# Salamone v. Douglas Marine Corporation

> District Court, N.D. New York · January 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10314416

## Case

- **Court:** District Court, N.D. New York
- **Decided:** January 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10314416

## How later opinions describe it (automated extraction)

- holding that the defendants could not obtain relief under Rule 60(b)(4) because, "by appearing, litigating, and then intentionally withdrawing from the proceedings," the defendants "submitted to the jurisdiction of the district court" and "forfeited their jurisdictional defense"
- holding that the defendant could not qualify for relief under Rule 60(b)(4) because the defendant "submitted to the court's personal jurisdiction by participating in the litigation"
- holding that "fraud on the court involves 'far more than an injury to a single litigant'"

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KENNETH E. SALAMONE and
RUFSTR RACING, LLC,
Plaintiffs,
vs. 1:19-CV-01213
(MAD/DJS)
DOUGLAS MARINE
CORPORATION,
Defendant.
____________________________________________
APPEARANCES: OF COUNSEL:
LIPPES MATHIAS, WEXLER, LEIGH A. HOFFMAN, ESQ.
FRIEDMAN LLP JASON A. LITTLE, ESQ.
54 State Street, Suite 1001 JONATHAN D. DEILY, ESQ.
Albany, New York 12207
Attorneys for Plaintiffs
HARRIS, BEACH LAW FIRM ELLIOT A. HALLAK, ESQ.
677 Broadway, Suite 1101 DANIEL R. LECOURS, ESQ.
Albany, New York 12207
Attorneys for Defendant
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiffs, Kenneth E. Salamone and RUFSTR Racing, LLC ("RUFSTR"), commenced
this action on September 30, 2019, alleging causes of action including deceptive business
practices, breach of contract, unjust enrichment, fraud, conversion, promissory estoppel, and
breach of the implied covenant of good faith and fair dealing. See Dkt. No. 1. On December 15,
2020, the Court denied a motion by Plaintiffs for partial summary judgment. See Dkt. No. 39.
On April 22, 2021, after a four-day trial, the jury entered a verdict in Plaintiffs' favor for
$131,171.00 in damages. See Dkt. Nos. 64, 67. On August 23, 2021, the Court granted a motion
by Plaintiffs to alter the judgment and granted-in-part a motion by Plaintiffs for a bill of costs.
See Dkt. No. 87. The Court issued an amended judgment in the amount of $451,500.00 in
damages and $3,970.60 in costs. See Dkt. No. 88. Currently before the Court is Defendant's
motion to set aside the amended judgment pursuant to Rule 60(b)(3) and (4) of the Federal Rules
of Civil Procedure. See Dkt. No. 99.1 For the reasons that follow, Defendant's motion is denied.
II. BACKGROUND
The Court assumes the parties' familiarity with the facts and records of this proceeding,

and references it here only as necessary to explain this decision. On October 31, 2019, shortly
after the commencement of this action, Defendant submitted a pre-motion letter2 requesting a
conference and permission to file a pre-answer motion to dismiss Plaintiffs' complaint for lack of
personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure. See Dkt. No. 8.
In the letter, Defendant asserted that—because Plaintiff "Salamone's residence in New York [wa]s
the only connection between the transactions giving rise to the claims in this case and the State of
New York"—New York's long arm statute, C.P.L.R. § 302, was not satisfied and the exercise of
personal jurisdiction over it would violate due process and fail to comport with notions of fair
play and substantial justice. Id. at 1. In response, Plaintiffs submitted a letter asserting that

Defendant had "contracted with a New York customer and afforded that New York customer with
a 35% dealer discount because this transaction was arranged through Performance Marine in
Bolton Landing, New York. Any assertions to the contrary are simply belied by the actual
contract." Dkt. No. 9 at 1. Plaintiffs' letter suggested that Defendant was "attempting to further

1 The parties filed separate notices of appeal on May 24, 2021. See Dkt. Nos. 75, 77.
Those appeals are being held in abeyance pending the determination on this motion. See Dkt. No.
102.
2 See section 2(A)(i) of this Court's Individual Rules and Practices.
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delay answering for its actions by raising a jurisdictional argument that on its face [wa]s untrue."
Id.
The Court began the resulting pre-motion conference by stating:
The reason I asked you to call in pursuant to my practice is I'm
always looking at early motions to see if there's anything that I can
do to, you know, possibly do away with the need for a motion. In
the years that I've been on the bench, I've realized how much time
we lose in the prosecution of a case when early motions are made.

Having said that, I keep a very open mind when motions are made.
Nothing I say during this phone conference should be taken as an
indication as to how I would rule on a motion. I honestly wait until
I get the entire packet, I read the entire packet and then I make a
ruling.
Dkt. No. 99-5 at 3. The conference then proceeded, and Defendant reiterated its argument that
there was no basis for personal jurisdiction over it and that "the suggestion that there was a dealer
in New York that was involved in this transaction is just completely incorrect." Id. at 6.
Plaintiffs, in turn, asserted that "this [was]n't so much a legal question then as it [wa]s a factual
one" and that "[t]he dealer, Performance Marine, was intimately involved in this boat order." Id.
at 7. Plaintiffs' counsel asserted that they did not "haphazardly" plead the existence of a dealer;
but rather had "investigated . . . very thoroughly" and personally spoke to Jason Saris, co-owner
of the alleged dealer Performance Marine, "on multiple occasions." Id. at 9.
After hearing the parties' arguments, the Court stated:
I have no reason and no information to disbelieve either of you and
I know that you're being genuine in what you're telling me, so at
this point, all I can say is I would like to get this resolved ASAP so
that, you know, we know one way or the other.
* * *
What I would ask is that, [Defendant], after I conclude this phone
conference, doesn't have to be right now, but at some point, you
have a phone conference with [Plaintiffs] and further discuss what it
is that [Plaintiffs have] told me during the phone conference.
* * *
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If, after those discussions, you still believe ... that a motion is
necessary under 12(b)(2) for lack of personal jurisdiction, I'll give a
date to have it filed by and then I'll put the briefing schedule on the
docket for the opposition and for the reply.
Id. at 9-11. The parties raised further questions concerning jurisdictional discovery and setting a
date by which to file a potential motion, and the Court eventually responded:
I'll give sufficient time to get it filed if you're going to go ahead, but
by ... all means, get together and you know, talk about these issues.
Obviously, on a motion like this, if there are questions of fact, I
don't think I need to be too—you don't have to be too imaginative to
know at this stage what a judge is going to have to do with it. So,
before you spend your clients' time and money, talk a little bit. If
there's a bona fide reason to make this motion, go ahead and make
it, but talk first.
Id. at 13. The conference concluded soon thereafter.
Defendant did not thereafter attempt to file a pre-answer motion to dismiss. Instead, it
filed an answer on December 11, 2019. See Dkt. No. 10. In its answer, Defendant denied that the
Court had personal jurisdiction over it and asserted lack of personal jurisdiction as an affirmative
defense. See id. at 3-4, 29. On October 1, 2020, Plaintiffs moved for partial summary judgment
on their causes of action for breach of contract, conversion, and breach of the implied covenant of
good faith and fair dealing. See Dkt. No. 31. Defendant opposed the motion and asserted, in its
preliminary statement, that "the Court should evaluate Plaintiffs' version of the facts with serious
skepticism" because,
[i]n one of the first filings of this case, [Defendant] sought
permission to file a motion to dismiss for lack of personal
jurisdiction . ... In response, Plaintiffs argued that personal
jurisdiction exists in this District because there was a dealer for the
boat in Bolton Landing, New York. Based upon that false
representation to the Court, and the Court's suggestion that it was
not likely to dismiss the matter for personal jurisdiction if there was
a dispute regarding whether there was a New York dealer involved
in the transaction, [Defendant] was persuaded not to file a motion to
dismiss for lack of personal jurisdiction at that time. ... Plaintiffs'
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prior representations to this Court in order to secure this Court's
jurisdiction, which they now acknowledge are untrue but have
never corrected, demonstrate that any statement by Plaintiffs
purporting to represent facts are subject to credibility
determinations that cannot be decided on a summary judgment
motion.
Dkt. No. 33 at 10-11. Defendant also asserted, in its sur-reply on the same motion, that "it is now
clear that personal jurisdiction never existed in this action." Dkt. No. 38 at 3. Defendant did not,
however, request a dismissal for lack of personal jurisdiction or make a cross motion to that
effect. Instead, Defendant asked only that "Plaintiffs' motion for partial summary judgment ... be
denied in its entirety." Id. at 30. Ultimately, the Court denied Plaintiffs' motion. See Dkt. No.
39.
No motions relevant to the issue of personal jurisdiction were filed in the months leading
up to the trial. The parties did, however, file a joint pre-trial stipulation stating that "[t]here was
no contract or financial relationship between [Defendant] and Jason Saris or his company,
Performance Marine[,] relative to the boat." Dkt. No. 43 at 4. The trial proceeded and, at the
close of evidence, Plaintiffs moved "under Rule 50(a) to strike as a matter of law ... the
affirmative defenses asserted in the answer." Dkt. No. 99-16 at 4. The parties specifically
addressed a number of Defendant's affirmative defenses, but not the one concerning personal
jurisdiction. See id. at 4-6. At the subsequent charge conference, the Court ruled that it was
denying Plaintiffs' motion. See Dkt. No. 99-17 at 7. The Court also ruled that, "[t]o the extent
that [D]efendant[] [has] not proven these defenses at trial or given proposed jury instructions
encompassing these defenses, they [were] being waived at this time." Id. The jury then began
deliberation and ultimately issued a verdict in Plaintiffs' favor. See Dkt. No. 67. Defendant did
not raise the issue of personal jurisdiction in response to Plaintiffs' post-judgment motions to alter
the judgment and for a bill of costs. See Dkt. Nos. 83, 85.
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Defendant now moves to set aside the amended judgment (1) under Rule 60(b)(3) and
(d)(3) of the Federal Rules of Civil Procedure on the ground that the amended judgment "was
procured by fraud, misrepresentation, and/or misconduct of Plaintiffs ... including fraud on the
Court"; and (2) under Rule 60(b)(4) of the Federal Rules of Civil Procedure on the ground that the
amended judgment "is void for lack of personal jurisdiction over Defendant." Dkt. No. 99-18 at
5. In opposition, Plaintiffs argue that "Defendant has failed to meet its burden to prove fraud or
failure of personal jurisdiction for the Court to set aside the [a]mended [j]udgment under Rule

60(b)(3) and (4)." Dkt. No. 100-2 at 5. Plaintiffs also request, in cursory fashion, an award of
sanctions "in the form of attorney's fees to Plaintiffs in the amount of $7,500.00." Id. at 13.
III. DISCUSSION
A. Rule 60(b)(3) and Rule 60(d)(3).
Defendant argues that Plaintiffs' "affirmative misrepresentations at the Pre-Motion
Conference" and "subsequent misleading omissions" in the motion for partial summary judgment
"constitute fraud for purposes of Rule 60(b)." Dkt. No. 99-18 at 18. Defendant argues that this
fraud "prevented [it] from fully and fairly presenting its personal jurisdiction defense" at every

stage of this action. Id. at 14. At the motion to dismiss stage, Defendant alleges that it refrained
from making a motion because "any motion would have been an exercise in futility given the
falsehoods being perpetuated by Plaintiffs" and "the Court's statements during the [p]re-[m]otion
[c]onference suggest[ed] that any questions of fact regarding whether there was a New York
dealer involved in the transaction would result in denial of a motion to dismiss." Id. at 18-19. At
the summary judgment stage, Defendant asserts that it "did not file its own motion on its personal
jurisdiction defense" because of "the vagueness" of Plaintiffs' affidavits and the failure of those
affidavits to "explicitly address[] [the] issue of whether Performance Marine/Saris acted in the

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capacity as a dealer for the transaction." Id. at 19. Defendant further argues that this conduct
constituted a fraud upon the Court under Rule 60(d)(3).
In opposition, Plaintiffs argue that "Defendant has failed to even assert, let alone provide
proof of, the most critical elements of fraud, most significantly, that Plaintiffs' counsel made any
representation with knowledge of its falsity; with scienter or an intent to defraud; upon which the
party reasonably relied; and such reliance caused damage to the Defendant." Dkt. No. 100-2 at
11. Instead, Plaintiffs assert, "Defendant only demonstrates that testimony from a witness, Mr.

Saris, was inconsistent with earlier statements made by Plaintiffs' counsel," which fails to meet
"the extraordinary burden of establishing fraud." Id. at 10.
Under Rule 60(b)(3), a district court may relieve a party from a final judgment for "fraud."
Fed. R. Civ. P. 60(b)(3). "[A] Rule 60(b)(3) motion cannot be granted absent clear and
convincing evidence of material misrepresentations." Fleming v. N.Y. Univ., 865 F.2d 478, 484
(2d Cir. 1989). The movant must also "'show that the conduct complained of prevented the
moving party from fully and fairly presenting [their] case.'" State St. Bank and Tr. Co. v.
Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004) (quoting Taylor v. Texgas
Corp., 831 F.2d 255, 259 (11th Cir. 1987)). "These same principles apply when a movant seeks

to set aside a judgment on the basis of fraud on the court." Id. (citing Davenport Recycling
Associates v. C.I.R., 220 F.3d 1255, 1262 (11th Cir. 2000)). "'[F]raud upon the court[,]' as
distinguished from fraud on an adverse party[,] is limited to fraud which seriously affects the
integrity of the normal process of adjudication." King v. First Am. Investigations, Inc., 287 F.3d
91, 95 (2d Cir. 2002) (quoting Gleason v. Jandrucko, 860 F.2d 556, 558 (2d Cir. 1988)).
Even assuming that Plaintiffs' statements at the November 2019 pre-motion conference
constituted material misrepresentations, Defendant had a full and fair opportunity to move for

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summary judgment on its personal jurisdiction defense or raise the issue at trial. Instead, it
vigorously litigated this action through a jury verdict and a post-judgment motion without ever
making an affirmative motion for relief on its personal jurisdiction defense. Defendant asserts
that "Plaintiffs' representations and omissions were not exposed as fraudulent until [Saris'
testimony at] the trial." Dkt. No. 99-18 at 20. However, in response to Plaintiffs' motion for
partial summary judgment—six months before the trial began—Defendant clearly stated its belief
that Plaintiffs had "acknowledge[d]" that their previously asserted grounds for personal

jurisdiction were "untrue" and that "there was never any dealer involved in [the sale of the] boat."
Dkt. No. 33 at 11. Indeed, Defendant went as far as declaring that, "[b]ased upon these admitted
facts, it is now clear that personal jurisdiction never existed in this action." Dkt. No. 38 at 3.
Defendant's assertion that it was somehow prevented from making a motion for summary
judgment on its personal jurisdiction defense because Plaintiffs' affidavits in support of its
summary judgment motion failed to "explicitly address[]" this issue defies belief. Dkt. No. 99-18
at 19. Defendant is a sophisticated party represented by experienced counsel and had abundant
opportunity to depose Saris on this issue.
Defendant's claim of fraud upon the court fails for the same reason. See State St. Bank

and Tr. Co., 374 F.3d at 176 (holding that a movant must show that the conduct complained of
prevented them from fully and fairly presenting their case to set aside a judgment on the basis of
fraud on the court). Additionally, the fraud alleged here is not of the type that "threatens the very
integrity of the judiciary and the proper administration of justice." Gleason v. Jandrucko, 860
F.2d 556, 559 (2d Cir. 1988) (holding that "fraud on the court involves 'far more than an injury to
a single litigant'") (quotation omitted); see also Azkour v. Little Rest Twelve, No. 10-CV-4132,
2017 WL 1609125, *8 (S.D.N.Y. Apr. 28, 2017) ("[B]ribery of a judge, jury tampering, or

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retention of an attorney 'for the purpose of influencing a judge are examples of fraud upon the
Court,' but 'nondisclosure during pretrial discovery,' 'after-discovered evidence of alleged perjury
by a witness,' and the existence of 'other fabricated evidence' are insufficient") (quotation
omitted).
Accordingly, the portion of Defendant's motion seeking to set aside the amended
judgment under Rule 60(b)(3) and (d)(3) of the Federal Rules of Civil Procedure is denied.
B. Rule 60(b)(4)

Defendant argues that the amended judgment has been rendered void under Rule 60(b)(4)
because "Saris' testimony at trial unequivocally established the truth ... that there is no basis for
personal jurisdiction over Defendant." Dkt. No. 99-18 at 11. Defendant also argues that it "fully
preserved its defense of the lack of personal jurisdiction" by "continually rais[ing] this Court's
lack of jurisdiction." Id. at 14. Defendant claims that it, in fact, "never submitted itself to the
jurisdiction of this Court, but rather was forced into litigating in this Court based upon perpetual
misrepresentations by Plaintiffs" and "the Court's comments that it would not dismiss a case for
lack of jurisdiction where there [we]re disputed jurisdictional facts." Id. at 14-15. In opposition,
Plaintiffs argue that Defendant purposely waived or inadvertently forfeited its personal

jurisdiction defense by participating in the Uniform Pretrial Scheduling Order, discovery
demands, scheduled depositions, mandatory mediation, a full trial, and a post judgment motion,
without ever litigating the defense. See Dkt. No. 100-2 at 5-9.
Rule 60(b)(4) of the Federal Rules of Civil Procedure provides an avenue for relief from a
final judgment when "the judgment is void." A judgment is void under Rule 60(b)(4) if the court
that rendered it lacked personal jurisdiction over the parties. See City of New York v. Mickalis
Pawn Shop, LLC, 645 F.3d 114, 138 (2d Cir. 2011). Defendant bears "the burden of establishing

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lack of personal jurisdiction" under Rule 60(b)(4). "R" Best Produce, Inc. v. DiSapio, 540 F.3d
115, 126 (2d Cir. 2008). Where an "'underlying judgment is void, it is a per se abuse of discretion
for a district court to deny a movant's motion to vacate the judgment under Rule 60(b)(4).'" Irvin
v. Harris, 944 F.3d 63, 68 (2d Cir. 2019) (quotation omitted). "Indeed, Rule 60(b)(4) 'is unique ...
because relief is not discretionary and a meritorious defense is not necessary." Id. (quoting
Covington Indus., Inc. v. Resintex A.G., 629 F.2d 730, 733 n.3 (2d Cir. 1980)).
Here, the Court did not lack personal jurisdiction over Defendant at the time the judgment

and amended judgment were rendered. Even assuming that there were no grounds for personal
jurisdiction over Defendant at the inception of this action, Defendant submitted to the Court's
personal jurisdiction and forfeited its affirmative defense due to its extensive participation in this
litigation. See Newcard, Inc. v. Van Dijke, 137 Fed. Appx. 384, 386 (2d Cir. 2005) (holding that
the defendant could not qualify for relief under Rule 60(b)(4) because the defendant "submitted to
the court's personal jurisdiction by participating in the litigation"); see also Mickalis Pawn Shop,
LLC, 645 F.3d at 139 (holding that the defendants could not obtain relief under Rule 60(b)(4)
because, "by appearing, litigating, and then intentionally withdrawing from the proceedings," the
defendants "submitted to the jurisdiction of the district court" and "forfeited their jurisdictional

defense"). As addressed above, Defendant knew that "personal jurisdiction never existed in this
action," at the latest, when Plaintiffs moved for partial summary judgment. Dkt. No. 38 at 3.
Defendant thereafter had several clear opportunities to make a motion for resolution of its
personal jurisdiction defense, but did not. Instead, Defendant chose to litigate this case to a
conclusion on the merits—including opposing a post-trial motion to alter the verdict—without
ever requesting the relief it now asserts it is entitled too. Thus, the Court concludes that
Defendant had forfeited its personal jurisdiction affirmative defense by the time the judgment and

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amended judgment were rendered. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir.
1999) (considering the "passage of time," "the litigation activity that occurred," and "the
opportunities to litigate the jurisdictional issue that were forgone" before holding that the
defendant forfeited its personal jurisdiction defense); see also Roberts v. Bennaceur, 658 Fed.
Appx. 611, 617 (2d Cir. 2016).
Accordingly, the portion of Defendant's motion seeking to set aside the amended
judgment under Rule 60(b)(4) of the Federal Rules of Civil Procedure is denied.

C. Plaintiffs' Sanctions Request
In their opposition papers, Plaintiffs include a cursory request for the imposition of
sanctions on Defendant. See Dkt. No. 100 at 7; Dkt. No. 100-2 at 13. However, Plaintiffs
provide no support for their claim that the present motion was "clearly designed to antagonize and
harass Plaintiffs and impugn the credibility of Plaintiffs' counsel," Dkt. No. 100 at 7, and the
Court does not find that Defendant's motion was completely devoid of a factual basis or legal
support.
Accordingly, Plaintiffs' request for sanctions is denied.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion to set aside the amended judgment (Dkt. No. 99) is
DENIED; and the Court further
ORDERS that Plaintiffs' request for sanctions is DENIED; and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT ISSO ORDERED.

Dated: January 12, 2022 J) Le ie (Hpez- le,
Albany, New York Mae A. D’ Agostino”
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314416. Public record. Not legal advice.