10-4966-cv
Esposito v. State of New York

                 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 2nd day of November, two thousand eleven.

PRESENT:
             AMALYA L. KEARSE,
             PIERRE N. LEVAL,
             DENNY CHIN,
                       Circuit Judges.
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LUISA C. ESPOSITO,
                          Plaintiff-Appellant,

                   -v.-                                       10-4966-cv

THE STATE OF NEW YORK, THE OFFICE OF COURT
ADMINISTRATION OF THE UNITED COURT SYSTEM,
THOMAS J. CAHILL, in his official capacity,
THOMAS J. CAHILL, in his individual capacity,
NAOMI GOLDSTEIN, in her official capacity,
NAOMI GOLDSTEIN, in her individual capacity,
ALBERT S. BLINDER, in his official capacity,
ALBERT S. BLINDER, in his individual capacity,
HARVEY GLADSTEIN & PARTNERS LLC, formerly
known as Gladstein & Isaac,
ALLEN H. ISAAC, individually,
ALLEN H. ISAAC, as a partner of Harvey
Gladstein & Partners LLC f/k/a/ Gladstein
& Isaac, THE CITY OF NEW YORK, RAYMOND KELLY,
ROBERT ARBUISO, in his official and individual
capacity, ADAM LAMBOY, in his official and
individual capacity, JANE AND JOHN DOES,
ARTHUR POLLACK, CONRAD POLLACK, individually
and as a partner of Pollack, Pollack, Isaac
& DeCicco, LLP, BRIAN J. ISAAC, individually
and as a partner of Pollack, Pollack, Isaac
& DeCicco, LLP, POLLACK, POLLACK, ISAAC &
DECICCO, LLP,
                    Defendants - Appellees,

JOHN DOES, JANE DOES, GLADSTEIN & ISAAC, JANE
AND JOHN DOES, FRED DECICCO,
                    Defendants.
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FOR PLAINTIFF-APPELLANT:            LUISA C. ESPOSITO, Pro Se, West
                                    Hempstead, New York.

FOR DEFENDANTS-APPELLEES:           MICHAEL A. CARDOZO (Edward F.X.
                                    Hart, Philip S. Frank, Tahirih M.
                                    Sadrieh, on the brief), New York
                                    City Law Department, New York, New
                                    York, for the City of New York,
                                    Raymond Kelly, Robert Arbuiso, and
                                    Adam Lamboy.

                                    DOUGLAS S. LANGHOLZ, Morgan
                                    Melhuish Abrutyn, New York, New
                                    York, for Arthur Pollack, Conrad
                                    Pollack, Brian J. Isaac, and
                                    Pollack, Pollack, Isaac & DeCicco,
                                    LLP.

                                    TRAYCEE ELLEN KLEIN, Epstein Becker
                                    & Green, P.C., New York, New York,
                                    for Harvey Gladstein & Partners,
                                    LLC.


                                    DIANE KREBS, Gordon & Rees, LLP,
                                    New York, New York, for Allen H.
                                    Isaac.

                                    ERIC T. SCHNEIDERMAN, Attorney
                                    General of the State of New York,
                                    (Barbara D. Underwood, Solicitor
                                    General, Alison J. Nathan, Special
                                    Counsel, Patrick J. Walsh,
                                    Assistant Solicitor General of
                                    Counsel, on the brief), Office of
                                    the Attorney General of the State
                                    of New York, New York, New York,
                                    for the State of New York, Office
                                    of Court Administration of the
                                    United Court System, Thomas J.
                                    Cahill, Naomi Goldstein, and Albert
                                    S. Blinder.

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            Appeal from the United States District Court for the

Southern District of New York (Scheindlin, J.).
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the orders of the district court, dated

September 17, October 25, and November 3, 2010, are AFFIRMED.

            We assume the parties' familiarity with the underlying

facts and the issues on appeal.    The district court dismissed

plaintiff-appellant Luisa Esposito's action, along with five

other related cases, on August 8, 2008.1   See Esposito v. State

of New York, No. 07 Civ. 11612 (SAS), 2008 WL 3523910 (S.D.N.Y.

Aug. 8, 2008).    Esposito filed a motion for reconsideration

pursuant to Federal Rule of Civil Procedure ("Rule") 60(b), which

the district court denied on August 28, 2008.    Order, Esposito v.

State of New York, No. 07 Civ. 11612 (SAS) (S.D.N.Y. Aug. 28,

2008).   On September 2, 2008, Esposito filed a notice of appeal

of both the district court's dismissal of her claims and its

denial of her Rule 60(b) motion.    This Court affirmed both

rulings.    Esposito v. New York, 355 Fed. Appx. 511 (2d Cir.

2009).

            On September 1, 2010, Esposito moved in the district

court to reopen pursuant to Rule 60(b).    The district court

denied the motion in its memorandum opinion and order of October

25, 2010.    Esposito v. State of New York, No. 07 Civ. 11612


     1
          The district court did not enter a separate judgment
dismissing Esposito's action. When a judgment is required to be
set out in a separate document but is not, judgment is deemed to
be entered 150 days after the entry of the dispositive order.
Fed. R. Civ. P. 58(c)(2)(B).

                                  -3-
(SAS), 2010 WL 4261396 (S.D.N.Y. Oct. 25, 2010).    The district

court also issued orders, dated September 17, 2010, and November

3, 2010, respectively, denying Esposito's motion to disqualify

the Office of the New York State Attorney General from

representing the state defendants and Esposito's motion to strike

the district court's memorandum opinion and order.    Esposito now

appeals.

           We affirm, substantially for the reasons stated by the

district court.   First, the motion to reopen was time barred.

Although Esposito stated that her motion was brought under Rule

60(b)(6), it was in fact a 60(b)(2) motion, as the motion was

based on purportedly new evidence.    Rule 60(c)(1), however,

provides that motions under, inter alia, Rule 60(b)(2) must be

brought "no more than a year after the entry of the judgment or

order or the date of the proceeding."    Regardless of whether the

one-year period for filing the Rule 60(b)(2) motion ran from the

date of the order dismissing Esposito's suit (August 8, 2008),

the date of the denial of the motion for reconsideration (August

28, 2008), the date on which Esposito filed her notice of appeal

(September 2, 2008), or the date that judgment was deemed to be

entered (150 days after entry of the order constituting the

judgment), Esposito's motion was untimely.

           Second, even assuming that Esposito's motion could have

been construed as a timely 60(b)(6) motion, the district court

did not abuse its discretion in denying the motion on the merits.

The new evidence she presented did not meet the high threshold

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required with respect to a Rule 60(b) motion.   See Ruotolo v.

City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (stating that

Rule 60(b) motions request "extraordinary judicial relief" and

are generally granted only in "exceptional circumstances").

Although Esposito's newly presented evidence lent credence to her

factual claims, the district court had presumed all of Esposito's

factual allegations were true when it dismissed Esposito's

complaint on multiple legal grounds.    See Esposito v. State of

New York, No. 07 Civ. 11612 (SAS), 2008 WL 3523910 (S.D.N.Y. Aug.

8, 2008).

            Third, the district court properly rejected Esposito's

attempt to assert a claim under the Violence Against Women Act

("VAWA"), Pub. L. No. 103-322, tit. IV, 108 Stat. 1902-59

(codified in scattered sections of U.S.C.), because there is no

civil private remedy under VAWA.    See United States v. Morrison,
529 U.S. 598 (2000) (holding unconstitutional 42 U.S.C. § 13981,

the section of VAWA providing a civil private remedy).

            Finally, Esposito also argued that the New York State

Attorney General's office should not have been permitted to

represent the state defendants in their individual capacities.

The district court did not abuse its discretion in denying

Esposito's motion to disqualify because Esposito failed "to offer

any reasons for [the] request."    Order, Esposito v. State of New

York, No. 07 Civ. 11612 (SAS) (S.D.N.Y. Sept. 20, 2010).




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          We have considered all of Esposito's contentions on

this appeal and have found them to be without merit.

Accordingly, the orders of the district court are AFFIRMED.

                         FOR THE COURT:

                         CATHERINE O'HAGAN WOLFE, CLERK




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