ctrs., Inc., No. 00 Civ. 9585, at *2 (S.D.N.Y. April 12, 2002).
Motions under Rule 59(e) and Local Rule 6.3 must be brought no later than ten days after entry of the Court's judgment.
B.
Rule 60(b) allows the Court to "relieve a party . . . from a final judgment, order, or proceeding." Because the rule allows for extraordinary judicial relief, it may be invoked only on a showing of exceptional circumstances. See Fowler v. New York Transit Auth., No. 96 Civ. 6796, 2001 WL 83228, at *18 (S.D.N.Y. Jan. 31, 2001). The Court's task when confronted with such a motion is to "strike a balance between serving the ends of justice and preserving the finality of judgments." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). Evidence supporting a motion to vacate must be "highly convincing." See Kotlicky v. United States Fid. Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987);Freedom, N.Y., Inc. v. United States, 438 F. Supp. 2d 457, 462 (S.D.N.Y. 2006).
Rule 60(b), in subsections (1) through (5), designates five specific grounds for granting relief from judgment. The rule also includes a catchall provision, subsection (6), which allows relief for "any other reason justifying relief from the operation of the judgment." The catchall provision, Rule 60(b)(6), is "properly invoked where there are extraordinary circumstances or where the judgment may work an extreme and undue hardship."DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994). A motion pursuant to Rule 60(b)(6) must be made "within a reasonable time."
Finally, even where a movant can demonstrate that one of the enumerated grounds in Rule 60(b) applies, in order to prevail the movant must still demonstrate a strong case that the movant has a meritorious claim. See United States v. Cirami, 563 F.2d 26, 35 (2d Cir. 1977); Alvarado v. Manhattan Worker Career Ctr., No. 01 Civ. 9288, 2003 WL 22462032, at *3 (S.D.N.Y. Oct. 30, 2003).
II.
Dr. Torres has failed to establish a basis for reconsideration pursuant to either Rule 59(e) and Local Rule 6.3 or Rule 60(b).
The Court turns first to Dr. Torres's motion for reconsideration pursuant to Rule 59(e) and Local Rule 6.3. As an initial matter, the Court notes that her motion pursuant to these rules is timely. Although Dr. Torres seeks reconsideration of an Order signed April 27, 2006, the Order was not actually entered until June 9, 2006. Dr. Torres's motion was filed on June 22, 2006, which is within the ten-day time limit, as calculated under Federal Rule of Civil Procedure 6(a) for a motion under these rules to be submitted.
However, while timely, Dr. Torres's request for reconsideration rests entirely on new theories, arguments, and facts that were not previously presented to the Court. Indeed, her papers candidly concede that "[n]one of these facts have ever been presented to the Court on Dr. Torres' [s] behalf." (Torres Mem. at 1-2.) Dr. Torres does not argue, and has not shown, that there has been any intervening change in controlling law, that the evidence contained in her affidavit was not previously available to her or could not have been obtained through diligent efforts, or that the Court made a clear error of law in its prior ruling.
Dr. Torres submitted an affidavit in connection with this motion that contained the new factual evidence. Local Rule 6.3 provides that "[n]o affidavits shall be filed by any party unless directed by the court." See Ralph Oldsmobile Inc. v. General Motors Corp., No. 99 Civ. 4567, 2001 WL 55729, at *2 (S.D.N.Y. Jan. 23, 2001) ("When a party improperly submits an affidavit on a motion for reconsideration, the appropriate remedy is to strike the affidavit and disregard it."). However, Dr. Torres's application to file the affidavit is granted (Mem. at 8 n. 12), and the affidavit will be accepted for whatever value it may have.
This leaves only the question of whether Dr. Torres's motion for reconsideration should be granted in order to prevent an "obvious injustice." This question is considered below along with the issue of whether Dr. Torres has produced "highly convincing" evidence of the "extraordinary circumstances" necessary to obtain relief pursuant to Rule 60(b).
Although Dr. Torres also brings her motion pursuant to Rule 60(b), she has not argued, nor has she shown, that any of subsections (1) through (5) apply here. Rather, Dr. Torres relies on the catchall provision of Rule 60(b)(6). However, Dr. Torres has failed to produce highly convincing evidence of the extraordinary circumstances or extreme and undue hardship that Rule 60(b)(6) requires.
Dr. Torres's claim for relief rests principally on three claims. First, Dr. Torres alleges that she never received notice of the Court's January 31, 2000 Order, which notified the sureties of the Government's motion to forfeit the bail bond, set a briefing schedule, and directed the Government to serve the Order on the sureties. She also alleges that she did not receive notice of the Court's March 24, 2000 Order and Judgment, which ordered the bail bond forfeiture. Second, Dr. Torres argues that to the extent the Government released its equity interest in two New Jersey properties that secured the bond, such a release was done without notice to her and without her consent, materially altered her risk under the bond, and therefore discharged her obligations under the bond. Third, Dr. Torres argues that her prior counsel was grossly negligent and incompetent in failing to raise all arguments and evidence in her favor.
Dr. Torres's claims against her prior counsel are not a basis for relief. Even gross negligence of counsel is not a basis for relief under Rule 60(b)(6). See Alvarado, 2003 WL 22462032, at *3 (citing Cirami, 563 F.2d at 30 and Nemaizer, 793 F.2d at 63). The reason for this rule is that "[n]ormally, the conduct of an attorney is imputed to his client, for allowing a party to evade 'the consequences of the acts or omissions of [ ]his freely selected agent' 'would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent.'" See S.E.C. v. McNulty, 137 F.3d 732, 739 (2d Cir. 1998) (quoting Link v. Wabash Railroad Co., 370 U.S. 626, 633-34 (1962)).
Given that the facts and arguments that Dr. Torres now raises could have been asserted in her prior motion, Dr. Torres ultimately must rely on her counsel's alleged ineffectiveness as a vehicle for asserting these claims as a basis for relief. The key question, in other words, is whether her counsel's failure to raise these claims went beyond gross negligence and constituted an extraordinary circumstance that warrants relief under Rule 60(b). Because these underlying claims lack merit, the Court concludes that Dr. Torres's claim based on the ineffectiveness of her prior counsel does not warrant relief under Rule 60(b).
Turning to the underlying claims, first, there is no basis for concluding that Dr. Torres did not receive notice of the January 31 Order or the March 24 Order and Judgment. Dr. Torres alleges in her declaration that she never received notice of the Court's January 31 Order, which notified the sureties of the Government's bail forfeiture motion. This declaration is not credible and is contradicted by the record. According to the transcript, Dr. Torres was present at the March 24, 2000 bail bond forfeiture hearing. (Tr., dated Mar. 24, 2000 ("3/24/2000 Tr."), at 2.) At that hearing, the Government represented that it both mailed notice of its bail bond forfeiture motion to each of the sureties and that the United States Marshals Service personally delivered notice to each of the sureties. (Id. at 4-5.) The Court stated that "[i]t is obvious that the sureties have been notified, three of them have shown up." (Id. at 4.) Dr. Torres was one of the three sureties present at the hearing. At no time did Dr. Torres ever raise any objection or state that she had not in fact received notice. At the hearing the Court provided each of the sureties with an opportunity to state why the bond should not be forfeited (id. at 5) and further advised the sureties of the standards that courts apply in determining the forfeiture of a bail bond (id. at 6).
Dr. Torres also states in her papers that she was "never given notice of the [March 24] Judgment and was never made aware of its existence in any manner." (Torres Mem. at 3-4.) Yet, at the March 24 hearing, in Dr. Torres's presence, the Court announced, after providing detailed reasons for its decision, that it had signed the judgment ordering the forfeiture of the bail bond. (3/24/2000 Tr. at 12.) Therefore, Dr. Torres's allegations that she never received notice and was not afforded due process are without merit.
Finally, with respect to notice, the Court notes that Federal Rule of Criminal Procedure 46(f)(3)(B) provides that "[b]y entering into a bond, each surety submits to the district court's jurisdiction and irrevocably appoints the district clerk as its agent to receive service of any filings affecting its liability."See United States v. King, 349 F.3d 964, 966 (7th Cir. 2003) (discussing the notice requirements of this rule). The docket sheet reflects that copies of both the January 31, 2000 Order, which set the date of the March 24 hearing, and the March 24 judgment were both filed with the district clerk and mailed. This fact provides an additional basis for finding that Dr. Torres received adequate notice.
Second, Dr. Torres argues that if the Government released its equity interest in the two New Jersey properties that secured the bond without providing her with notice or obtaining her consent, then her obligation under the bond should be discharged. The general rule is that a surety's obligations under a bond will be discharged if the Government materially increases the surety's risk without providing notice and obtaining the surety's consent.See United States v. Martinez, 151 F.3d 68, 72 (2d Cir. 1998).
However, "[s]ureties must shoulder the burden of demonstrating entitlement to exoneration or reduction." King, 349 F.3d at 968. That burden requires the surety to show not only that a changed bail condition materially increased the surety's risk but also that the defendant's flight is causally related to the incremental increase in risk created by the changed condition.See id.
In this case, Dr. Torres has produced no evidence that the Government materially increased the surety's risk. The bond was forfeited and a judgment entered against all of the sureties, including Dr. Torres, on March 27, 2000. The only evidence presented with respect to the New Jersey properties was proffered by the Government in response to Dr. Torres's current motion. That evidence shows that obligations under the bond have been reduced by the proceeds of the sales of the New Jersey properties in May 2002 and May 2004. (See Ex. B to Gov't Resp.; Gov't Letter, dated Nov. 8, 2006.) These events transpired after the judgment had already been entered against Dr. Torres, and Dr. Torres has presented no evidence to show that they did not appropriately reduce any potential judgment against her. She has failed to show that the forfeiture on the bond should be vacated on this basis.
Third, Dr. Torres argues that the new facts provided in her affidavit are sufficient to satisfy her burden, pursuant to Federal Rule of Criminal Procedure 46(f)(2), of showing that "justice does not require bail forfeiture" and that remission of the bail forfeiture is warranted. However, having carefully considered all of the factual information that Dr. Torres has provided in light of the standards explained in the Court's April 27 Opinion and Order, the Court concludes that there is nothing in those considerations that alters the Court's original rationale in forfeiting the bail and entering the judgment against each of the sureties, including Dr. Torres, and denying the motion to vacate the default.
Finally, the parties have raised several collateral issues, such as the appropriate method for calculating interest on the judgment and the amount that the proceeds of the sales of the New Jersey properties should reduce the judgment. These issues are unrelated to the ultimate question in this motion — whether the Court's April 27 Order denying Dr. Torres's motion to remit the bail bond forfeiture should be reconsidered, modified, or vacated. Having determined that there is no basis for reconsideration of its April 27 Order, the judgment ordering forfeiture of the bail remains in effect. Issues regarding the appropriate amount of payment due on the judgment are distinct from the question of whether the judgment itself should be vacated or modified. As the parties seem to agree, these issues are more appropriately raised in the context of a judgment execution proceeding and not on a motion for reconsideration. (See Tr., dated Nov. 2, 2006, at 10-11, 16-17.);see also Fed.R.Civ.P. 69 (detailing the process for enforcement of a judgment for the payment of money). Thus, these issues need not be decided on the present motion.
In sum, Dr. Torres has failed to show that her motion for reconsideration, pursuant to Rule 59(e) and Local Rule 6.3, is necessary to prevent "obvious injustice." She has also failed to produce highly convincing evidence of extraordinary circumstances or the potential for extreme and undue hardship. Finally, Dr. Torres has failed to demonstrate a strong likelihood of success on the merits, were the Court inclined to reconsider its prior Order. Therefore, for all of the reasons stated, Dr. Torres's motion is denied.
SO ORDERED.