      15-153
      Koch v. Pechota
                            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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2    the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3    on the 27th day of January, two thousand sixteen.
 4
 5    PRESENT: GUIDO CALABRESI,
 6             GERARD E. LYNCH,
 7             RAYMOND J. LOHIER, Jr.,
 8                           Circuit Judges.
 9
10    ———————————————————————
11
12    VLADIMIRA KOCH, a/k/a VLADKA KOCH, EUROPA
13    DOCU-SEARCH, INC., EUROVID FKK, HELOIS
14    NATURA, and EUROVID, INC.,
15                               Plaintiffs-Appellants,
16
17    MICHAL KOCH, her son,
18                                       Plaintiff,
19
20                         v.                                         No. 15-153-cv
21
22    VRATISLAV PECHOTA, individually, attorney, and
23    LAW OFFICE OF VRATISLAV PECHOTA, Jr., Esq.,
24
25                                       Defendants-Appellees.
26
27    ———————————————————————
28
29    FOR APPELLANTS:                    Jaromir Kovarik, KTHL Law Offices, P.C., Lebanon,
30                                       Pennsylvania; Andrew Lavoott Bluestone, New York,
31                                       New York.
32
33    FOR APPELLEES:                     William D. Buckley, Gregg D. Weinstock, Garbarini &
34                                       Scher, P.C., New York, New York.
 1          Appeal from the United States District Court for the Southern District of New

 2   York (Robert W. Sweet, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 4   AND DECREED that the judgment of the district court is AFFIRMED.

 5          Plaintiffs-Appellants Vladimira Koch, Europa Docu-Search, Inc., Eurovid FKK,

 6   Helois Natura, and Eurovid, Inc. appeal from the district court’s denial of their motion

 7   under Federal Rule of Civil Procedure 60(b)(2) and 60(b)(3) to vacate its November 21,

 8   2013 order dismissing the complaint with prejudice.1 The plaintiffs challenge the district

 9   court’s subject-matter jurisdiction to rule on the motion to vacate, and further challenge

10   the merits of that ruling. We assume the parties’ familiarity with the underlying facts and

11   procedural history of this case, as well as with the issues on appeal.

12          There is no merit to the plaintiffs’ argument that the district court lacked power to

13   deny the motion to vacate while the plaintiffs’ appeal from the November 21, 2013 order

14   was still pending. While a “district court may grant a rule 60(b) motion after an appeal is

15   taken only if the moving party obtains permission from the circuit court,” it remains free

16   to “entertain and deny the rule 60(b) motion” without such permission. Toliver v. Cty. of

17   Sullivan, 957 F.2d 47, 49 (2d Cir. 1992); see also Fed. R. Civ. P. 62.1(a) (“If a timely

18   motion is made for relief that the court lacks authority to grant because of an appeal that



            1
            On January 7, 2015, we affirmed the November 21, 2013 order and the ensuing
     judgment in favor of the defendants. See Koch v. Pechota, 588 F. App’x 72 (2d Cir.
     2015).

                                                   2
 1   has been docketed and is pending, the court may . . . (2) deny the motion . . . .”). We are

 2   aware of no authority for the proposition that this rule does not apply when one of the

 3   orders on appeal is the denial of a recusal motion.

 4          We review the merits of a district court’s decision on a Rule 60(b) motion for

 5   abuse of discretion. In re Terrorist Attacks on Sept. 11, 2001, 741 F.3d 353, 357 (2d Cir.

 6   2013). A court abuses its discretion when its decision (1) “rests on an error of law or a

 7   clearly erroneous factual finding; or (2) cannot be found within the range of permissible

 8   decisions.” Id.

 9          The district court did not abuse its discretion in denying the motion under Rule

10   60(b)(2), which permits a district court to relieve a party from a final judgment or order if

11   the movant adduces “newly discovered evidence that, with reasonable diligence, could

12   not have been discovered in time to move for a new trial under Rule 59(b).” To warrant

13   relief under Rule 60(b)(2), the evidence must concern facts of which the movant was

14   “justifiably ignorant . . . despite due diligence,” and “must not be merely cumulative or

15   impeaching.” United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001).

16   The plaintiffs submitted a new report by Dr. Wybitulová as evidence that the questioning

17   of Koch at her deposition triggered a deterioration of her condition. However, the

18   plaintiffs repeatedly brought that allegation to the district court’s attention before the

19   November 21, 2013 order was entered, including in an earlier report by Dr. Wybitulová.

20   The new report thus does not meet the requirements for “newly discovered evidence”

21   under Rule 60(b)(2).

                                                    3
 1          Nor did the district court abuse its discretion in denying the motion under Rule

 2   60(b)(3), which permits vacatur on the basis of “fraud (whether previously called intrinsic

 3   or extrinsic), misrepresentation, or misconduct by an opposing party.” A movant seeking

 4   Rule 60(b)(3) relief must produce “clear and convincing evidence” of the alleged fraud or

 5   misconduct. Fleming v. N.Y. Univ., 865 F.2d 478, 484 (2d Cir. 1989). Dr. Wybitulová’s

 6   new report does not meet that standard, because Dr. Wybitulová simply states that she

 7   “cannot rule out the possibility that Ms. Koch’s health was damaged intentionally.” J.A.

 8   443. In any event, a mental health professional who examined Koch would have no basis

 9   to opine on the intentions of third parties. Given that relevant extracts of the transcript of

10   Koch’s deposition were already before the district court, we fail to see how Dr.

11   Wybitulová’s medical report could shed any additional light on whether the defendants’

12   counsel’s questioning of Koch at that deposition constituted misconduct under Rule

13   60(b)(3).

14          We have considered the plaintiffs’ remaining arguments and find them to be

15   without merit. Accordingly, we AFFIRM the judgment of the district court. The

16   plaintiffs’ motions for sanctions are DENIED, and their motion for judicial notice is

17   DENIED as moot.

18
19
20                                       FOR THE COURT:
21                                       CATHERINE O’HAGAN WOLFE, Clerk of Court
22
23



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