Infanti et al v. Scharpf et al, No. 1:2006cv06552 - Document 64 (E.D.N.Y. 2012)
Court Description: ORDER denying 60 Motion for Reconsideration. Ordered by Senior Judge I. Leo Glasser on 3/9/2012. (Green, Dana)
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Infanti et al v. Scharpf et al Doc. 64 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x VITTORIO INFANTI and INFANTI INTERNATIONAL, INC., Plaintiffs, Mem orandum and Order 0 6 Civ. 6552 - against GEORGE SCHARPF, et al., Defendants. ------------------------------------------------------x GLASSER, United States District J udge: Before the Court is a m otion by Vittorio Infanti (“Infanti” or “plaintiff”) seekin g reconsideration of the Court’s Mem orandum & Order dated February 14, 20 12, gran tin g sum mary judgment to defendants and denyin g plaintiff’s motion for partial sum m ary judgm ent. See Infanti v. Scharpf, No. 0 6 Civ. 6552 (ILG), 20 12 WL 511568 (E.D.N.Y. Feb. 15, 20 12) (“the Order”). Familiarity with the underlying facts and exten sive procedural history of this case is presum ed. Plaintiff’s m otion cites no pertin ent rules of civil procedure or relevant case law. 1 However, based on plaintiff’s argum ents, the Court construes this m otion as one brought pursuant to Federal Rule of Civil Procedure 60 (b). For the reasons set forth below, the m otion must be DENIED. 1 Plaintiff cites alm ost exclusively to California State Law. See Plaintiff’s Mem oran dum of Law (“Pl.’s Mem .”) at 6 (Dkt. No. 60 ). 1 Dockets.Justia.com 1. Plain tiff H as Pre s e n te d n o “N e w ly D is co ve re d Evid e n ce ” As far as the Court can discern, plaintiff argues the judgmen t must be vacated for “newly discovered evidence that, with reasonable diligen ce, could not have been discovered in tim e to m ove for a n ew trial under Rule 59(b).” Fed. R. Civ. P. 60 (b)(2) (“Rule 60 (b)(2)”); see Plaintiff’s Motion for Reconsideration at 2 (Dkt. No. 60 ) (“[The m otion] has been filed in part based on facts different from those asserted on Plain tiff’s origin al Motion., den omin ated as newly discovered Evidence.”). 2 In order to succeed on a m otion pursuant to Rule 60 (b)(2), a m ovant must m eet an “onerous standard” by showin g that: 1) the newly discovered evidence was of facts in existen ce at the tim e of the dispositive proceeding; 2) he was justifiably ignorant of those facts despite due diligence; 3) the evidence is admissible and of such importance that it probably would have changed the outcome; and 4) the eviden ce is n ot m erely cumulative or impeaching. United States v. Int’l Bhd. of Team sters, 247 F.3d 370 , 392 (2d Cir. 20 0 1). Plaintiff’s m otion fails because plaintiff was not ignorant of the evidence. The “newly discovered evidence” consists of plain tiff inform ing his attorn ey, for the first time, of various events and conversations that occurred in 20 0 2 when he attempted to borrow m oney from an investor, Ekm el Anda (“Anda”), in order to discharge the judgm ent obtain ed against him by George Gasser (“Gasser”). See Declaration of Thomas L. Irwin dated February 27, 20 12 (Dkt. No. 60 ); Declaration of Vittorio Infanti dated February 27, 20 12 (Dkt. No. 60 ). Plaintiff has known this information for ten 2 Because the m otion and m em orandum of law contain s inconsistent num bering of paragraphs and pages, the Court cites to the page num bers assigned by ECF. Where the Court quotes from plaintiff’s m em orandum , all errors are in the original. 2 years. Withholding evidence from one’s counsel until after the judgment does n ot render the evidence “newly discovered.” Plaintiff cites n o authority or justification for this definition of “newly discovered evidence,” nor can he, for such a rule would be selfdefeatin g. Plaintiff also subm its an affidavit from a forensic accountant recalling work he performed as far back as 20 0 7 and speculatin g on additional eviden ce of wron gdoin g that may be obtained through further analysis of various records. See Declaration of Mario Perez dated March 4, 20 12 (Dkt. No. 61). Mr. Perez’s recollections are not “n ewly discovered” and his declaration dem onstrates nothing m ore than that plain tiff did not conduct a diligent search of the discovery available to him . Plaintiff also alleges, for the first time, injuries on behalf of his Argen tinean business “Top Line.”3 Plaintiff goes so far as to seek to amend his complaint to add Top Line as a plain tiff. See Pl.’s Mem. at 9. For m ore than a decade, plaintiff has been aware of his ownership of Top Line. For the reasons set forth previously, this can hardly be con sidered new eviden ce. 2 . Plain tiff Fails to Sh o w An y Oth e r Re as o n th at Ju s tifie s Re lie f Plaintiff raises a num ber of other arguments the Court con strues as a m otion pursuant to Rule 60 (b)(6), for “any other reason that justifies relief.” Because the grant of a Rule 60 (b) m otion affords the m ovant “extraordinary judicial relief, it is invoked 3 “What is alleged is that Vittorio Infanti was actively en gaged in runn in g his own business, known at that tim e as “TOP LINE.” It was this business that George Scharpf interfered with. Had George Scharpf not telephon ed Vittorio In fanti at the Sheridan Hotel in Argentina, No injury would have occurred.” Pl.’s Mem . at 8; see also id. at 25 (“Top Line is an entity that suffered injury due to a RICO violation. . . . The defendants controlled Infanti’s business Top Lin e & caused said business to suffer injury . . . .”). 3 only upon a showing of exceptional circumstances.” Nem aizer v. Baker, 793 F.2d 58 , 61 (2d Cir. 1986); see also Liljeberg v. Health Sys. Acquisition Corp., 486 U.S. 847, 863, 10 8 S. Ct. 2194, 10 0 L. Ed. 2d 855 (1988) (“Motions brought under Rule 60 (b)(6) should be granted only in ‘extraordinary circumstances.’”). “‘The standard for granting such a m otion is strict, and reconsideration will generally be den ied unless the m ovin g party can poin t to con trolling decisions or data that the court overlooked—matters, in other words, that m ight reasonably be expected to alter the conclusion reached by the court.’” Gov’t Employees Ins. Co. v. Hollis Medical Care, P.C., 10 Civ. 4341 (ILG) (RML), 20 11 WL 550 7426, *2 (E.D.N.Y. Nov. 6, 20 11) (quoting Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). “A m otion for reconsideration is not simply a second opportunity for the m ovant to advance argum ents already rejected.” Koehl v. Warden, No. 0 0 Civ. 6499 (NGG), 20 0 7 WL 680 767, at *1 (E.D.N.Y. Mar. 2, 20 0 7) (in tern al quotation m arks omitted). a. Second Cause of Action: RICO The Court granted sum mary judgment to defendants’ on plaintiff’s RICO claim, finding that the only in juries alleged were to the corporation Infan ti Internation al, Inc. (“the Corporation”), n ot Infanti, and Infanti did not have standing to bring claims on behalf of the Corporation. Because Infanti lacked standing, the Court did not address the sufficiency of the predicate acts. Nevertheless, in his m otion for reconsideration, plaintiff alleges numerous new predicate acts: The Court is perhaps ignoring the fact that there exists in this case, serious crimin ality, including (1) hijackin g in interstate com m erce, (2) assault on Plaintiff, (3) Em bezzlement; (4) attem pted murder, culprits unknown (5) Obstruction of J ustice (known actors) one of whom m ay be wrapped into a “m oving m on ey scheme” . . . (6) Money 4 Laundering. It is respectfully argued that each of these events satisfy RICO regarding Injury to Business or property of the plaintiff . . . . Pl.’s Mem. at 15; see also id. at 16 (“[T]he court cited merely two predicate acts, when there are hundreds of said acts weekly where the secret EKI is operating out of this ban k.”). These conclusory allegations fall far below the standard for Rule 60 (b)(6) and are not relevant to the grounds on which sum mary judgmen t was granted. b. Sixth Cause of Action: Breach of Fiduciary Duty The Court granted sum mary judgment to defendants on plaintiff’s claim for breach of fiduciary duty on the grounds that plaintiff dem onstrated n o m ore than a debtor-creditor relationship with Am boy and Scharpf and, as a m atter of law, that relationship is n ot a fiduciary one. In his m otion, plaintiff alleges defendants com mitted numerous crim inal and tortious acts against him. As far as the Court can discern, plaintiff asks that the Court find a breach of fiduciary duty as a result of these crim es. See Pl.’s Mem. at 15 (“The Court is being asked to jealously guard certain phrases of the law, ‘debtor creditor’ & to n ot n otice the crimes com mitted by these conspirators.”); id. at 19 (“The crim inal events described certainly transcend a m ere ‘debtor creditor relationship’ excuse, and they are far in excess of an ephemeral Fiduciary relationship.”); id. at 22 (“Respectfully it seems that serious crim es . . . abound, & yet there is n o fiduciary violation.”). As a m atter of law and logic, even if plaintiff’s allegations were credited, it would not resuscitate his claim . The com mission of a tort or crime again st a plain tiff does n ot create a fiduciary relationship and plaintiff’s argumen ts are without m erit. 5 CON CLU SION For the foregoing reasons, plaintiff’s m otion for reconsideration is DENIED. SO ORD ERED . Dated: Brooklyn, New York March 9, 20 12 _ _ _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser, U.S.D.J . 6
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