09-1199-cv
Bahrami v. Ketabchi


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

R U LIN GS BY SU M M A R Y O RD ER D O N OT H AVE PR EC ED EN TIA L EFFEC T . C IT A TIO N T O A SU M M A R Y O R D ER F IL ED O N O R
A FTER J AN UA RY 1, 2007, IS PERM ITTED AN D IS GOVERNED BY F EDER AL R U L E O F A PPELLATE P RO CED UR E 32.1 A N D
TH IS C OU R T ’ S L OC AL R ULE 32.1.1. W H EN C ITIN G A SU M M A R Y O RD ER IN A DO CU M EN T FILED W ITH TH IS C OU R T , A
PAR TY M UST CITE EITHER THE F EDER AL A PPEND IX OR A N ELECTRONIC DATABASE ( W ITH TH E N OTA TIO N “ SU M M A R Y
OR DER ”). A PAR TY CITING A SUM M AR Y ORD ER M UST SERVE A C OPY OF IT ON A NY PA RTY N O T R EP R ES EN TED BY
CO UN SEL .


        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 11th day
of , February, two thousand ten.

PRESENT:
            GUIDO CALABRESI,
            ROBERT A. KATZMANN,
                      Circuit Judges,
            DENNY CHIN,*
                      District Judge.
_______________________________________________

Irandokht Bahrami,

                                         Plaintiff-Counter-Defendant-
                                         Cross-Defendant-Counter-Claimant-
                                         Appellant,
                      v.                                                                    No. 09-1199-cv

Mohammad Ali Saadat Ketabchi, also known as Mohammad
Saadat Ketabchi, also known as Mohammad Ketabchi, also
known as Homayoun Saadat Ketabchi, also known as Homayoun
Ketabchi,

                        Defendant-Counter-Claimant-
                        Counter-Defendant-Appellee.
______________________________________________



          *
       The Honorable Denny Chin, of the United States District Court for the Southern District
of New York, sitting by designation.
For Appellant:                                         IRANDOKHT BAHRAMI, pro se,
                                                       New York, N.Y.

For Appellee:                                          JACK S. DWECK, The Dweck Law
                                                       Firm LLP, New York, N.Y.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Berman, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Irandokht Bahrami, pro se, appeals from the judgment of the United States

District Court for the Southern District of New York (Berman, J.), dismissing her state law

sexual assault and rape claim. We assume the parties’ familiarity with the facts, procedural

history, and issues on appeal.

       In reviewing the district court’s decision in a bench trial, we review the district court’s

conclusions of law de novo and its findings of fact for clear error. See United States v. Coppola,

85 F.3d 1015, 1019 (2d Cir. 1996). Under the clearly erroneous standard, “‘[t]here is a strong

presumption in favor of a trial court’s findings of fact if supported by substantial evidence,’” and

the Court “will not upset a factual finding unless [it is] ‘left with the definite and firm conviction

that a mistake has been committed.’” Travellers Int’l, A.G. v. Trans World Airlines, Inc., 41 F.3d

1570, 1574 (2d Cir. 1994) (citations omitted). Moreover, this Court must “give considerable

deference to the district court’s credibility assessments and to its determination as to what

inferences should be drawn from the evidence in the record.” Ezekwo v. N.Y.C. Health & Hosps.

Corp., 940 F.2d 775, 780 (2d Cir. 1991).




                                                  2
       Here, the burden was on Appellant to prove by a preponderance of the evidence that the

alleged rape occurred. See Dean v. Raplee, 39 N.E. 952, 954 (N.Y. 1895). Because the district

court’s findings are supported by substantial evidence, Appellant has not satisfied the high

burden of showing that the court’s findings were “clearly erroneous.” See Travellers Int’l, A.G.,

41 F.3d at 1574.

       Appellee has moved to strike certain portions of Appellant’s appendix on appeal,

contending that the documents were not admitted into evidence or considered by the district

court. We DENY the motion with regard to the September 2005 letter submitted by Appellant’s

former attorney to Magistrate Judge Kevin Fox, as that letter was docketed on the district court’s

docket sheet and was part of the record on appeal. We GRANT the remaining portions of

Appellee’s motion.

       To the extent that Appellant argues that the judgment below depended on fraud in the

form of fabricated telephone records, such relief should be sought in a motion in the distirct court

under Fed. R. Civ. P. 60(b)(3), rather than as part of this appeal. Rule 60(b)(3) provides that,

“[o]n motion and just terms, the court may relieve a party . . . from a final judgment, order, or

proceeding for . . . fraud . . . , misrepresentation, or misconduct by an opposing party.” Any such

motion must be filed “no more than a year after the entry of the judgment,” Fed. R. Civ. P.

60(c)(1); accordingly, in this case, a motion would need to be filed no later than March 4, 2010.

Of course, we express no opinion on the merits of this issue.

       We have reviewed Appellant’s remaining arguments and find them to be without merit.

For the reasons stated above, the judgment of the district court is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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