12-3694-cv
Colucci v. Beth Israel Medical Center, et al.

                                        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 “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th
day of August, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            CHESTER J. STRAUB,
            SUSAN L. CARNEY,
                          Circuit Judges.
_____________________________________
CLEUZA COLUCCI,

                      Plaintiff-Appellant,

THOMAS E. COLUCCI, relator, bringing this action on behalf of
the United States of America,

                      Plaintiff,

                                   v.                                                            No. 12-3694-cv

BETH ISRAEL MEDICAL CENTER, MORT HYMAN, TOM HAYES,
ROBERT NALDI,

                      Defendants-Appellees,

ERNST & YOUNG LLC.,

                      Defendant.1


         The Clerk of Court is directed to amend the caption of this case to conform to the listing of the parties
           1

shown above.
FOR PLAINTIFF-APPELLANT:                                          RAYMOND J. AAB (Omar D. Lopera, Law
                                                                  Office of Omar D. Lopera, Jackson Heights,
                                                                  NY, on the brief), Koehler & Isaacs LLP, New
                                                                  York, NY.

FOR DEFENDANTS-APPELLEES:                                         JAMES F. SEGROVES (Roger A. Cohen,
                                                                  Malcolm J. Harkins, III, Edward S. Kornreich
                                                                  on the brief), Proskauer Rose LLP, Washington,
                                                                  DC and New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Denny Chin, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s August 16, 2012 order is AFFIRMED.

        Plaintiff-Appellant Cleuza Colucci2 appeals from the District Court’s August 16, 2012
memorandum and order, denying her motion for relief from final judgment pursuant to Federal
Rule of Civil Procedure 60(b). We assume the parties’ familiarity with the underlying facts and the
procedural history of the case, to which we refer only as necessary to explain our decision to affirm.

        The decision whether to grant a party’s Rule 60(b) motion is committed to the “sound
discretion” of the district court. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). Rule 60(b) is “a
mechanism for ‘extraordinary judicial relief’ invoked only if the moving party demonstrates
‘exceptional circumstances.’” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (citation
omitted). A district court’s determination that a Rule 60(b) motion is untimely remains subject to
this abuse-of-discretion standard. See, e.g., Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir.
1989).

       Colucci argues on appeal that her motion should have been granted pursuant to three of
Rule 60(b)’s clauses: 60(b)(1), 60(b)(2), and the residual clause, 60(b)(6). We disagree.




         2 Cleuza Colucci, Thomas Colucci’s widow, was substituted as relator in this action under Federal Rule of Civil
Procedure 25(a) following the death of her husband. See U.S. ex rel. Colucci v. Beth Israel Med. Ctr., 603 F. Supp. 2d 677
(S.D.N.Y. 2009). Although we have not ruled on whether a qui tam action under the False Claims Act can survive the
death of the relator, because we affirm the District Court’s ruling on Colucci’s motion for Rule 60(b) relief, we need not
do so today.
                                                            2
                                                           A.

         First, Colucci’s motion is time barred. “A motion under Rule 60(b) must be made within a
reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). This one-year limitations
period is “absolute.” Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000). Colucci filed her motion on
April 2, 2012, the final day permitted under the applicable period; however, the accompanying
memorandum of law was not submitted until April 6, 2012, four days after the deadline had expired.
Accordingly, the District Court acted within its discretion in holding that Colucci’s motion was
untimely in light of the Court’s Local Civil Rule 7.1(a), which requires all motions to include a
“memorandum of law setting forth the cases and other authorities relied upon in support of the
motion.” Local Rule 7.1(a); see also Fed. R. Civ. P. 7(b)(1) (requiring a motion to “state with
particularity” the ground on which it is based). Any interpretation of the rules permitting piecemeal
filing, as Colucci advances here, would allow parties to circumvent the purpose of Rule 60’s time
limits by filing incomplete motion papers at the deadline. Cf. Feldberg v. Quechee Lakes Corp., 463 F.3d
195, 197 (2d Cir. 2006) (“Permitting the [plaintiffs] to supplant their timely yet insufficient
‘placeholder’ Rule 59(e) motion . . . with their subsequent augmented filing . . . would afford them
an easy way to circumvent Rule 60(b)’s prohibition on granting an enlargement of time for filing
motions under Rule 59(e).”).3

          In an attempt to circumvent the one-year bar, Colucci recasts her Rule 60(b)(2) motion in
the guise of a motion under Rule 60(b)(6), which does not have a filing deadline. Colucci all but
concedes this point when she states, in reference to Modzelewski’s affidavit, “[t]his is newly available
evidence [that] presents a previously undisclosed fact so central to the litigation that it shows the initial
judgment to have been manifestly unjust, and reconsideration under Rule 60(b)(6) is proper.”
Appellant’s Br. 20 (emphasis supplied) (internal quotation marks omitted). Yet “Rule 60(b)(6) is a
broadly drafted ‘umbrella provision,’ which must be read in conjunction with the other sections of
that Rule, and is applicable only where the more specific provisions do not apply.” PRC Harris, Inc.
v. Boeing Co., 700 F.2d 894, 898 (2d Cir. 1983). Accordingly, Colucci’s Rule 60(b)(6) motion is more
properly construed as a Rule 60(b)(2) claim of newly-discovered evidence, and, thus, is also barred
under the absolute one-year deadline.




          3 Colucci’s Rule 60(b)(1) motion is also time barred once the time that would be permitted for an appeal of the

judgment being challenged has expired. See In re 310 Associates, 346 F.3d 31, 35 (2d Cir. 2003) (endorsing the approach
laid out by Judge Friendly in Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir. 1964), under which “Rule 60(b)(1) motions not
be permitted past the deadline for filing a notice of appeal, thereby preventing Rule 60(b)(1) from becoming a way to
assert an otherwise time-barred appeal”). Although Colucci filed a timely notice of appeal from the District Court’s final
judgment on April 28, 2011, proceeding pro se, this Court dismissed her appeal roughly six months later for failure to
comply with an order requiring her to obtain assistance of counsel. Five months after that dismissal, Colucci filed her
motion for Rule 60(b)(1) relief, claiming legal error, as an apparent attempt to circumvent the dismissal of her appeal.
                                                            3
                                                          B.

        Second, the District Court did not err in denying Colucci’s motion on the merits. Rule
60(b)(1) allows for relief from judgment in cases of mistake, including legal errors made by the
District Court. See United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009). Even assuming
Colucci may challenge the legal basis for the District Court’s dismissal of the amended complaint,
notwithstanding the subsequent dismissal of her direct appeal, see note 3, ante, we find no legal error
in the District Court’s well-reasoned and thorough opinion, see U.S. ex rel. Colucci v. Beth Isr. Med. Ctr.,
785 F. Supp. 2d 303 (S.D.N.Y. 2011).

          Rule 60(b)(2) provides relief from judgment when the movant presents “newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to move for a new
trial.”4 Fed. R. Civ. P. 60(b)(2). The purported newly-discovered evidence upon which Colucci
relies is an affidavit by Donald Modzelowski, Beth Israel Medical Center’s former Vice President for
Medicare Reimbursements, in which he describes his own involvement in the alleged scheme to
overbill Medicare. Modzelowski details a conversation with Thomas Hayes, former CFO of Beth
Israel, during which Hayes instructs Modzelowski to misrepresent to a Medicare representative that
teaching was being conducted at two of Beth Israel’s non-teaching hospitals. Colucci claims that
this evidence could not have been discovered until shortly before expiration of the one-year deadline
because Modzelowski was serving a sentence of probation from a state conviction, and in response
to any efforts to compel his testimony, Modzelowski would have invoked his Fifth Amendment
privilege against self-incrimination.

         Yet such evidence could have been discovered with reasonable diligence far in advance of
the date of the entry of judgment. In August 2008, Modzelewski was a “professional consultant” on
Colucci’s case at both the state and federal level, and in June 2009, he participated in settlement
negotiations. Colucci’s argument that Modzelewski would have asserted his Fifth Amendment
privilege if compelled to testify is too speculative; an affiant is only unavailable when he has actually
invoked the Fifth Amendment privilege. Cf. Fed. R. Evid. 804 advisory committee’s note
(“Substantial authority supports the position that exercise of a claim of privilege by the declarant
satisfies the requirement of unavailability . . . . A ruling by the judge is required, which clearly implies
that an actual claim of privilege must be made.” (citations omitted)). And, most importantly, even
assuming Modzelewski would have sought Fifth Amendment protection during his term of
probation, the term ended in November 2010, five months before the District Court’s entry of
judgment and seventeen months before Colucci filed her motion for relief from judgment.5
Accordingly, the District Court did not err in denying Colucci’s Rule 60(b)(2) motion on the merits.

         4  As previously noted, Colucci’s Rule 60(b)(6) argument is more properly viewed through the lens of Rule
60(b)(2), and, thus, the merits of that argument are subsumed within the discussion here.
         5 For these reasons, even assuming Colucci’s motion was filed within the absolute one-year deadline, the
District Court did not err in holding that the motion was not filed “within a reasonable time.” The reasonableness
                                                           4
                                                   CONCLUSION

        We have considered all of Colucci’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the August 16, 2012 order of the District Court.

                                                                  FOR THE COURT:
                                                                  Catherine O’Hagan Wolfe, Clerk




assessment requires a court to “scrutinize the particular circumstances of the case, and balance the interest in finality
with the reasons for delay.” PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1983) (citation omitted). The delay
here in obtaining Modzelewski’s affidavit was not justified.
                                                             5
