Opinion
No. 04 Civ. 2744 (VM)(KNF).
December 8, 2005
REPORT and RECOMMENDATION
In the case at bar, brought under, inter alia, the Fair Labor Standards Act, defendant Nam-Hi Lee ("Lee") has made a motion to dismiss, pursuant to Fed.R.Civ.P. 60(b). Lee contends that the relief she seeks is warranted because the plaintiffs have stolen medical records and documents pertinent to their work and salary history from premises controlled by the defendants and, thereby, have hampered the defendants' ability to contest the allegations made against them in this action. According to Lee, as a consequence of the plaintiffs' misconduct, criminal charges have been preferred against two of them by a local prosecutor.
The plaintiffs oppose Lee's motion. They contend that the motion should be construed liberally as a request to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and, furthermore, that inasmuch as Lee has relied upon matters outside the pleadings to support her motion, the motion should be converted to a motion for summary judgment, made pursuant to Fed.R.Civ.P. 56.
Other defendants in the action have submitted a writing to the Court in support of Lee's motion. They maintain that the motion should be construed liberally as a request that the court exercise its inherent equitable powers to sanction the plaintiffs for seeking to use, in this action, evidence that was wrongfully obtained.
Fed.R.Civ.P. 60, which is a vehicle through which a litigant may obtain relief from a judgment entered by a court, in its most pertinent part, provides the following:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. . . .
Based on the express language of Fed.R.Civ.P. 60(b)(3), it is clear that a district court may relieve a party from a final judgment for fraud or other misconduct. However, "[t]o prevail on a Rule 60(b)(3) motion, a movant 'must show that the conduct complained of prevented the moving party from fully and fairly presenting his case.'" State Street Bank and Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004) (quoting Taylor v. Texgas Corp., 831 F.2d 255, 259 [11th Cir. 1987]).
In the instant case, no judgment has been entered. Since Fed.R.Civ.P. 60 is a vehicle through which a litigant may obtain relief from a judgment and no judgment has been entered in the instant case, Lee's reliance on Rule 60 to obtain relief for what she believes is misconduct on the part of the plaintiffs is misplaced. However, because Lee is proceeding pro se in this action, the Court is required to construe her motion papers liberally, see Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 494 (1972); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991), and to interpret Lee's submission to the Court in a way that will "raise the strongest arguments they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
The plaintiffs suggest that when viewed liberally, Lee's motion should be construed as one made, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the plaintiffs' complaint for failure to state a claim upon which relief can be granted. The plaintiffs contend that, if the court were to adopt their suggestion and construe Lee's motion as one made pursuant to Fed.R.Civ.P. 12(b)(6), the court would be duty-bound to convert the motion from a motion to dismiss to a motion for summary judgment, made pursuant to Fed.R.Civ.P. 56, and disposed of it accordingly. According to the plaintiffs, this would be warranted because Lee has relied upon matters outside the pleadings to support the motion now before the Court. Moreover, the plaintiffs maintain that once Lee's motion to dismiss is converted to a motion for summary judgment, the motion should be denied.
In support of their position that Lee's "Fed.R.Civ.P. 56 motion" should be denied, the plaintiffs note that Lee failed to comply with Local Civil Rule 56.1 of this court. The relevant provision of that Local Rule requires a party moving for summary judgment to "annex to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(a). The Local Rule also cautions that the "failure to submit such a statement may constitute grounds for denial of the motion." Id. Lee did not submit to the Court a statement of the material facts about which she contends there is no issue to be tried.
The plaintiffs also note that Lee's motion failed to address the material facts of this case, that is, those facts that might affect the outcome of the instant action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). In particular, the plaintiffs allege that Lee's motion does not address facts that are germane to the plaintiffs' claims for, among other things, alleged violations of the federal and state minimum wage and overtime laws. In addition, the plaintiffs contend that Lee has failed to present the Court with facts, via affidavit or otherwise, that would be admissible in evidence to support her motion, as she is required to do by Fed.R.Civ.P. 56(e). The plaintiffs maintain that all these deficiencies militate in favor of denying Lee's "Fed.R.Civ.P. 56 motion."
At this juncture in the litigation, it would not be reasonable and appropriate to adopt the plaintiffs' suggestion, that Lee's motion be construed liberally as a motion to dismiss, made pursuant to Fed.R.Civ.P. 12(b)(6), and then converted to a motion for summary judgment. This is so because, as Fed.R.Civ.P. 12(b)(6) makes clear, before a court may convert a motion to dismiss to one for summary judgment and dispose of it as provided in Fed.R.Civ.P. 56, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Lee has not been made aware that her motion to dismiss might be adjudicated by the court as a motion for summary judgment, made pursuant to Fed.R.Civ.P. 56, and she has not been given a reasonable opportunity to present to the court such material as she might deem pertinent to the court's adjudication of her motion pursuant to Fed.R.Civ.P. 56. Therefore, before such action on Lee's motion could properly be taken, Lee would need to be put on notice that the court intends to convert her motion to dismiss to a motion for summary judgment. Thereafter, Lee would have to be permitted an opportunity to present all material pertinent to such a motion that she believes the court needs to know in order to determine whether she is entitled to summary judgment.
As noted above, other defendants in the action support Lee's motion. However, they believe that it should be construed liberally by the court as a motion for the court to exercise its inherent equitable powers to sanction the plaintiffs for seeking to use, in this action, evidence that has been obtained wrongfully. In support of their position, Lee's co-defendants have directed the Court's attention to Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319, 325 (S.D.N.Y. 1997). In Fayemi, the plaintiff acknowledged that he removed, furtively, confidential information from a computer at his employer's offices so that he might use the information in the litigation. However, unlike the situation in Fayemi, it has not been determined that the plaintiffs removed improperly from their former work sites documents belonging to the defendants that the defendants contend are needed to defend against the allegations made in this action. Therefore, at this point in the litigation, there is no basis for the court to impose any sanctions upon the plaintiffs for alleged misconduct.
Based on the above, the Court recommends that Lee's motion to dismiss, made pursuant to Fed.R.Civ.P. 60, be denied. The Court also recommends that, if your Honor determines to adopt the suggestions made by the plaintiffs, that Lee's motion be construed liberally as one made pursuant to Fed.R.Civ.P. 12(b)(6) and, further, that it be converted to a motion for summary judgment, Lee be given notice of this conversion and an opportunity to comply with Local Rule 56.1 and to present such pertinent material to the court as she deems appropriate to have the motion for summary judgment adjudicated fully.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, United States District Judge, 40 Centre Street, Room 414, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Marrero. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).