Filed: Feb. 25, 2016
Latest Update: Mar. 02, 2020
Summary: 15-1512 Manolis v. Brecher 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 ASUMMARY ORDER@). A
Summary: 15-1512 Manolis v. Brecher 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 ASUMMARY ORDER@). A ..
More
15-1512
Manolis v. Brecher
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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 25th day of February, two thousand sixteen.
4
5 PRESENT:
6 DENNIS JACOBS,
7 DENNY CHIN,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10 _____________________________________
11
12 Angie Joan Manolis,
13
14 Plaintiff-Appellant,
15
16 v.
17 15-1512
18
19 Daniel Brecher,
20
21 Defendant-Appellee.
22 _____________________________________
23
24 FOR PLAINTIFF-APPELLANT: Angie Joan Manolis, pro se, Athens,
25 Greece.
26
27 FOR DEFENDANT-APPELLEE: Andrew W. Gefell and Robert J.
28 Bergson, Abrams Garfinkel Margolis
29 Bergson, LLP, New York, New York.
30
31
32
1 Appeal from an order of the United States District Court for the Southern District of New
2 York (Berman, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the order of the district court is AFFIRMED.
5 Plaintiff-Appellant Angie Joan Manolis, a foreign lawyer appearing pro se, appeals the
6 denial of her Federal Rule of Civil Procedure 60(b) motion for reconsideration of the district
7 court’s order granting summary judgment in favor of Defendant-Appellee Daniel Brecher on
8 Manolis’s breach of contract claim. In a previous order, we affirmed the grant of summary
9 judgment and determined that we lacked jurisdiction to review district court orders issued before
10 the entry of summary judgment because Manolis had failed to properly appeal them. See Manolis
11 v. Brecher, 588 F. App’x 85 (2d Cir. 2015) (summary order). We assume the parties’ familiarity
12 with the underlying facts, the procedural history of the case, and the issues on appeal.
13 We review the denial of a Rule 60(b) motion for abuse of discretion. Meilleur v. Strong,
14 682 F.3d 56, 64 (2d Cir. 2012). “A district court abuses its discretion if it bases ‘its ruling on an
15 erroneous view of the law or on a clearly erroneous assessment of the evidence.’” Ins. Co. of N.
16 Am. v. Pub. Serv. Mut. Ins. Co.,
609 F.3d 122, 127 (2d Cir. 2010) (quoting Transaero, Inc. v. La
17 Fuerza Aerea Boliviana,
162 F.3d 724, 729 (2d Cir. 1998)).
18 “[T]he law of the case doctrine forecloses reconsideration of issues that were decided—or
19 that could have been decided—during prior proceedings” in the same case. United States v.
20 Williams,
475 F.3d 468, 471 (2d Cir. 2007). One branch of that doctrine, the mandate rule,
21 “prevents re-litigation in the district court not only of matters expressly decided by the appellate
22 court, but also precludes re-litigation of issues impliedly resolved by the appellate court’s
2
1 mandate.” Brown v. City of Syracuse, 673 F.3d 141, 147 (2d Cir. 2012) (quoting Yick Man Mui
2 v. United States,
614 F.3d 50, 53 (2d Cir. 2010)). Furthermore, “‘where an issue was ripe for
3 review at the time of an initial appeal but was nonetheless foregone,’ it is considered waived and
4 the law of the case doctrine bars the district court on remand and an appellate court in a subsequent
5 appeal from reopening such issues . . . .” United States v. Quintieri,
306 F.3d 1217, 1229 (2d Cir.
6 2002) (quoting United States v. Ben Zvi,
242 F.3d 89, 95 (2d Cir. 2001)); see also
id. at 1225 (“The
7 ‘mandate rule’ ordinarily forecloses relitigation of all issues previously waived by the defendant or
8 decided by the appellate court.”); DeWeerth v. Baldinger,
38 F.3d 1266, 1270–71 (2d Cir. 1994) (a
9 district court lacks jurisdiction to consider a Rule 60(b) motion in a case that has been reviewed on
10 appeal unless the motion for reconsideration is based on “later events” or a “change in
11 circumstances” not previously considered by the appellate court).
12 Manolis premised her reconsideration motion on forgery allegations that were litigated
13 prior to the entry of summary judgment and determined by the district court to be unfounded. She
14 raised those allegations again in her summary judgment opposition briefing; the district court’s
15 summary judgment decision explained that it had already rejected the arguments. Manolis
16 purported to challenge the earlier determinations when she appealed from the summary judgment
17 order, and we concluded that she had not properly appealed the prior orders rejecting those
18 arguments; she also cited her forgery allegations as reason for reversal of the summary judgment
19 decision. We have thus already considered Manolis’s forgery allegations, and, to the extent that
20 we did not address the merits of those allegations in our previous order, the fault is her own.
21 Manolis argues that her motion was based on an expert analysis that supported her forgery
22 allegations, and that the analysis was not commissioned and produced until after we affirmed the
3
1 grant of summary judgment in Brecher’s favor; she contends that the analysis therefore constitutes
2 a “later event” that we did not previously consider in connection with her previous appeal. This
3 argument is without merit. The claimed forgery does not constitute events or circumstances that
4 arose after the initial appeal; Manolis has been pressing the same argument, regarding the same
5 emails, since at least September 2011. Accordingly, the district court did not abuse its discretion
6 in ruling that it was precluded from considering her motion. See Fine v. Bellefonte Underwriters
7 Ins. Co., 758 F.2d 50, 52 (2d Cir. 1985) (the district court correctly held that, pursuant to
8 law-of-the-case doctrine, it lacked jurisdiction to consider Rule 60(b) motion following appellate
9 decision because movant cited no “material change of circumstances or newly discovered
10 evidence”).
11 In any event, Manolis would not be entitled to Rule 60(b) relief. Although she framed her
12 motion as one seeking relief pursuant to Rule 60(b)(3), her real claim is that the expert analysis is
13 newly discovered evidence under Rule 60(b)(2). See State St. Bank & Trust Co. v. Inversiones
14 Errazuriz Limitada,
374 F.3d 158, 178 (2d Cir. 2004) (“Where a claim sounds very much like a
15 claim regarding newly discovered evidence, the claim is controlled by 60(b)(2) and should not be
16 labeled as if brought under a different provision of Rule 60(b).” (internal quotation marks
17 omitted)). Manolis is not entitled to relief under that rule because she could have obtained the
18 expert analysis at any time prior to summary judgment. See Fed. R. Civ. P. 60(b)(2) (a court may
19 grant relief from judgment based on “newly discovered evidence that, with reasonable diligence,
20 could not have been discovered . . .”); see also State St.
Bank, 374 F.3d at 178 (“To prevail on a
21 motion for relief pursuant to Rule 60(b)(2), a movant must demonstrate that [s]he was justifiably
22 ignorant of the newly discovered evidence despite due diligence.”).
4
1 We have considered all of Manolis’s arguments and find them to be without merit.
2 Accordingly, we AFFIRM the order of the district court.
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk
5
