14-69-cv
Zhao v. State University of New York, 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 20th day of August, two thousand fifteen.

PRESENT:             JOSÉ A. CABRANES,
                     REENA RAGGI,
                     RICHARD C. WESLEY,
                                  Circuit Judges,


JIN ZHAO,

                     Plaintiff-Appellant,

                               v.                                No. 14-69-cv

STATE UNIVERSITY OF NEW YORK; OLCAY BATUMAN,
DOCTOR; STATE UNIVERSITY OF NEW YORK
DOWNSTATE MEDICAL CENTER; RESEARCH FOUNDATION
FOR THE STATE UNIVERSITY OF NEW YORK,

                     Defendants-Appellees,

SUSAN C. WARNOCK,

                     Appellee,

HEALTH SCIENCE CENTER AT BROOKLYN
FOUNDATION, INC.,

                     Defendant.
FOR PLAINTIFF-APPELLANT:                                Jin Zhao, pro se, Brooklyn, NY.

FOR DEFENDANTS-APPELLEES:                               Oren L. Zeve, Assistant Solicitor General of
                                                        the State of New York (Barbara D.
                                                        Underwood, Solicitor General, and Michael S.
                                                        Belohlavek, Senior Counsel, on the brief), for
                                                        Eric T. Schneiderman, Attorney General of
                                                        the State of New York, New York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Kiyo A. Matsumoto, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is VACATED and the cause
REMANDED for further proceedings.

     Plaintiff-appellant Dr. Jin Zhao, proceeding pro se, appeals from the District Court’s
December 18, 2013 order denying two post-judgment motions for lack of jurisdiction.

        Zhao worked as a postdoctoral research associate in a SUNY Downstate Medical Center
laboratory from January 14 to October 25, 2002, when she was fired. In 2003, Zhao filed an
employment discrimination suit. In October 2010, after extensive motion practice, the District
Court set a trial date of January 10, 2011. On January 7, 2011, Zhao fired her attorney, Susan
Warnock, and hired a new attorney. Trial began, as scheduled, on January 10, 2011. After a brief
recess on the first day of trial, the parties informed the District Court that they had agreed to settle
the case for $70,000. The terms of the settlement were placed on the record, and Zhao consented to
them. On January 11, 2011, the District Court dismissed the case with prejudice.

       Warnock, who was Zhao’s attorney during most of the case, sought attorney’s fees from
Zhao. On August 15, 2011, the District Court awarded Warnock $57,000 in fees, concluding that
Zhao fired Warnock without cause, and that Zhao’s objections to Warnock’s representation were
unsupported and lacked substance. Zhao, acting pro se, appealed the District Court’s fee award.

         On December 12, 2013, while the fee award appeal was pending, Zhao filed two motions in
the District Court. First, she requested a new trial in her underlying employment discrimination case,
based on her claim that the settlement agreement was involuntary. Second, she moved to recuse the
district judge and magistrate judge from the case. On December 18, 2013, the District Court entered
a text order stating:

        Plaintiff’s appeal and the issues raised in her recent submissions . . . are currently
        pending before the Second Circuit, with the case calendared for 1/21/2014.
        Accordingly, the Second Circuit has jurisdiction over the issues raised in plaintiff’s

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        submissions, and this court will wait for the decision of the Second Circuit before
        entering an order to [distribute] funds from the Settlement Amount.

App. 88. On January 2, 2014, Zhao appealed the order.

        On January 24, 2014, we affirmed the District Court’s fee award to Warnock. See Zhao v.
Warnock, 551 F. App’x 18 (2d Cir. 2014). On June 18, 2014, the District Court directed that the
settlement proceeds be distributed to Zhao and Warnock.

         We now consider Zhao’s appeal from the District Court’s December 18, 2013 text order. We
construe the motions considered in that order to have been brought under Federal Rule of Civil
Procedure 60(b), which provides for relief from a final judgment, order, or proceeding. We review
orders concerning Rule 60(b) motions for abuse of discretion. See Transaero, Inc. v. La Fuerza Aerea
Boliviana, 162 F.3d 724, 729 (2d Cir. 1998); see also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008)
(explaining the term of art “abuse of discretion” as including errors of law).1

         Because we conclude that the District Court erred, we vacate its December 18, 2013 text
order and remand for further proceedings. Although the District Court’s order was less than clear,
we construe it as a denial of Zhao’s motions on the ground that the pending fee appeal divested the
District Court of jurisdiction to consider Rule 60(b) motions. However, even after an appeal is filed,
a “district court can entertain and deny” a Rule 60(b) motion. See Toliver v. County of Sullivan, 957 F.2d
47, 49 (2d Cir. 1992). More importantly, Zhao’s motions challenged both the settlement agreement
and the fee award, and only the fee award was on appeal. The filing of a notice of appeal only
“divests the district court of its control over those aspects of the case involved in the appeal.” Griggs
v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). Because the fee appeal did not give us
jurisdiction to consider the settlement agreement, the District Court retained jurisdiction over a
motion seeking to vacate the settlement. See New York State Nat’l Org. for Women v. Terry, 886 F.2d
1339, 1350 (2d Cir. 1989) (“[W]e have held that the filing of a notice of appeal only divests the
district court of jurisdiction respecting the questions raised and decided in the order that is on
appeal.”).

        According to defendants, even if the District Court erred, we should nonetheless affirm the
denial of Zhao’s motions on timeliness grounds. See Fed. R. Civ. P. 60(c)(1) (stating that a motion
“must be made within a reasonable time”). Here, Zhao’s motions were filed in December 2013,
roughly 35 months after the January 2011 settlement. We previously ruled that a 26-month delay
was “patently unreasonable . . . absent mitigating circumstances.” Kellogg v. Strack, 269 F.3d 100, 104



        1
         The District Court’s order arguably implied that it would revisit Zhao’s motions once the
appeal from the fee order was decided; however, more than a year after the settlement proceeds
were distributed, the District Court has yet to revisit Zhao’s motions. Therefore, for jurisdictional
purposes, we treat the District Court’s order as final. See 28 U.S.C. § 1291.
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(2d Cir. 2001); see also Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995) (motion filed 18 months
after judgment was not filed within a reasonable time).

         We decline in the first instance to assess whether Zhao’s delay here was justified by
mitigating circumstances.2 On remand, the District Court is directed to assess whether Zhao’s
motions were timely under Rule 60(c) and, if so, whether the motions assert any valid grounds for
relief under Rule 60(b).3

        The District Court is thus directed to assess in the first instance whether Zhao’s motions
assert any valid grounds for relief under Rule 60(b), and whether these motions were timely under
Rule 60(c).

        We, of course, take no position on the merits, or lack thereof, of Zhao’s motions.

                                           CONCLUSION

     For the reasons stated above, the December 18, 2013 order of the District Court is
VACATED and the cause REMANDED for further proceedings.




                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




        2
          Defendants assert that Zhao’s motions raise arguments under only one of Rule 60(b)’s
specific clauses—“‘mistake, inadvertence, surprise, or excusable neglect’ under [subsection] (1).” See
Defendants’ Br. 21. Motions under this clause, as well as under subsections (2) and (3), must be
filed “no more than a year after the entry of the judgment or order.” See Rule 60(c)(1). We
conclude, however, that Zhao’s motions at least arguably raise claims that “the judgment is void,”
under subsection (4), or claims that fit within subsection (6), which states that a court may set aside a
final judgment for “any other reason that justifies relief.”
        3
          Defendants assert that we have already rejected the arguments raised in Zhao’s motions.
We have not. In the fee appeal, we ruled that Zhao discharged Warnock without cause and that
there was no showing that the district judge and magistrate judge were biased. Zhao, 551 F. App’x at
19. We have not yet had occasion, however, to address the validity of the settlement, which is the
principal issue raised by Zhao’s motions.
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