Petition for Writ of Certiorari — Ford v. New York City Transit Authority

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No. 031525 MAR 1 - 2004

Inthe ve Or THE CLERK

Supreme Court of the Anited States

—_ —<>-<sjKos><-—_—

GLADSTONE FORD,

Petitioner,

-against-

NEW YORK CITY TRANSIT AUTHORITY (NYCTA);

MANHATTAN AND BRONX SURFACE TRANSIT

OPERATING AUTHORITY (Mabstoa); and BARBARA M. ROTH, ESQ.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

GLADSTONE FORD

Petitioner, Pro Se

821 Hancock Street - Apt. #1L

Brooklyn, New York 11233

(718) 573-3052

DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024

1-800-531-2028

QUESTIONS PRESENTED FOR REVIEW

PROCEDURE - FEDERAL STATUTE INTERPRETATION

(1) Is -it within the Scope of Authority or judicial

discretion of the District Court and the 2™ Circuit to refuse to

allow Petitioner to file an independent action pursuant to FRCP

Rule 60(b) to investigate and determine fraud upon the court?

(2) Is it a proper exercise of judicial discretion for the

courts below to convert Petitioner’s fee paid Complaint

pursuant to FRCP Rule 60(b) into a Motion to Reconsider the

judgement in an underlying case (after the expiration of the

period for filing such a motion, und after the Notice of Appeal)

without notice, a hearing, or taking of evidence concerning

whether fraud upon the court had occurred?

(3) Does the explicit behavior of the Respondents

attorney, Barbara Roth, who, inter alia, misrepresents material

factual issues to the District Court and the 2™ Circuit, upon

which those courts rely to dismiss Petitioner’s Complaint, rise

to the level of misconduct (attorney misconduct providing

"special circumstances") such as would warrant relief pursuant

to FRCP Rule 60(b)? :

FRCP RULE 56(e) - SUMMARY JUDGEMENT

(4) Does an Order of the District Court barring further

submissions by a party with a statutory obligation to come

forward with material, disputed facts pursuant to the above rule

constitute a violation of due process and an abuse of discretion?

(5) And, as a corollary, does such an Order (barring

further submissions) insulate from punishment, as a matter of

law, any attorney misconduct that occurs prior to the date of the

Order?

PROCEDURE - FEDERAL STATUTE INTERPRETATION

(6) Is "Clean Hands" or freedom from procedural

defect or default a pre-condition to reporting fraud upon the

court pursuant to FRCP Rule 60(b)?

CONSTITUTIONAL LAW - FULL FAITH AND CREDIT

(7) Is the "Full and Fair Opportunity to Litigate" test

for the attachment of Full Faith and Credit appropriately based

upon a void, default state court judgement?

And, the narrower question is, does a federal Court declaration

that a state court judgement is void require reversal of the state

court proceedings as the 2™ Circuit has ruled? Or, does such

declaration merely prohibit the void judgement from

importation into federal jurisdictions, leaving the state court

proceedings in full force and effect within the state of origin?

CONSTITUTIONAL LAW - EQUAL PROTECTION OF

LAW

(8) Is there a systemic bias in the administration of

Disciplinary Rules in the 2™ Circuit which favors a certain

cadre of attorneys to the disadvantage of others?

PARTIES TO THE PROCEEDING

(a) Petitioner ts an African-American attorney and a

non-practicing member of the United States Supreme Court

Bar.

(b) Respondents New York City Transit Authority

(hereinafter "NYCTA") and Manhattan & Bronx Surface

Operating Authority (hereinafter "Mabstoa") are wholly owned

subsidiaries of the Metropolitan Transit Authority (hereinafter

"MTA") a quasi-governmental agency with transit operating

divisions in each of the five (5) boroughs of the City of New

York.

associated with the TORY law firm in New York City, and

represented NYCTA, Mabstoa, and herself before the District

Court, and the 2™ Circuit in the above captioned action.

Ps Lee MEIC ee ne ane

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..... PAGE 1

RTD cen sas eeesesaneneensrenstss PAGE ili

TABLE OF CONTENTS ..:..--- see rer rece? PAGE iv

TABLE OF AUTHORITIES ......---+--->: .. PAGE vii

TABLE OF STATUTES ...-.---ssecrcrerree PAGE ix

TABLE OF APPENDICES ...-.------++++0> .. PAGE ix

CITATION TO OPINION BELOW .....------: PAGE 1

TEIRISDICTION occ cece cen cecwnrersereaces PAGE 1

STATUTORY PROVISIONS INVOLVED ...... PAGE 2

STATEMENT OF THE CASE .....-----++++°> PAGE 3

US. District Court Civil Action# 98cv4768 -

Ford v. NYCTA and MABSTOA .....-0000000> PAGE 3

US. District Court Civil Action# 00cv3301 -

Ford v. IRS; Dime Savings Bank of NY, etal..... PAGE 6

US. District Court Civil Action# 03cv0869 - Ford v.

NYCTA; MABSTOA; and Barbara Roth, Esq. .... PAGE 9

REASONS FOR GRANTING THE WRIT ...... PAGE 11

si. Serer. FIUTEVUT TTR eee Te ee PAGE 11

Discretion of the Court............0ecceeuees PAGE 11

Limits of District Court’s Exercise of Discretion . PAGE 12

Constitutionally Defective Abuse of Discretion .. PAGE 12

PEGE WO eiG aa ae ok ca eos bene ee ree PAGE 14

Filing of Notice of Appeal as Affecting

Jurisdiction of District Court to Entertain a Motion to

IIE ys 5 ok 005 8000050 ee eee PAGE 14

PNET Oe 6-82 bw ee ore eee PAGE 15

What Constitutes Fraud Upon the Court ........ PAGE 15

Suppression of Evidence ............s+ee000. PAGE 15

Barbara Roth Use of Materials in Her Own

Submissions She Told Federal Courts did not Exist as

a. PRS TN, Quect sn Oy fat fost PAGE 15

Misrepresentation of Facts (Under Oath)........ PAGE 16

Subordination of Perjury ................00-- PAGE 16

Extraordinary Circumstances - Involvement of an

tog gk rrr er rr PAGE 17

"Clean Hands Doctrine" ..................... PAGE 18

Meritorious Claim ......--ccceeeevcereecces PAGE 19

>), eee eereerr re oye ce PAGE 19

Public Policy Considerations/Constitutional

Principles ........ce cc ecceeecceenvereseees PAGE 19

COMET UIGION vccccccvcucccteressaccteres PAGE 22

‘

Vil

TABLE OF AUTHORITIES

Belfi v. Prendergast,

(2 Cor.) 191 Fo0d UFO OD... ok ike page 4

Creswell v. Sullivan & Cromwell,

(2™ Cir.,1990), 922 F2d 60,71 ..........0 cece page 11

Enron Oil Cerp v. Diakuhara,

(2™ Cir.1993), 10 F3rd 90,96 ..............000- page 12

Ford v. American Broadcasting Company, Inc.,

(SDNY, 1983), 101 F.R.D. 664,667;

U.S. Court of Appeals 2™ Circuit, Docket# 83-7797;

Writ of Cert. U.S. Supreme Court, denied ........ page 20

Hadden v. Ramsey,

(2™ Cir. #952), 196 F2d 92) ....... cc ceeecccccs page 12

Hazel-Atlas Glass Company v. Hartford Empire Co.,

1944, 64 S.Ct 997, 1003-1004, 322 U.S. 238,

PE ak x Fees hhok oa ce cee ees page 18,21

International Controls Corp v. Vesco,

(2™ Cir. 1977), 566 F2d 665 ..............000. page 12

Kenner v. Commissioner of Internal Revenue,

(7" Cir.,1968), 387 F2d 689,691,

Cert. Denied 89 S.Ct. 121,393 U.S. 841 ......... page 18

Klapprott v. United States,

1949, 69 S.Ct. 384,389, 335 U.S. 601,613-614 .. page 17,19

a ne

vill

Kotlicky v. U.S. Fidelity & Guaranty Co.,

(2™ Cir.1987), 817 F2d 6, 7 Fr. Serv. oe page 13

Kuperferman v. Consolidated Research & Mfg. Corp.,

(2 Cir,1972), 459 F2d 1072 0.6.2 eee eee rere page 18

Martina Theatre Corp. v. Schine Chain Theatres, Inc.

(2™ Cir, 1960), 278 F2d 798,801) .... 66. e reer ees page 18

Panama Process, SA v. Cities Service Co.,

(2™ Cir.1986), 789 Pe errr rT rest page 12

Phifer v. City of New York, (2nd Cir., 2002),

I8O F3rd 49,55 ... cece cece ererreceecerevcers page 7

Steel Company v. Citizens For A Better Environment,

(1988), 523 US 83.0... eee eee teeters page 12

Toscano v. Commissioner of Internal Revenue,

(9" Cir., 1971), Pe Le page 12,18

Zerelli v. NYCTA,

(EDNY,1997), 973 F.Supp. 311,

(Nina Gershon, U.S.D.J.), affirmed 2@ Circuit ..... page 4

TABLE OF STATUTES

og rrr ae eee page 5

FRCP Rule 60(b)(3)(4)&(6) ......... page 9,10,11,12,18

Code of Professional Responsibility,

ig Pere rrr rr errr rrr page 10

U.S. Constitution, Amendment XIV, Section 1... page 13P

TABLE OF APPENDICES

APPENDIX# 1

Ford v. NYCTA, BARBARA M. ROTH, Esq., et al;

ORDER of the District Court (Civil Action#

03cv0869(SJ)/98cv4768(SJ) dated April 1, 2003

SPT I gt ek ge ee a as la

SUMMARY ORDER - 2™ Circuit (Docket# 03cv7430)

Re Ee Sa

APPENDIX# 2

Ford v. NYCTA, MABSTOA;

ORDER of the District Court (Civil Action# 98cv4768(SJ)

cc eases vevaucuehanecidas. 10a

SUMMARY ORDER - 2™ Circuit (Docket# 01cv9091)

errr 29a

APPENDIX# 3

Ford v. IRS, Dime Savings Bank, et al;

ORDER & JUDGEMENT of the District Court

(Civil Action# 00cv3301(SJ) dated August 28,

2001 & September 17, 2001 respectively; ............ 4la

SUMMARY ORDER - 2™ Circuit (Docket# 02cv6022)

Go kg + ar a naar S5la

ORDER (Rehearing Denied) - 2" Circuit (Docket# 02cv6022)

ot fe a re ee re eee 55a

APPENDIX# 4

Ford v. NYCTA, MABSTOA;

ORDER of the District Court (Civil Action# 98cv4768(SJ)

[Barring Further Submissions from Petitioner, page 6, Items

(i reer eT rere. Se 57a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2004

GLADSTONE FORD, Petitioner Pro Se

-against-

NEW YORK CITY TRANSIT AUTHORITY (NYCTA);

MANHATTAN AND BRONX SURFACE TRANSIT

OPERATING AUTHORITY (Mabstoa); and

BARBARA M. ROTH, ESQ.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CITATION TO OPINION BELOW

The final Order of the U.S. Court of Appeals appears in

the Appendix hereto (Appendix# 1,2,3).

STATEMENT OF JURISDICTION

The Court of Appeals for the 2™ Circuit entered its final Order

on December 2, 2003.

———

STATUTORY PROVISIONS INVOLVED

FORD v. NYCTA:; MABSTOA;and BARBARA M. ROTH,

Esq.

U.S. DISTRICT COURT CIVIL ACTION# 03cv0869 -

2NP CIRCUIT DOCKET# 03cv7430:

(a) The U.S. Supreme Court has jurisdiction to hear

this matter because it involves the review of the final decisions

ofa Federal District Court anda U.S. Circuit Court of Appeals

involving a federal question; construction of United States

statutes and denial of rights thereunder; and, due process of law

and equal protection of laws pursuant to U.S. Constitution,

Amendment XIV, Section 1.

(b) The original action was brought as an independent

action pursuant to FRCP Rule 60(b)(3)&(6); 28 USC 1331; and

42 USC 2000e-5(f)(3). Pursuant to FRCP Rule 60(b)&(6),

ancillary jurisdiction, established in Civil Action# 98cv4768,

was retained by the courts below to determine whether they had

been victims ofa fraud. Pursuant to 28 USC 1391(b) venue lay

in the Eastern District of New York.

FORD v. NYCTA and MABSTOA

U.S. DISTRICT COURT CIVIL ACTION# 98cv4768 -

2NP CIRCUIT DOCKET# Olcv9091

review this case pursuant to jurisdiction established in the

lower courts pursuant to FRCP Rule 60(b).

(d) The above captioned action was commenced pursuant to

Title VII of the Civil Rights Act of 1964 (42 USC Sec. 2000e,

etc.); the New York State Human Rights Law (Executive Law

Sec. 296, etc.); and Administrative Code of the City of New

York (New York City Civil Rights Law Sec. 8-107(1)(a).

FORD v. IRS; DIME SAVINGS BANK, et al

U.S. DISTRICT COURT CIVIL ACTION# 00cv3301 -

2‘? CIRCUIT DOCKET# 02cv6022

The above captioned matter may be considered by the Supreme

Court because it is acompanion case to the cases under review.

(e) The U.S. Supreme Court has jurisdiction to entertain

a final decision of the U.S. Court of Appeals (2 Circuit);

(f) Jurisdiction in the lower courts was grounded upon:

FRCP Rule 60(b); and Rule 12(b)(1)(6);28 USC 1331& 1738;

Administrative Procedure Act, 5 USC 702,etc.; Declaratory

Judgement Act, 28 USC 2201&2702.

STATEMENT OF THE CASE

1. Petitioner makes this application for a Writ of

Certiorari from the final Order of the U.S. Court of Appeals for

the 2™ Circuit (Docket# 03-7430) dated December 2, 2003, as

follows:

U.S. DISTRICT COURT CIVIL ACTION# 98cv4768 -

FORD v. NYCTA and MABSTOA.

2. On August 5, 1998, Petitioner (represented by the

law firm of Thomas F. Bello, Esq.) filed a complaint in Federal

District Court for the Eastern District of New York against

Respondents (represented by Barbara M. Roth, Esq.) being

Civil Action #98cv4768 which suit arose from unlawful

employment discrimination practiced by the Respondents’

white male managers against Petitioner concerning promotion,

pay and conditions of employment because of Petitioner’s

eee

race, and further employment discrimination in the form of

retaliation for complaining thereof.

3. Petitioner’s suit also alleged that Respondents white

male managers practiced unlawful employment discrimination

against similarly situated white female managers on the basis

of gender (female managers were successful in their suits

against the same white male managers who exercised a

discriminatory animus against Petitioner). See Zerelli v.

NYCTA, (E.D.N.Y., 1997), 973 F. Supp.. 311, (Nina Gershon,

U.S.D.J.); affirmed 2" Circuit; and Belfi v. Prendergast, Pe

Cir.) 191 F3rd 129, 140.

4. Civil Action# 98cv4768 was assigned to Sterling

Johnson, Jr., U.S.D.J.

5. On September 25, 2000, Respondents’ attorney,

Barbara M. Roth, Esq., filed a Motion for Summary Juagement

(and ancillary papers and correspondence with the District

Court) in opposition to Petitioner's Employment

Discrimination Complaint in Civil Action# 98cv4768), in

which she: (a) falsely stated that Petitioner had produced no

evidence whatsoever in support of his claims, (b) that

Petitioner had refused to comply with Respondents’ document

demand during the course of discovery, (c) that the U. S. EEOC

had dismissed Petitioner’s charges; and, (d) Ms. Roth had

suborned perjury by Frederick L. Herman (NYCTA manager

alleged to have committed unlawful discriminatory acts against

Petitioner) in the submission of his "Affidavit in Further

Support of Defendants’ Motion for Summary Judgement".

(However, evidence that Petitioner submitted specific

controverted material factual issues to the District Court in

response to all of Respondents’ document demands pursuant to

Magistrate Go’s Discovery Order of October 15, 1998, is |

attached to "Complaint" in Civil Action# 03cv0869, in

Exhibit# 8, page 1; Internal exhibit "B"; and part 3).

§. On November 3, 2000, the District Court (Sterling

Johnson, Jr. J.) filed an Order which prohibited Petitioner from

any further submissions to the District Court because of

. procedural delays attributed to Petitioner’s counsel, Thomas F.

Bello.

7. Thereafter, Petitioner’s counsel, Thomas Bello, was

unable to respond to Barbara Roth’s misrepresentations to the

District Court concerning Petitioner’s document production or

proffer the statutorily required defense against the

Respondents’ Rule 56(e) Motion for Summary Judgement.

Accordingly, Barbara Roth was able to exploit the District

Court’s Order of November 3, 2000, (barring further

submissions by Petitioner) to advance her scheme to defraud

the Federal Courts herein since Judge Johnson’s Order shielded

her misrepresentations trom scrutiny ‘yy the respective Federal

Courts. (See Appendix# 4).

8. Consequently, the District Court, relying entirely

upon the Respondents attorney’s misrepresentations, found that

the Petitioner produced no evidence to support any of his

claims; that Petitioner had withheld documents demanded by

Respondents during Discovery; that Petitioner, a lawyer, was

not qualified for promotions for which he applied as were the

successful candidates (white male Bus Operators/Mechanics

with High School Diplomas), and granted the Respondents’

Motion for Summary Judgement in an Order dated June 8,

2001. (See Appendix# 2).

9. The 2™ Circuit Court of Appeals, in a decision dated

Aug. 21, 2002, affirmed the District Court’s Summary

Judgement Order finding that no evidence existed in the

District Court record to support Petitioner’s claims since the 2™

Circuit could not review the trial court’s finding of fact, and

was precluded, on appeal, from considering the 1,000 plus

pages of Petitioner’s evidence Barbara Roth was successful in

suppressing because such evidence, the 2™ Circuit ruled, was

"not contained" in the District Court record. (2 Circuit

Docket# 01-9091).

10. Petitioner herewith incorporates by reference the

full record in 2" Circuit Docket# 01-9091.

U.S. DISTRICT COURT CIVIL ACTION# 00cv3301 -

FORD v. IRS, DIME SAVINGS BANK OF NY, et al.

11. Ina related case, because it involved damages

flowing from the abovementioned circumstances, Petitioner

commenced an independent action pursuant to FRCP Rule

60(b), to challenge a report to the U.S. Treasury Department

Internal Revenue Service ("IRS") that the Dime Savings Bank

of New York, FSB, and Ocwen Federal Bank, FSB, had

"forgiven a mortgage debt" allegedly owed them by Petitioner

of $172,668.00 Dollars based upon a void, default New York

State Supreme Court Judgement of Foreclosure dated June 24,

1994. (NYS Sup. Ct. Index# 21189/93).

12. The premise of the Federal litigation was that the

IRS was without subject matter jurisdiction over the "res" or

debt because its assessment of Federal Income Tax was based

upon a NYS Supreme Court Foreclosure Judgement which: is

void.

13. However, Petitioner’s Complaint did not challenge

the merits, but only the validity of the NYS Judgement on the

ground that, if void, Full Faith & Credit would prohibit its

introduction into any Federal jurisdiction (including the IRS),

and, as a corollary, the Rooker-Feldman Doctrine could not be

applied to a void NYS Judgement.

14. The NYS Supreme Court Foreclosure Judgement

was void because it was obtained by fraud upon the NYS

Supreme Court. To wit, that Dime Savings Bank Attorney,

John Panagopoulos, filed a false instrument (Kequest for

Judicial Intervention), under oath, with the NYS Supreme

Court Clerk in which he perjured himself to conceal the facts

that: (a) the foreclosure action was commenced approximately

two (2) years after the New York State Statute of Limitations

had expired; (b) there was a prior Judgement which entitled

Petitioner to the preclusionary effect of Res Judicata regarding

the issues that the challenged judgement purported to decide.

(See NYS Sup. Ct. Index# 18165/86, same parties/same

issues/same mortgage).

15. Civil Action# O0cv 3301(SJ) was assigned to

Sterling Johnson, Jr., U.S.D.J.

16. Judge Johnson dismissed the Complaint in the

abovementioned action pursuant to the Rooker-Feldman

Doctrine, ruling that the District Court did not have jurisdiction

over the subject matter because the cause of action represented

"an attempt to appeal the NYS Supreme Court Judgement".

17. fetitioner appealed, but the 2™ Circuit, in a

decision dated November 8, 2002, and on rehearing May 20,

2003, affirmed the District Court’s Order of September 17,

2001, holding that:

"The teachings of Rooker-Feldman and its progeny

require this Court to affirm the district court’s dismissal

of Ford’s action against Dime and Ocwen. Ford’s

claims regarding the alleged fraud and the statute of

limitations with respect to the foreclosure judgement

are inextricably intertwined with the state court’s

underlying foreclosure judgement. See Phifer v. City

of New York., 289 F3rd 49,55 (2d Cir. 2002). In

essence, Ford seeks a declaration that the foreclosure

judgement is void, thereby requiring reversal of the

state court foreclosure judgement." (2™ Cir. Docket#

02-6022)

18. Moreover, the 2" Circuit held, regarding the void,

default, NYS Judgement of Foreclosure, Petitioner is barred by

the Rooker-Feldman doctrine from litigating the Constitutional

issues (ie., Full Faith and Credit, etc.) of the challenged NYS

Foreclosure Judgement because he had a "full and fair

opportunity to litigate" these issues in NYS Supreme Court

even if due process and equal protection of the laws were

denied and the Judgement that resulted was void and a default.

(Citing as authority the 2" Circuit’s own decision in Phifer v.

City of New York, (Ibid.)._

19. The 2™ Circuit in Ford v. IRS, et al, applies an "full

and fair opportunity to litigate" test to determine the

admitability into federal jurisdiction commerce of state court

judgements.

20. According to the 2™ Circuit, the sole inquiry or

criterion for determining admitability of a state court

judgement into federal jurisdiction is whether the party

challenging the state court judgement had a "full and fair

opportunity to litigate" in the state court.

21. This uniphase litmus test was applied in the above

captioned case and the result was that a void, default New York

State foreclosure judgement was permitted access to commerce

in the federal jurisdiction.

22. Applying the same approach as sanctioned by the

2™4 Circuit, if a Massachusetts court recognized the same sex

marriage of a couple regarding property located in New York,

and the matter came up in federal court, the only inquiry of the

2" Circuit would be. "did the challenging party have an

opportunity to fully litigate in the Massachusetts court, and

having found so would theoretically give federal jurisdiction

access to the Massachusetts judgement - thereby making same

sex marriage legal in the United States.

23. The 2™ Circuit in this instance would completely

disregard the fact that as decided in the above case (Ford v.

IRS) that the Massachusetts judgement would be invalid in

New York and that would violate the Full Faith and Credit

clause of the U. S. Constitution and the federal statute defining

marriage as a union between a man and a woman.

24. The foregoing does not describe the intention of the

Full Faith and Credit, nor the federal statute invalidating same

sex marriage, it is simply an example of judge made law.

25. Petitioner herewith incorporates by reference the

full record in 2" Circuit Docket# 02-6022.

U.S. DISTRICT COURT CIVIL ACTION# 03cv 0869 -

FORD v. NYCTA; MABSTOA; and BARBARA ROTH

26. Subsequently, Petitioner filed a new Complaint

dated February 21, 2003, in an independent action pursuant to

FRCP Rule 60(b)(3)& (6), alleging fraud upon the District

Court, and complaining of misconduct by Respondents’

(NYCTA and Mabstoa) attorney Barbara Roth.

27. Petitioner’s Complaint alleged that Barbara Roth

made assertions to the District Court and the Court of Appeals

that were knowingly false; that those statements were intended

to conceal and suppress material facts as part of a consciously

perpetrated scheme to defraud the District and Appellate

Courts; and, that those false statements were relied upon, to

Petitioner’s detriment, by the Federal Courts herein.

28. Civil Action# 03cv 0869 was assigned to Sterling

Johnson, Jr., U.S.D.J.

29. On April 1, 2003, Judge Johnson ruled, sua

sponte, (and without notice, a hearing, or taking proof to

determine whether fraud had been perpetrated on the Court)

that Petitioner’s independent action pursuant to FRCP Rule

60(b), etc. was "erroneously opened as a new case" by the

Clerk’s Office; and converted the Complaint in said action to

a Motion for Reconsideration of his June 8, 2001 Order that

granted Summary Judgement in Ford v. NYCTA, et al (Civil

Action# 98cv4768(SJ), after the case had been appealed to the

2™ Circuit (2 Circuit Docket# 01-9091); then Judge Johnson

denied the putative "motion" as untimely. Additionally, the

"(District) Court direct(ed) the Clerk of Court to close the new

case, 03-CV-0869, and to docket the instant submission under

98-CV-4768." (See Order, page 1, Civil Action# 03cv0869(SJ),

Appendix# 1).

30. The 2™ Circuit Court of Appeals, which permitted

Barbara Roth to represent both herself and the other

Respondents on appeal (despite being a potential witness, and,

despite such dual representation being condemned by the Code

of Responsibility (PDR 5-101,102&105) as a Conflict of

Interest), affirmed the District Court’s Order in a decision dated

December 2, 2003.

(2™ Cir. Docket# 03-7430).

31. This Petition for Certiorari arises from the final

decision of the U.S. District Court in Ford v. NYCTA;

MABSTOA: and Barbara Roth, Esq., (Civil Action#

03cv0869), its appeal to and final decision of the U.S. Court of

Appeals (2™ Circuit Docket# 03-7430), the underlying and

companion cases as detailed above.

REASONS FOR GRANTING THE WRIT

POINT 1

It is error and an abuse of judicial discretion for the

District Court and 2™ Circuit to convert Petitioner’s FRCP

Rule 60(b) independent action complaining of fraud upon

the court into a Motion to Reconsider the grant of

Summary Judgement in a prior action and dismiss the

putative "motion" as untimely, without notice, a hearing or

taking proof of charges of fraud perpetrated upon the

Court.

Discretion of the Court

32. Inthis case, Judge Johnson, sua sponte, converted

Petitioner’s independent action, commenced February 21,

2003, pursuant to FRCP Rule 60(b) into a Motion for

Reconsideration of a June 8, 2001 Order granting Summary

Judgement in a prior employment discrimination action (Ford

v. NYCTA, et al., Civil Action# 98cv4768(SJ); then Judge

Johnson denied the putative motion as untimely without notice

or a hearing to determine whether fraud had been perpetrated

on the Court.

33. Asis recognized by the Federal Courts, a petition

for relief from a judgement under Rule 60(b) is addressed to the

discretion of the court. (Creswell v. Sullivan & Cromwell,

(2nd Cir.,1990), 922 F2d 60, at page 71).

34. Asa result, a District Court has discretion to grant

or deny relief under FRCP Rule 60(b). However, the court’s

discretion is not a capricious or arbitrary one, it is limited by

the following important legal principles:

ae cell ee, —_—

THE DISTRICT COURT’S EXERCISE OF DISCRETION IS

LIMITED BY:

(1) FRCP Rule 60(b) which is remedial in nature, and,

therefore, must be liberally construed, so that any case

presenting a question of substantial rights should be resolved

in favor of a petition to set aside the judgement, when

Petitioner has not been afforded an opportunity to have his case

decided on the merits after a fair hearing, which presupposes an

opportunity to present all facts available in support of his

position. (Steel Company v. Citizens For A_ Better

Environment, (1988), 523 US 83);

(2) well established precedent that judgements obtained by

fraudulent practices and perjured testimony are to be vacated as

a matter of law (they are void and never become final,

(Toscano v. Commissioner of internal Revenue, (9" Cir, 1971),

441 F2d 930);

(3) by the fact that the District Court exercising his discretion

without notice, a hearing or taking of proof of fraud upon the

court, took Petitioner by surprise, a result not intended by

FRCP Rule 60(b), and that Petitioner had the right to know on

what procedural grounds the District Court was deciding the

case.

(4) by fact that doubt should be resolved in favor of an action

to set aside judgement so that cases may be decided on their

merits, and only after a careful study of all the relevant

considerations should a court refuse to open a judgement

obtained by fraud;

(Enron Oil Corp v. Diakuhara, (2™ Cir.1993), 10 F3rd 90,96;

Hadden v. Ramsey, (2™ Cir.1952), 196 F2d 92); International

Controls Corp v. Vesco, (2 Cir. 1977), 556 F2d 665; Panama

Process, SA v. Cities Service Co., (2™ Cir.1986), 789 F2d 991).

a ee ees > =

rs SE eae i PTS to Re er ee

;

)

ee ee

CONSTITUTIONALLY DEFECTIVE ABUSE OF

DISCRETION

35. Accordingly, it is an abuse of discretion and

Constitutional deprivation of due process for the District Court

not to grant relief pursuant to Rule 60(b), as a matter of law,

were indisputable evidence accompanied by a statement of

clear and convincing probative facts supported elements of

fraud upon the court. (Kotlicky v. U.S. Fidelity & Guaranty

Co., (2™ Cir.1987), 817 F2d 6, 7 Fr. Serv. 3 353).

36. Furthermore, it certainly is a constitutionally

defective abuse of judicial discretion, as a matter of law, to

deny Petitioner the benefit of the statutory safeguards provided

by Rule 60(b)

[ie., liberal construction, discourage fraud upon the court, etc.]

compounded by the denial of Constitutional safeguards of

notice, a hearing, or taking of proof of charges of fraudulent

misrepresentation and concealment. (Hadden v. Ramsey

Products, (supra).

37. The Constitutional defect occasioned by the

foregoing abuse of discretion occurs when the unwarranted

exercise of discretion does not simply deprive Petitioner of an

opportunity to present evidence in a particular instance, but is

so egregious that it results in the deprivation of the

Constitutional safeguards of due process and equal protection

of the law such that Petitioner has never had his day in court.

(U.S. Constitution, Amendment XIV, Section 1).

POINT Il

FILING OF NOTICE OF APPEAL AS AFFECTING

JURISDICTION OF DISTRICT COURT TO, SUA

SPONTE, CONSIDER A MOTION TO RECONSIDER

38. The filing of the Notice of Appeal generally divests

the District Court of jurisdiction over the case. Therefore, any

order by the District Court pertaining to the merits of the

judgement and entered after the appeal has been taken is of no

effect. Thus, the District Court in this instance has no

jurisdictional basis for a Motion to Reconsider or reopen Ford

v. NYCTA, et al., (Civil Action# 98cv4768(SJ), on the merits,

after jurisdiction had been given up to the 2" Circuit. (Judicial

Code Title 28 USC Sec.1295 (c) - "the U.S. Court of Appeals

shall have exclusive jurisdiction ... of an appeal from a final

decision of a District Court of the United States." Exception:

Rule 60(b) does provide a statutory jurisdiction to the District

Court to reopen cases on appeal, but only for the limited

purpose of investigating complaints concerning fraud upon the

court.

PM TIMES Git EEL Sie ARIMA ELE BEY, FRE UES

POINT Il

WHAT CONSTITUTES FRAUD UPON THE COURT:

BARBARA ROTH’S MISREPRESENTATIONS:

AN _UNCONSCIONABLE PLAN OR SCHEME: THE

INVOLVEMENT OF AN OFFICER OF THE

COURT(EXTRORDINARY CIRCUMSTANCES):

DISTRICT COURT’S RELIANCE UPON BARBARA

ROTH’S MISREPRESENTATIONS; "CLEAN HANDS"

DOCTRINE DOES NOT APPLY: MERITORIOUS

CLAIM.

39. The record contains indisputable evidence that

Barbara Roth’s assertions to the Federal Courts herein

regarding the Respondents’ Summary Judgement motion were

misrepresentations of fact, known by her to be false, and were

part of an unconscionable plan or scheme to defraud by

concealing controverted, material facts from consideration by

the District Court and the 2™ Circuit, to wit:

(1) Suppression of Evidence - Barbara Roth’s statements that

"Ford had produced no evidence..." were false since

Respondents were in receipt of, and, Ms. Roth knew that

Petitioner had produced "more than 1055 pages" of documents

containing material facts which supported Petitioner’s case on

July 15, 1999, pursuant to Magistrate Marilyn D. Go’s

Discovery Order of October 15, 1998. (See Thomas F. Bello,

Esq. "Affidavit", in "Complaint" [03cv0869], Exhibit# 8, page

1; and, Evelyn Jonas, Esq. Letter to Thomas F. Bello, Esq.

dated December 17, 1999, "Complaint" [03cv0869], Exhibit#

8 (internal exhibit "B"; and Exhibit# 8, part 3).

(2) Barbara Roth used an unspecified quantity of the materials

she told the Federal Courts did not exist, as a basis of proof in

her own submissions. (See B. Roth "Reply Memorandum of

Law in Support of Defendants’ Motion for Summary

Judgement" (Petitioner’s "Complaint" [03cv0869], Exhibit#

4(b), page 1);

(3) Misrepresentation of Facts - (a) "Petitioner failed or

refused to respond to document demands made by Respondents

during discovery concerning certain "notes" and "records".

B.Roth Memorandum in Support of Motion for Summary

Judgement, pages 19-20), See "Complaint" [Ibid.].

Contradictory, however, is Barbara Roth’s associate, Todd L.

Schleifstein, Esq. "Letter dated February 14, 2000",

acknowledging receipt of supplemental document delivery

from Petitioner in response to Respondents discovery demand

in "Complaint" [03cv0869], Exhibit# 7. (b)"... the U.S. Equal

Employment Opportunity Commission ( "EEOC") had

dismissed Ford’s multiple charges of Discrimination against

the Transit Defendants..." (B. Roth’s "Brief" on appeal, page

2, Docket# 01-90°1; Memorandum of Law in Support of

Motion for Summary Judgement, "Complaint" [03cv0869]

Exhibit# 1, page 9, para. 77). However, in refutation, the

EEOC Right to Sue Letter obtained by Petitioner unequivocally

states that: "This is your Notice of Right to Sue.... it has been

issued at your request..." And, "The EEOC is terminating the

processing of this charge." (see Petitioner’s "Right to Sue

Letter" issued by the EEOC April 20, 1998, which contradicts

Barbara Roth’s misrepresentations. ("Complaint" [03cv0869],

Exhibit# 2).

(4) Subordination of Perjury - in the solicitation of (NYCTA,

Staten Island Division manager) Frederick Herman’s

"Summary Judgement Affidavit" in which he testifies under

oath to Petitioner’s job qualifications and job applications to

other corporate entities about which F. Herman had no personal

knowledge as required by FRCP Rule 56 (Summary

Judgement). See "Affidavit in Further Support of Defendants’

————

Motion for Summary Judgement" in "Complaint" [03cv0869],

Exhibit# 5, para. 2,3&5-8, pages 1&2, and, remarkable is B.

Roth’s admission: "Candidate selections, including

promotions... are made by different people in different

departments, divisions and corporate entities..." B.Roth

"Memorandum of Law in Support of Defendants’ Motion for

Summary Judgement", see "Complaint" [03cv0869], Exhibit#

4(a), page 14);

EXTRAORDINARY CIRCUMSTANCES - Involvement of

an Officer of the Court

40. Judge Johnson’s Order dated November 3, 2000 -

Barbara Roth’s scheme to defraud the Federal Courts herein

was advanced by her exploitation of the District Court’s Order

dated November 3, 2000, which prohibited Petitioner from any

further submissions to the District Court. (Nov 3, 2000 Order

in Appendix# 4). Barbara Roth exploited Judge Johnson’s

Order to shield her misrepresentations from scrutiny by the

Federal Courts, since Petitioner was unable to controvert

misrepresentations made by her to the District Court or proffer

proofs in support of Petitioner’s defense to Respondents’

Summary Judgement Motion from November 3, 2000, [the date

of Judge Johnson’s Order barring further submissions by

Petitioner], through June 8, 2001, [the date when Judge

Johnson issued his Order granting Respondents’ Motion for

Summary Judgement].

41. Thus, Petitioner did not have a "full and fair

opportunity to litigate" the issue of fraud upon the court in the

underlying case [98cv4768]. (Klapprott v. United States, 335

U.S. 601,613-614).

42. Moreover, Barbara Roth, an attorney and officer

of the court, involvement in the above <escribed scheme to

defraud the Federal Courts herein, meets and exceeds the

requirement of extraordinary circumstances warranting relief.

43. An attorney’s loyalty to the court, as a officer

thereof demands integrity and honest dealing with the court,

and, when she departs from that standard, she perpetrates a

"fraud upon the court" within the savings clause of the rule

governing relief from judgement or order. (FRCP Rule

60(b)(3)(4)&(6).

44. The preceding principle applies to cases of fraud

upon the court, because the proscription in Rule 60(b), is not

that an attorney may lie to a federal Court: if the lie is

ineffective; or if the attorney’s adversary has ari opportunity to

rebut the lie; or that an attorney may lie to a Federal Court

where his/her adversary is guilty of some defect or default — the

proscription of Rule 60(b)(4)&(6) is that an attorney may not

lie to a Federal Court, - period. (Kuperferman v. Consolidated

Research & Mfg. Corp., (2" Cir, 1972), 459 F2d 1072; Kenner

v. Commissioner of Internal Revenue, (7" Cir.,1968), 387 F2d

689,691, Cert. Denied 89 S.Ct. 121,393 U.S. 841; Toscano v.

Commissioner of Internal Revenue, (9" Cir., 1971), 441 F2d

930; Hazel-Atlas Glass Company v. Hartford Empire Co.,

Post).

CLEAN HANDS DOCTRINE

45. Furthermore, it is noteworthy that the equitable

principle of "clean hands" is not a pre-condition to reporting

fraud upon the court or maintaining an independent action

under the saving clause of FRCP Rule 60(b). Thus, whatever

procedural delays or defects Petitioner’s attorney, Thomas

Bello, Esq., was liable for in the District Court does not

translate into a bar to Petitioner maintaining an independent

action alleging fraud upon the court as the 2" Circuit suggests.

(Martina Theatre Corp. v. Schine Chain Theatres, Inc. ta

Cir,1960), 278 F2d 798,801).

ee ae a Re, ee Re ee ee ae

46. Accordingly, an attorney and officer of the court,

3arbara Roth, involvement in the abovedescribed scheme to

defraud the Federal Courts herein meets and exceeds the

requirement of extraordinary circumstances warranting relief,

and abrogates the need for such considerations as "opportunity

to litigate" or "Clean Hands". (Klapprott v. United States,

1949, 69 S.Ct. 384,389, 335 U.S. 601,613-614).

MERITORIOUS CLAIM

47. Petitioner, using the McDonnell Douglas (Burdine)

Model, is able to demonstrate that the "more than 1055" pages

of documents produced by Petitioner during discovery (ie., the

suppressed evidence), could indisputably support his claim in

general, and more specifically, would have been sufficient to

defeat the Respondents’ Summary Judgement Motion in the

District Court and the 2™ Circuit.

POINT IV

PUBLIC POLICY CONSIDERATION AND

CONSTITUTIONAL PRINCIPLES

48. Petitioner unquestionably has a meritorious claim, but has

been consistently thwarted in his efforts to demonstrate and

support the merits of his claim with the "more than 1055 pages"

of documentation which Barbara Roth has successfully

concealed from the District Court in Civil Action# 98cv4768,

and the 2"! Circuit in Docket# 91-9091.

49. Furthermore, Petitioner’s inability to persuade the Federal

Courts herein is directly attributable to the misconduct of

NYCTA attorney, Baivara Roth, whose misrepresentations and

concealment pursuant to her plan to improperly influeace the

Federal Courts herein has so completely distorted the judicial

process that in fairness and good conscience the judgement

should not be permitted to stand, and relief should be granted.

50. Moreover, in Ford v. ABC (Alleged "Blacklisting" of

Petitioner by ABC through the use of negative employment

references after Petitioner had resigned to re-take the Bar

Examination) , Petitioner was victimized by the same tactics

that Barbara Roth has implemented-in Ford v. NYCTA, et al.

In that case, ABC attorney Ronald Green, Esq. (firm: Becker,

Borsody & Green) misrepresented to the District Court, Pierre

N. Leval. under oath, that Petitioner had refused to disclose

the contents of a FBI Background Report during Discovery.

Judge Leval dismissed Petitioner’s case as a sanction.

51. On appeal to the 2™ Circuit, Petitioner produced a

transcript of an ABC deposition taken of Petitioner during

discovery two (2) years prior, in which Ronald Green, on the

record, read line by line from the same FBI Background Report

he swore to Judge Leval that Petitioner had refused to produce. |

The 2™ Circuit changed the theory of the District Court’s

decision and affirmed on the basis of a Freedom of Information

Act privilege asserted by Petitioner in the same deposition.

(The FOIA privilege Petitioner asserted pertained to only "16

pages" of the FBI Background Report and is designed to

protect irrelevant interviews with friends and neighbors from

public scrutiny). Approximately two (2) months after the 2"

Circuit decision, ABC was sold to Capital Cities Broadcasting,

Inc. for 2.2 Billion Dollars. (Ford v. American Broadcasting

Company, Inc., (SDNY, 1983), 101 F.R.D. 664,667; U.S.

Court of Appeals 2" Circuit, Docket# 83-7797; Writ of Cert.

U.S. Supreme Court, denied).

52. The pattern of deceptions practiced by Barbara

Roth (TORYS), Ronald Green (Becker Borsody & Green), and

John Panagopolous (Rivkin Radler & Kremer) in order to

defraud the Federal Courts herein is not merely a violation of

trust, but a public policy violation because its impact is far

greater than the detriment to Petitioner, since such conduct

tends to erode the public confidence in the capacity of the

Federal Courts to render impartial judgements. (Hazel-Atlas

Glass Company v. Hartford Empire Co., 1944, 64 S.Ct 997,

1003-1004, 322 U.S. 238, 250-251).

53. Moreover, the judicial process appears to have

broken down outrageously when Federal Courts in other

Circuits, have found it appropriate to severely punish the

President of the United States, William Jefterson Clinton, for

similar misconduct while the cadre of lawyers herein are able

to commit perjury, or other misconduct, and misrepresent facts

in the Federal Courts of the 2" Circuit confident in the

knowledge that no harm will come to them, their clients or their

reputations because the cases against them will be dismissed.

54. Finally, a large part of judicial economy is the

incentive on the part of litigants to settle their disputes without

the need for trials. However, the policy of the 2™ Circuit

removes that incentive, and creates judicial economy in one

direction onlv, in favor of the abovementioned attorneys, and

at the expense of the litigants who oppose them.

55. Dismantling Constitutional safeguards and

usurping or overriding the Legislative function, albeit in the

name of judicial economy, is not a proper conduct of the

judicial function.

CONCLUSION

WHEREFORE, Petitioner prays the Court to grant the

foregoing petition, remand the case for trial, and for such other

and proper relief the Court deems necessary and appropriate.

Dated: February 25, 2004

Brooklyn, New York

Respectfully Submitted,

Gladstone Ford

Petitioner pro Se

821 Hancock Street, Apt. 1L

Brooklyn, New York 11233

Tel: (718) 573-3052

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

GLADSTONE FORD,

Plaintiff,

ORDER

03-CV-0869 (SJ)

-against-

NEW YORK CITY TRANSIT AUTHORITY

(NYCTA), MANHATTAN AND BRONX

SURFACE TRANSIT OPERATING

AUTHORITY (MABSTOA),

BARBARA M. ROTH, ESQ.,

Defendants.

JOHNSON, J.:

Plaintiff, appearing pro se, filed this complaint as an

“independent action brought pursuant to [Fed.R.Civ.P.]

60(b)(3) & (6).” Compl. 4 10. The instant action was

erroneously opened as a new case and assigned a new civil

docket number. It should have been filed as a motion under

Fed.R.Civ.P. 60(b) seeking reconsideration of this Court’s

Order, filed June 8, 2001, dismissing Ford v. New York City

Transit Authority, et_al., No. 98 CV 4768 (SJ). The Court

directs the Clerk of Court to close the new case, 03-CV-0869,

and to docket the instant submission under 98-CV-4768. For

the following reasons, plaintiffs motion is denied.

Plaintiff brought this action in 1998 against New York

City Transit Authority (“NYCTA”) and Manhattan and Bronx

Surface Operating Transit Authority (“MaBSTOA”) alleging

defendants discriminated against him based on his race in

violation of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000-e et seq., the Equal Pay Act, 29

U.S.C. §§ 206(d) and 215(a)(2), the New York State Human

Rights Law, and Title 8 of the Administrative Code of the City

of New York. See Order, filed June 8, 2001, Ford v. New York

City Transit Authority, et_al., No. 98 CV 4768 (SJ), at 1.

Plaintiff was hired by MaBSTOA, a statutory subsidiary of

NYCTA, in March 1989, as a Manager of Labor Relations for

the Staten Island Division, Department of Buses. Id. at 2. He

alleged that defendants failed to promote him and wrongfully

terminated him based on discrimination and retaliation. Id. This

Court granted defendants’ motion for summary judgment

pursuant to Fed.R.Civ.P. 56, and dismissed plaintiff's

complaint. Id. at 20.

Plaintiff now alleges that defendants’ counsel in that

action, Barbara Roth, committed fraud by uttering “false,

misleading” statements that were “designed to conceal material

facts from consideration by the District Court.” Compl. { 5. In

particular, plaintiff alleges that Roth concealed documents

produced by plaintiff during the course of discovery,

“subordinat[ed]” perjury, and misrepresented that plaintiff had

refused to comply with discovery requests. Id, at {| 7. Plaintiff

claims that Roth’s actions constituted a “willful perpetration of |

an unconscionable plan ... to defraud the District Court. Id, at

q 8. Plaintiff alleges that he is entitled to relief pursuant to Rule

60(b)(3) & (6). Id. at | 10.

a i i De i ee gt

Fed.R.Civ.P. 60(b) provides, in pertinent part:

On motion and upon such terms as are just, the

court may relieve a party .. From a final

judgment [or order] for the following reasons:

(1) mistake, inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence ... ; (3)

fraud ... misrepresentation, or other misconduct

of an adverse party; (4) the judgment is void;

(5) the judgment has been satisfied, released., or

discharged ... or (6) any other reason justifying

relief from the operation of the judgment. The

motion shall be made within a reasonable time,

and for reason (1), (2), and (3) not more than

one year after the judgment, order or

proceeding was entered or taken.

Plaintiff contends that the Court should vacate its

judgment dismissing the complaint based on defendants’ fraud

pursuant to Rule 60(b)(3). However, plaintiff's motion on this

ground is time-barred. A motion under 60(b)(3) must be made

within one year. The judgment dismissing plaintiff's complaint

was entered on June 8, 2001. Therefore, the instant motion is

untimely.

Plaintiff's motion does not warrant relief from judgment

under Rule 60(b)(6), which has no specific time limit. This

section may only be invoked when the asserted grounds for

relief are not recognized in clauses (1) through (5) of the rule.

See Nemaizer_v. Baker, 793 F.2d 58, 63 (2d Cir. 1986).

Because plaintiff's asserted grounds for relief are recognized in

60(b)(3), plaintiff cannot avail himself of the “reasonable time”

provision of 60(b)(6) to avoid the one-year time bar. See, e.g.,

Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 701 (2d Cir.

1972).

ee ee ee

Accordingly, plaintiff's motion for relief from the

Court’s judgment is denied. The Court certifies pursuant to 28

U.S.C. § 1915(a)(3) that any appeal would not be taken in good

faith and therefore in forma pauperis status 1s denied for

purpose of an appeal from this Order. Coppedge v. United

States, 2€9 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: Brooklyn, New York

April 1, 2001

s/ STERLING JOHNSON, JR., USDJ

FILED

In Clerk’s Office

U.S. District Court, E.D.N.Y.

April 4, 2003

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, Foley Square, in the City of New York, on

the 2™ day of December, two thousand and three.

PRESENT:

HON. GUIDO CALABRESI,

HON. BARRINGTON D. PARKER, JR.,

HON. REENA RAGGI,

Circuit Judges.

GLADSTONE FORD,

Plaintiff-Appellant,

No. 03-7430

NEW YORK CITY TRANSIT AUTHORITY,

MANHATTAN AND BRONX SURFACE

TRANSIT OPERATING AUTHORITY,

BARBARA M. ROTH, Esq.,

Defendants-Appellees.

For Plaintiff-Appellant: GLADSTONE FORD,

Brooklyn, NY (pro se)

For Defendants-Appellees: BARBARA M. ROTH,

Torys LLP

New York, NY

Appeal from the United States District Court for the

Eastern District of New York (Johnson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the District court be and it hereby is AFFIRMED.

In 1998, Plaintiff-Appellant Gladstone Ford brought a

Title VII race discrimination and retaliation claim against his

former employer, the New York City Transit Authority and the

Manhattan and Bronx Surface Operating Authority. The district

court granted summary judgment to the defendants after

concluding that Ford had demonstrated no issues of material

fact supporting either claim. In August 2002, we affirmed the

district court’s judgment by summary order. See Ford v. New

York City Transit Author., 43 Fed. Appx. 445 (2d Cir. 2002).

In February 2003, Ford returned to the United States

District Court for the Eastern District of New York, seeking

relief from the previous judgment by filing what he styled a

“complaint” and an “independent action brought pursuant to

[Fed.R.Civ.P.] 60(b)(3) & (6).” Ford alleged specifically that

the defendants’ attorney, Barbara Roth, committed a fraud upon

the district court by (1) falsely informing the district court that

Ford’s EEOC charges had been dismissed, (2) soliciting an

affidavit that Ford alleges included false statements, and (3)

misrepresenting the adequacy of Ford’s evidence and his efforts

to comply with discovery. The district court characterized this

“complaint” as a Rule 60(b) motion and denied it.

Federal Rule of Civil Procedure 60(b) provides,

in relevant part:

On motion and upon such terms as are just, the

court may relieve a party or a party’s legal

representative from a final judgment, order, or

proceeding for the following reasons: ...(3)

fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other

misconduct of an adverse party; ...or (6) any

other reason justifying relief from the operation

of the judgment. The motion shall be made

within a reasonable time, and for reasons, (1),

(2) and (3) noi more than one year after the

judgment, order, or proceeding was entered or

taken....This rule does not limit the power of a

court to entertain an independent action to

relieve a party from a judgment, order, or

proceeding, ...or to set aside a judgment for

fraud upon the court.

If characterized as a 60(b)(3) motion, Ford’s claim would be

time-barred, because it was brought more that one year after the

June 2001 summary judgment. An “independent action” based

upon “fraud upon the court” may, however, be brought at any

time, see Gleason v. Jandrucko, 860 F.2d 556, 558 (2d Cir.

1988), so long as it is not barred by the doctrine of laches, see

Simons v. United States, 452 F.2d 1110, 1116 (2d Cir. 1971).

But Ford has alleged no facts that could support such an

action. Appellees committed no wrong by informing the district

court that the EEOC had “dismissed” Ford’s charges. It is

commonplace to refer to an EEOC right to sue letter as a

dismissal. See, e.g., Elmenayer v. ABF Freight System, Inc.,

318 F.3d 130, 133 (2d Cir. 2003). Even ifthe affidavit to which

Ford objects included false statements — for which we see no

evidence — that would not suffice to support a claim of fraud

upon the court. See Gleason, 860 F.2d at 559. And the

appellees’ argument below that “the record contains absolutely

nothing other than Ford’s self-serving speculation and surmise

(o support his claims” does not misconstrue or “suppress” the

evidence produced by Ford — it merely attests to the appellees’

‘ belief that such evidence was insufficient to support Ford’s

claim. Although Ford insists that the appellees lied by stating

that he had failed to produce certain notes in response to

discovery, he provides us with no evidence that he did in fact

produce the documents in question. Finally, even had there

been misrepresentations by the appellees regarding Ford’s

satiasie

a ee ee

evidence or compliance with discovery at this stage, Ford couid

have raised this issue in his opposition to summary judgment.

Ford has thus not shown that he “had no opportunity to

litigate the allegations of fraud on the ccurt” in the previous

proceeding. Weldon v. United States, 70 F.3d 1, 5 (2d Cir.

1995). He has also offered no evidence that the appellees

committed any fraud or misrepresentation at all, much less the

heightened form of “fraud which seriously a‘fects the integrity

of the normal process of adjudication” which is the predicate of

an action under the savings clause of Rule 60(b). Gleason, 860

F.2d 559. We have considered all of the appellant’s claims and

find them meritless.’ We therefore AFFIRM the judgment of

the district court.

For the Court,

ROSEANN B. MACKECHNIE

Clerk of the Court

By: s/_ Lucille Carr

FILED

United States Court of Appeals, Second Circuit

December 2, 2003

' The appellees request that we enjoin the plaintiff from

bringing any further similar actions against them. After considering

the factors outlined in Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d

Cir. 1986), we conclude that Ford’s conduct does not rise to the level

of “vexatious” or “harassing,” and therefore decline to impose

sanctions upon him.

10a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

GLADSTONE FORD,

Plaintiff, 98 CV 4768 (SJ)

-against- MEMORANDUM

AND ORDER

NEW YORK CITY TRANSIT

AUTHORITY AND MANHATTAN

AND BRONX SURFACE

TRANSIT OPERATING AUTHORITY,

Defendants.

APPEARANCES:

THOMAS F. BELLO, ESQ.

387 Forest Avenue

Staten Island, NY 10301

Attorney for Plaintiff

TORYS

237 Park Avenue

New York, NY’ 10017

By: Barbara M. Roth, Esq.

Attorneys for Defendants

JOHNSON, District Judge:

aisle ik coli Sica i Sia i ah en

lla

Plaintiff Gladstone Ford(“Plaintiff’) brings this action

against Defendants New York City Transit Authority

(“NYCTA”) and Manhattan and Bronx Surface Troensit

Uperating Authority (“MaBSTOA”) alleging violation of Tiile

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000-e et seq. (“Title VII’), the Equal Pay Act, 29 U.S.C. §§

206(d) and 215(a)(2) (“EPA”), the New York State Human

Rights Law, and Title 8 of the Administrative Code of the City

of New York. Presently before the Court is Defendants’ motivo)

for summary judgment. For ihe following reason, Defexdants’

motion is granted.

BACKGROUND

Plaintiff was hired by MaBSTOA, a statutory subsidiary

of NYCTA', in March 1989, as a Manager of Labor Relations

for the Staten Island Division, Department of Buses. In this

capacity, Plaintiff was responsible for handling disciplinary and

contract interpretation grievance appeals and arbitrations, as

well as administering labsr relations matters and labor

contracts for the Staten Island Division. During Plaintiff's five

years of employment at MaBSTOA, numerous complains were

filed by Plaintiffs fellow employees alleging that Plaintiffs

performance was deficient. (Herman Aff. Ex. 3.) Also during

that time, Plaintiff applied for a total of ten different

management positions in efforts to gain a promotion. Plaintiff

was not hired for any of the ten positions. On March 25, 1994,

‘Defendant NYCTA isa public benefit corporation existing

pursuant to the New York State Public Authorities Law §1201 et seq.

Defendant MaBSTOA, a public benefit corporation under the New

York State Public Authorities Law §1203-a, is a subsidiary of

NYCTA that operates certain bus lines for the City of New York. The

two authorities are separate legal entities.

12a

Plaintiff took a leave of absence from the MaBSTOA, claiming

symptoms of job-related stress, and never returned to work.

Plaintiff was terminated May 23, 1995, pursuant to company

policy. Plaintiff, who is Black, alleges that Defendants’ failure

to promote Piaintiff and his subsequent termination were

discriminatory and retaliatory employment actions.

Plaintiff's Attempts to Gain Promotion

Beginning in 1991, Plaintiff applied for a variety of

positions at the highest levels of NYCTA and MaBSTOA

management. The first position for which Plaintiff claims he

applied was that of Assistant General Manager, Administration,

Staten Island Division. Plaintiff allegedly applied for the job in

March 1991 and asserts in his Complaint that Frederick

Herman, a veteran NYCTA employee who is currently General

Superintendent in the Quality Performance Unit of the

Department of Buses of NYCTA, was eventually awarded the

position. (Herman Aff. 4 1). Defendants contend, however, that

due to reorganization, the position was eliminated that same

year, prior to being filled. (Herman Aff. Ex. 11.)

On July 8, 1991, Plaintiff applied for the position of

Chief Electrical Officer, a high-leve! management post. The

Chief Electrical Officer assumes responsibility for all aspects

of the complex signal, power distribution, and communication

systems for tiie vast subwey system operated by the NYCTA.

(Herman Aff. Ex. 14.) Furthermore, the position entails

management of 2,700 employees and an annual budget of $300

million. (7d.) Plaintiff was not c ‘fered the position. Defendants

assert that Plaintiff was not qua‘.fied for this job, a claim that

Plaintiff does not refute. (Defendant’s Rule 56.1 Statement of

Undisputed Facts (“Def. 56.1 Stmt’’) J 33.) The position was

filled in December 1991 by an NYCTA employee who had

previously held the position of Chie‘ Mechanical Officer in the

13a

Car Equipment Division and was otherwise qualified for the

position. (Def. 56.1 Stmt. 34.)

On April 7, 1992, Plaintiff applied for the position of

Senior Director, Labor Research and Negotiations. This

position remained open until 1995, at which time Plaintiff was

no longer available for work. Plaintiff also claims that he

applied for a Senior Director Labor research position (Compl.

{| 30.) However, Defendants contend, and Plaintiff's 56.1

Statement does not refute, that there was no such job opening.

(Def. 56.1 Stmt. § 44.)

On May 28, 1992, Plaintiff applied for the position of

Labor Counsel, which Plaintiff was aware had been posted by

the Metropolitan Transportation Authority (“MTA”), rather

than by MaBSTOA or NYCTA. (Roth Aff. Ex. 1 at 67.) The

MTA is a separate entity from NYCTA or MaBSTOA and

Defendants played no role in applicant selection for any MTA

position. (Def. 56.1 Stmt. § 47.) Plaintiff was not selected by

the MTA for the Labor Counsel position.

Plaintiff states in his Complaint that, on September 14,

1992, he applied for the position of director, Surface Transit, a

high-level business management position within NYCTA.

(Compl. § 31.) Plaintiff later stated in his deposition testimony,

however, that he does not recall applying for that position.

(Roth Aff. Ex. 1 at 67.) The Director, Surface Transit position

required experience which Plaintiff did not possess, and was

filled in December 1992 by an NYCTA employee whose

credentials matched the iob qualifications. (Def. 56.1 Stmt. ¥

51-52; Herman Aff. Exs. 5, 23.)

On October 20, 1992, Plaintiff applied for the position

of General Manager, Bronx Division with the NYCTA. The

General Manager was responsible for the delivery of all

transportation services in the Bronx, including the maintenance,

administration and operations of multiple bus depots

Overseeing more than 700 buses, and management of a more

V4.

than $85 million budget. (H -rman Aff. Ex. 24.) Plaintiff was

not hired for that position. The successful candidate was

previously the Acting Manager of the Bronx Division and had

more than 20 years of experience in the transit industry.

(Herman Aff. Ex. 25: Def. 56.1 Stmt. At 56.)

On May 10, 1993, Plaintiff applied for an Assistant

General Manager position with Staten Island Rapid Transit

Operating Authority (“SIRTOA”), a subsidiary of the MTA.

Selectic.s for this post required ten years of specialized

operational, mechanical, administrative, and regulatory railroad

experience. (Herman Aff. Ex. 27.) Plaintiff did not meet these

qualifications and was not awarded the position. (Herman Aff.

Ex. 5.) The position was subsequently eliminated in a corporate

reorganization. (Herman Aff. q 10.)

On August 18, 1993, Plaintiff applied for the high-level

position of General Manager, Surface Transit, Staten Island.

The General Manager is responsible for transportation,

maintenance, administration, and operation of all the buses on

Staten Island, and oversees a more that $85 million operating

budget. (Herman Aff.Ex. 30.) Plaintiff possessed none of the

qualifications for this job and was not hired for the position.

The successful candidate had been employed by NYCTA since

1977 in a variety of bus and subway management positions.

(Herman Aff.Ex. 31.)

On January 20, 1994, Plaintiff applied for the position

of Director, Labor Relations. This position was essentially the

same post held by Plaintiff in Staten Island, but served a larger

borough. Althea Richardson, a black female, accepted the

position. Unlike Plaintiff, Ms. Richardson was licensed to

practice law in New York, which was a requirement for the job.

(Herman Aff., Ex. 33, 4 11.)

lSa

Plaintiff's Job Performance

During his several years of employment with

MaBSTOA, Plaintiff initially received satisfactory reviews,

however, those reviews slowly declined. At the end of

Plaintiff's first full year on the job, in March 1990, Plaintiff

received a rating of “fully satisfactory” during his performance

evaluation. (Herman Aff., Ex. 8.) The next year, plaintiff again

received a “fully satisfactory” rating. (Herman Aff., Ex. 9.)

Plaintiff did not file a timely charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC

Charge”) concerning either of these reviews.

In 1992, Plaintiff's performance was again reviewed

and deemed “fully satisfactory.” The review, however,

criticized Plaintiff's conduct at an arbitration hearing in which

Plaintiff was representing Staten Island bus management, and

characterized that conduct as having “bordered on

... competent.” (Herman Aff. Ex. 16.) Plaintiff filed a written

response to this evaluation and refused to sign it.

A year later, in March 1993, Plaintiff's performance

was rated as “poor”.’ (Herman Aff. Ex. 26.) The review cited

missed deadlines, lack of responsiveness to other managers and

to unions, failure to follow instructions, unauthorized time off,

” At that time, employee evaluations were based on a four-

tier scale: “extraordinary,” “superior,” “fully satisfactory,” and

“less than fully satisfactory.” The next year, however, the rating

system was changed to a five-level system with the following

ratings: “extraordinary,” “superior,” “fully satisfactory,”

“marginally satisfactory,” and “less than fully satisfactory.”

(Herman Aff., Ex. 9.)

* The ratings had been changed to a new four-tier system of:

“excellent,” “good,” “marginal,” and “poor.”

loa

and poor preparation for hearings and arbitrations as the

impetus for the rating. (Id.)

Plaintiff's Termination

On March 25, 1994, Plaintiff left work after suffering what he

believed to be a heart attack, but was in fact a stress-related

action. (Roth Aff. Ex. 1 at 73-77.) Plaintiff was absent from

work for a period of 13 months. At the end of that time,

MaBSTOA gave Plaintiff notice that, pursuant to company

_ policy, he would be terminated as of May 23, 1995 ifhe did not

return to work. (Herman Aff. Ex. 4.) Plaintiff did not return to

work and was terminated.

Plaintiff’'s EEOC Claims

On February 9, 1993, Plaintiff filed the first of two

EEOC charges naming NYCTA. (Roth Aff. Ex. 2.) That charge

alleged that Plaintiff had always received “good” evaluations

until his “new” General Manager was assigned. The first EEOC

charge alleged that under his new manager, Plaintiff had

received “non-satisfactory” evaluations that led to denials of

promotions and denials of pay increases and that such denials

were based on Plaintiff's race. (Id.)

After leaving his job in March 1994, Plaintiff filed a

second EEOC charge on April 14, 1994. In the second charge,

Plaintiff alleged that he had been subjected to racial

discrimination and retaliation. Specifically, Plaintiff claimed

that since filing his initial charge, he had been denied two

prgmotions, excluded from staff meetings, received declining

performance evaluations, and threatened with demotion and/or

termination. (Roth Aff. Ex. 5.) Following his termination, on

July 6, 1995, Plaintiff added to his first EEOC charge, a claim

that he was terminated because of his race and in retaliation for

— — _

, =

17a

filing complaints and “opposing discrimination.” (Roth Aff.

Ex. 6.)

The EEOC dismissed Plaintiff's charges on April 20,

1998, and Ford commenced this action on July 16, 1998. (Def.

56.1 Stmt. J 77.) In his Complaint, Plaintiff alleges: 1) Title

VII violations of discriminatory failure to promote,

discriminatory termination, and retaliation; 2) EPA violations,

stating that Defendants pay “caucasian employees at rates

lower that the rates at which is pays wages to African-

American employees...” (Compl. 4 60.); and 3) racial

discrimination claims under New York State Human Rights

Law and Title 8 of the Administrative Code of the City of New

York.

Defendants filed the instant summary judgment motion

claiming that following discovery, Plaintiff cannot raise any

genuine, disputed issue of material fact in support of his claims.

Defendants assert that there is no evidence to support Plaintiff's

claims of racial discrimination. Defendants further argue that

Plaintiff's EPA claim is not actionable, Plaintiffs termination

claim is meritless because Plaintiff has testified that he cannot

work, and Plaintiff's retaliation claims are barred by his failure

to offer admissible evidence in support of those claims. Finally,

Defendants argue that Plaintiff's claims against MaBSTOA are

barred by Plaintiff's failure to name that entity in any EEOC

charge.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate when there is no

genuine issue as to any material fact, and the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50

18a

(1986).The burden is on the movant to establish the absence of

any material factual issues, and the facts must be construed in

the light most favorable to the non-moving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). Summary judgment should be granted “against a party

who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Sim v. New York

Mailers’ Union Number 6, 166 F.3d 465, 469 (2d Cir. 1999).

“If reasonable minds could differ as to the import of the

evidence,” summary judgment is inappropriate. Anderson, 466

U.S. at 250.

Once the moving party has made a properly supported

motion for summary judgment, the burden shifts to the non-

moving party to present “significantly probative” supporting

evidence showing that there is a material factual issue for trial.

Id. at 249. “The substantive law governing the case will

identify those facts that are material, and only those facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.” Id. at

248.

II. Equal Pay Act Claim

The EPA, 29 U.S.C. § 206(d), prohibits wage

discrimination on the basis of gender. Under the EPA,

employers are prohibited from paying wages “at a rate less than

the rate at which [they] pay wages to employees of the opposite

sex... for equal work on jobs the performance of which requires

equal skill, effort, and responsibility, and which are performed

under similar working condition...” 29 U.S.C. § 206(d).

Plaintiff's EPA claim alleges disparate pay based on

race, however, the EPA is clearly inapplicable to this case. See

at OS a eine Sas SL

19a

DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 308

(2d Cir. 1986)(finding that “the fundamental purpose of the Act

was to remedy disparities in pay arising from traditional

concepts of gender.”); Belgrave v. City of New York, 95 cv

1507, 1999 WL 692034, at *24 (E.D.N.Y. Aug. 31,

1999)(finding that “claims under the Equal Pay Act asserting

disparities based on...race, or any factor other than sex, must

fail,”(citations omitted).

Plaintiff's Complaint does not allege that Defendants

engaged in gender bias in the payment of wages. Plaintiff first

introduces this claim in his Memorandum in opposition to

Defendants’ Motion for Summary Judgment, stating in a

wholly conclusory fashion that his “salary is clearly below that

of females performing the same function.” (Mem. In Opp. To

Def's Mot. For Summ. J. at 10.) Such allegations are

insufficient to create a valid claim. Accordingly, the Court

concludes that Plaintiff's EPA claim is without merit.

Ill. Tithe VIE Claims

A. Time-Barred Claims

In New York, an EEOC charge claiming violation of

Title VII is time-barred if not filed within 300 days of the

accrual of the claim. 42 U.S.C. § 2000e-5(e). Defendants argue

that Plaintiff's Title VII claims, which challenge the rejection

of Plaintiff's March 1991 application for the Assistant General

Manager, Adnsinistration, Staten Island Division position and

his July 8, 1991 application for the Chief Electrical Officer

position, are time-barred for failure to timely file an EEOC

charge. Plaintiff did not file the first charge until February 9,

1993. Defendants further contend that at that time, the statute

of limitations had expired for such a claim challenging acts

occurring prior to April 15, 1992.

Plaintiff attempts to circumvent the statute of

20a

limitations applicable to these claims by invoking the

continuing violation doctrine. The continuing violation

exception provides that “a plaintiff who files a timely EEOC

charge about a particular discriminatory acts committed in

furtherance of an ongoing policy of discrimination extends the

limitations period for all claims of discriminatory acts

committed under that policy even if those acts, standing alone,

would have been barred by the statute of limitations.” Lightfoot

vy. Union Carbide Corp., 110 F.3d 892 907 (2d Cir.

1997)(citations omitted). The test for a continuing violation is

two-fold: a plaintiff must allege both (1) the existence of an

ongoing policy of discrimination and (2) that a timely act of

discrimination was committed in furtherance of such policy. Id.

“Discrete incidents of discrimination that are unrelated to an

identifiable policy or practice...‘will not ordinarily amount to

a continuing violation,’ unless such incidents are specifically

related and are allowed to continue unremedied for ‘so long as

to amount to a discriminatory policy or practice.” Id. (quoting

Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d

Cir. 1996)).

Plaintiff has satisfied neither prong of this test. Plaintiff

has alleged multiple, unrelated events, as opposed to an

ongoing policy of discrimination. Plaintiffs promotion denials,

negative performance reviews, and eventual termination are the

type of actions normally viewed as discrete incidents

insfficient to trigger the continuing violation exception. See

Wang v. New York City Dep’t of Fin., No. 96-cv-5170, 1999

WL 529550, *11 (E.D.N.Y. July 21, 1999)(finding that

repeated failure to promote, negative performance evaluations,

and ultimate termination did not amount to continuing

violation.); Mareno v. Madison Square Garden, 98 Civ. 2718,

1999 WL 777952, *5 (S.D.N.Y. Sept. 29, 1995)” Multiple

failures to promote are usually viewed as discrete incidents of

discrimination that do not constitute a continuing violation.”’)

ET I a ta Sl A .

Sed ALND RS tee

2la

This Court agrees with Defendants’ assertion that the statute of

limitations has expired for such a claim challenging acts

accruing prior to April 15, 1992. As such, Plaintiff's attempt to

invoke the continuing violation doctrine must fail and the Court

deems Plaintiff's claims relating to the July 8, 1991 and

February 9, 1993 job applications are time-barred.

B. Title VII Standard of Review

Title VII states, in pertinent part, that it is

unlawful for an employer:

to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against

any individual with respect to his

compensation, terms, conditions, or privileges

of employment, because of such individual’s

race, color, religion, sex or national origin.

42 U.S.C. § 2000e-2(a).

In cases claiming discrimination under Title VII, a

plaintiff must carry the initial burden of establishing a prima

facie case of discrimination. Once a plaintiff has proven a

prima facie case, “[t]he burden then must shift to the employer

to articulate some legitimate, nondiscriminatory reason for the

employee’s rejection. McDonnell Douglas Corp. v. Green, 411

U.S. 792, 804 (1973). After the employer has responded, the

employee must be afforded an opportunity to prove the

existence of factual issues demonstrating that the stated reasons

were merely a pretext for discrimination.” Meiri v. Dacon, 759

F.2d 989, 997 (2d Cir. 1985). Accordingly, “a court must enter

summary judgment for defendant when the plaintiff (1) fails to

put forth a prima facie case, of (2) fails to rebut a defendant’s

Zan

well-presented, a non-discriminatory reason for the adverse

employment action.” Wang, 1999 WL 529550 at *12.

C. Discriminatory Failure to Promote Claim

To prove a prima facie case of discriminatory failure to

promote, a plaintit "iust show: (1) that he belongs to a

protected class; (2) that xe applied and was qualified for a job

for which employer was seeking applicants; (3) that, despite his

qualifications, he was rejected: and (4) that, after his rejection,

the position remained open and the employer continued to seek

applications from persons of compiainant’s qualifications.

McDonnell Douglas Corp., 411 U.S. at 802.

In the instant case, Plaintiff alleges that he applied for

ten separate position, and that all of them were given to

applicants who “had significantly less seniority, experience and

qualifications than Plaintiff...[and] were not African-

American.” (Compl. ¥ 57.) Plaintiff cannot, however, establish

a prima facie case for any of these promotion claims. The court

had determined herein that Plaintiff's first two failure promote

claims are time-barred. The Court also finds that Plaintiff's

remaining eight failure to promote claims are meritless.

Plaintiff claims to have applied for a promotion to

Senior Director of Labor Research. Defendants assert that there

was no posting for such a job opening. Plaintiff does not

address Defendants’ contention in his Memorandum in

Opposition to Defendants’ Motion for Summary Judgment, nor

in his Rule 56.1 Statement of Undisputed Facts. Accordingly,

Defendants’ assertion is deemed admitted and Plaintiff cannot

sustain this claim as a matter of law. On May 28, 1992,

Plaintiff applied for a Labor Counsel position with the MTA,

an agency separate and distinct from either of the Defendant

agencies. Defendants assert, and Plaintiff does not refute, that

Defendants did not participate in any MTA employment

Se eo wee eee

23a

decision. In light of this fact, Defendants cannot be held

responsible for a separate agency’s failure to hire Plaintiff See

Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d

Cir. 1995).

There are four positions for which Plaintiff cannot

establish a prima facie case of discriminatory failure to promote

because he cannot prove that he was qualified for the jobs or

that a less qualified applicant was awarded the positions. These

positions are Director, Surface Transit Support; General

Manager, Bronx Division; General Manager, Surface Transit;

and Assistant General Manager, SIRTOA. The record Clearly

indicated that in three of the four cases, Plaintiff lacked primary

qualifications for these positions, while the successful

candidates met these qualifications. (Herman Aff. Ex. Py bay 22)

25, 30, 31; Def. Mem. In Support of Summ. J. at 16-17.) The

Assistant General Manager position was never filled, however,

Defendants have demonstrated that Plaintiff lacked the

necessary qualifications for that job as well. (Herman Aff. Ex.

are

Finally, Plaintiff sought two promotions for which he

arguably may have been qualified. The first was his April 7,

1992 application for Senior Director, Labor Research and

Negotiations. Plaintiff's application was rejected, however, the

position was not filled until 1995 and was filled by a candidate

who had previously been Director, Labor Research and

Negotiations. Plaintiff also sought, on January 20, 1994, to be

promoted to Director, Labor Relations. Defendants further

refute Plaintiffs claim by stating that the successful applicant

was a Black female, thus negating the charge of racial bias.

(Herman Aff. J 11.) Even assuming, arguendo, that Plaintiff

could establish a prima facie case as to either of these

promotion denials, Plaintiff has failed to prove that

Defendants’ non-discriminatory explanation for rejecting

Plaintiff was were pretext.

ro.

ata

Defendants have submitted ample documentation that

hiring decisions were motivated by Plaintiffs declining job

performance. There are a plethora of documenis attesting to

Plaintiff's less than stellar job performance. (Herman Aff. Ex.

3.) This evidence consists of a series of progressively poor

performance evaluations, critical interoffice memoranda from

Plaintiff's superiors, and letters of complaint from workers

within the agency with whom Plaintiff interacted.

In contrast, Plaintiff has not offered any admissible

evidence that racial animus was the cause of Defendants’

failure to promote him and that Defendants’ proffered

explanations are mere pretext for such animus. Although

Plaintiff testified in his deposition that he had “notes” of

conversations he had overheard among NYCTA management

staff, in which management allegedly made remarks indicating

racial bias, Plaintiff did not respond to Defendants’ request to

produce the notes during discovery. (Roth Aff. Ex. 1 at 56-61,

Def’s Mem. In Support of Mot. For Summ. J. at 19-20.)

Plaintiff also claimed to have a written “record” suppo: ing his

claim that unnamed white managers had been promoted while

Plaintiff's multiple requests for promotion were denied,

however, these records were also requested during discovery

and Plaintiff failed te produce them. (Roth Aff. Ex. | at 61-63;

Def’s Mem. In Support of Mot. For Summary J. at 19-20.)

Defendants argue that Plaintiff is now precluded from

offering these documents in support o“his allegations. Federal

Rule of Civil Procedure 37(c)(1) provides: “A party that

without substantial justification fails to disclose information

required by Rule 26(a) or 26(e)(1) shall not, unless such failure

is harmless, be permitted to use as evidence at a trial, at a

hearing, or on a motion, any witness or information not so

disclosed.” Fed. R. Civ. P. 37(c)(1). “A party opposing a

motion for summary judgment simply cannot make a secret of

a i Le PAT TE I LEA RAEN pte Eases iN ti Te é=

ant et

25a

his evidence until the trial for in doing so he risks the

possibility that there will be no trial.” Meiri v. Dacon et al, 759

F.2d 989, 998 (2d Cir. 1985)(citing Donnelly v. Guion, 467

F.2d 290, 293 (2d Cir. 1972)). Plaintiff would clearly be

precluded fom using as evidence those requested materials

which Plaintiff has withheld from his opponent. As Plaintiff

has produced no admissible evidence in support of his

allegations of racial discrimination, his bald assertions are

insufficient to defeat the instant summary judgment motion.

D. Discriminatory Termination

To state a prima facie case of discriminatory

termination, along with other requirements, Plaintiff must make

a threshold showing that he was qualified to work at his

position. See Gregory v. Daly, 243, F.3d 687, 696 (2d Cir.

2001). Plaintiff was terminated on May 23, 1995, after a year-

long absence due to medical problems. Plaintiff testified that he

has been unable to work since early 1994. (Roth Aff .Ex. 1 at

76-77.) Accordingly, the Court agrees with defendants’

assertion that Plaintiff fails to state a prima facie case for

discriminatory termination as a matter of law. Id.

E. Retaliation Claims

Section 704(a) of the Civil Rights Act of 1964 provides

that “it shall be an unlawful employment practice for an

employer to discriminate against any of his

employees...because he has opposed any practice made an

unlawful employment practice by this subchapter.” 42 U.S.C.

§2000e-3(a). “Title VII thus prohibits retaliatory adverse

employment actions against an employee who opposes alleged

discriminatory practices.” Belgrave v. City of New York, 95

CV 1507, 1999 WL 692034, *31 (E.D.N.Y. Aug. 31, 1999).

26a

Under the analysis directed by the United States Court of

Appeals for the Second Circuit, a plaintiff established a prima

facie case of retaliation by showing (1) participation in a

protected activity known to the defendant; (2) and employment

action adverse to the plaintiff; and (3) a causal connection

between the protected activity and the adverse employment

action. Torres v. Pisano, 116 F.3d 625,639 (2d Cir.), cert

denied, 118 S.Ct. 563 (1997).

Essential to a successful retaliation claim is the third

prong of the prima facie case requiring proof of a causal

connection between the protected activity and the adverse

employment action. “A plaintiffmay establish proof ofa causal

connection indirectly by showing that the protected activity

was followed closely by discriminatory treatment, or through

other evidence such as disparate treatment of fellow employees

who engaged in similar conduct, or directly through evidence

of retaliatory animus directed against a plaintiff by a

defendant.” Id. (internal quotation marks and citations omitted).

Plaintiff alleges retaliatory failure to promote and

retaliatory termination. Plaintiff has offered only conclusory

allegations in support of his claims and has failed to meet his

burden of presenting a prima facie case. Plaintiff has not shown

that any person who made any employmcut decisions affecting

Plaintiff was aware that he had filed an EEOC charge, nor has

Plaintiff shown a temporal connection between the protected

activity and the adverse employment actions. Plaintiff was

terminated in 1995, long after his first EEOC charge was filed

in 1993. Furthermore, Defendants have established that

Plaintiff's termination was pursuant to a company policy of

terminating employees who were absent from the workplace for

more than one year. Plaintiff has clearly not met his burden,

and there for, his retaliation claims must fail.

Cae aa A nate TNS LBA, TO at I ee ae

SAAT S Rar ind ee pa een eas en ner

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;

27a

F. State and City Claim

Although Defendants claim that Plaintiff's state and city

claims are time-barred by the applicable statute of limitations,

the Court need not reach that determination. The Court has

found each of Plaintiff's federal claims to be meritless, and

therefore declines to exercise its discretion to entertain

Plaintiff's pendant state law claims. “While a district court

retains the discretion to exercise pendant jurisdiction and

entertain state law claims one all federal claims have been

dismissed, See Enercomp, Inc. v. McCorhill Publishing, 873

F.2d 536, 545 (2d Cir. 1989), generally “if the federal claims

are dismissed before trial, ... the state claims should be

dismissed as well.” Maric v. St. Agnes Hosp. Corp., 65 F.3d

310, 314 (2d Cir. 1995)(citing United Mine Workers v. Gibbs,

333 U.S. 715, 726 (1996)).‘

* As this Court has now disposed of each of Plaintiff's

claims, the Court declines to reach the issue raised by Defendants as

to whether MaBSTOA is a proper defendant in this action.

28a

CONCLUSION

The Court concludes that Plaintiff has not raised any

issues of material fact sufficient to preclude a finding of

summary judgment in Defendants’ favor. Accordingly,

Defendants’ Motion for Summary Judgment, pursuant to Fed.

R. Civ. P. 56, is hereby GRANTED. The Clerk of the Court is

Ordered to close this case.

SO ORDERED.

Dated: May 31, 2001

Brooklyn, New York

s/ Sterling Johnson, Jr.

U.S.D.J.

FILED

In Clerk’s Office

U.S. District Court, E.D.N.Y.

June 8, 2001

BROOKLYN OFFICE

Ceca ea aE Anat de nc

abit TP ih tibet LAT NR eit a

29a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 21* day of

August, two thousand and two.

PRESENT:

HON. GUIDO CALABRESI,

HON. ROSEMARY S. POOLER

HON. ROBERT D. SACK,

Circuit Judges.

30a

GLADSTONE FORD,

Plaintiff-Appellant,

NEW YORK CITY TRANSIT AUTHORITY,

and MANHATTAN AND BRONX SURFACE

OPERATING AUTHORITY,

Defendants-Appellees.

For Plaintiff-Appellant: GLADSTONE FORD, pro se,

Brooklyn, New York

For Defendants-Appellees: Barbara M. Roth, Torys, LLP

New York, New York

A TRUE COPY

Roseann B. MacKechnie, CLERK

by s/

DEPUTY CLERK

ISSUED AS MANDATE: 9/11/02

}

3la

Appeal from the United States District Court for the Eastern

District of New York (Sterling Johnson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the District Court be and it hereby is AFFIRMED.

Plaintiff-Appellant Gladstone Ford appeals from an

entry of summary judgment by the United States District Court

for the Eastern District of New York Sterling Johnson, Jr.,

Judge) on Ford’s Title VII race discrimination and retaliation

claims, which arise under 42 U.S.C. § 2000e.'

BACKGROUND

Gladstone Ford’s (‘Plaintiff’) claims grow out of

various purported incidents of race discrimination during the

course of his employment with the Manhattan and Bronx

Surface Transit Operating Authority (MABSTOA), a statutory

subsidiary of the New York City Transit Authority (NYCTA)

(“Defendants”). Plaintiff, an attorney admitted to the District of

Columbia bar was hired in march 1989 by MABSTOA, as

Manager of Labor Relations for the Staten Island Division,

'Ford also brought claims under *** 29 U.S.C. § 206(d), and

state *** Law. The district court granted *** to the defendants on the

Equal *** and, having dismissed all *** action, declined to hear the

*** claims,

32a

Department of Buses. His duties included handling grievance

appeals and arbitrations, and otherwise administering labor

relations and labor contracts for the Staten Island Division. On

the record before us, his performance was judged to be

middling from the start, and spiraled downward from mid-1991

to 1994. During the same period, he applied for numerous high-

level positions, but was offered none of them. Ford took leave

for medical reasons on March 25, 1994, and never returned to

work. A year later, MABSTOA notified Ford that, pursuant to

MABSTOA policy, he would lose his position if he failed to

return. He was subsequently terminated effective May 23,

1995.

Plaintiff's Performance Evaluations

Plaintiff's first MABSTOA performance evaluation,

covering March 27, 1989 to March 27, 1990, rated him as

“fully satisfactory,” the second-to lowest category on a four-

point scale. The next year, under new supervisors, George

Governale and Frederick L. Herman, Plaintiff again received a

“fully satisfactory,” now the third rung out of five on a revised

ratings scale. Governale and Herman remained Plaintiff's

supervisors for most of the period under dispute. In 1992,

Plaintiff received another “fully satisfactory,” but was cited for

“marginal” organization, planning and leadership abilities. This

echoed earlier comments from Prendergast about Plaintiff's

lack of initiative. Plaintiffs 1992 evaluation also referenced an

irate internal memo accusing Plaintiff of blatantly undermining

his client (Staten Island bus management) during an arbitration

proceeding. This was one of many memos from colleagues and

clients that, starting in June of 1991 and continuing for the

balance of Plaintiff's tenure, registered assorted complaints

about Plaintiff's performance: missed meetings and

33a

arbitrations, failures to submit documents on time, submission

of incomplete documents, inappropriate demeanor, inattention

to facts, and more. Plaintiff's March, 1993 review downgraded

him to “poor,” the lowest possible rating, noting among other

things some of these complaints. His final review, in March,

1994, also graded him “poor,” and recommended his removal.

Plaintiff's Efforts to Secure Promotion

In 1991, Plaintiff started applying for senior positions

within MABSTOA and NYCTA. Postings for many of these

jobs required candidates to have years of management and/or

specialized mass-transit experience. Though worldly and well

educated, Plaintiff lacked the relevant years of learning-by-

doing mandated in the postings.

Plaintiff's first target, in March of 1991, was the

position of Assistant General Manager, Administration, Staten

Island Division, which position was eliminated without being

filled. On July 8, 1991, he put in his name for Chief Electrical

Officer, the official in charge of all aspects of the signal, power

distribution, and communication system for NYCTA’ subways.

The position was filled by a high-level manager from the Car

Equipment Division, who previously oversaw maintenance and

repair of the NYCTA’s entire fleet of subway cars. On April 7,

1992, Plaintiff applied to be Senior Director, Labor Research

and Negotiation, a position that went unfilled until 1995, some

time after Plaintiffhad stopped working, Not two months later,

on May 28, Plaintiff entered his resume for the position of

Labor counsel with the Metropolitan Transportation Authority,

an entity whose personnel practices are *** To the

Defendants’. Plaintiffs *** States that he applied on

September *** Director, Surface Transit (P]. Complaint

{ 31). On October 20, 1992, Plaintiff sought the position of

34a

General Manager, Bronx division, with budget responsibilities

of $200 million and oversight of depots responsible for 1000

buses. The position was filled by an applicant who came from

a similar position where he managed hundreds of buses,

thousands of employees, and budgets in the hundred millions.

On May 10, 1993, Plaintiff applied to be Assistant

General Manager, Staten Island Rapid Transit Operating

Authority, a subsidiary of MTA. The position was eliminated

due to corporate reorganization before being filled. Later that

summer, Flaintiff tried for the position of General Manager,

Surface Transit, Staten Island, but he had nowheve near the

number of years of transport-industry and management

experience stipulated for the job.

Early in 1994, Plaintiff sought to become Director,

Labor Relations for Brooklyn. For Plaintiff, this position would

have been a lateral transfer to a larger borough. The chosen

applicant was a black woman who, unlike Plaintiff, was

licensed to practice law in New York. This was the last of

Plaintiff's applications, for on March 25, 1994, claiming job-

related stress, Plaintiff took leave from work and did not return.

Plaintiff's Employment Discrimination Complaints

On March 20, 1992, Plaintiff registered charges against

his supervisor, George Governale, with the internal Affirmative

Action/Equal Employment Opportunity Office (“EEO”’) that

served MABSTOA and NYCTA employees. Plaintiff

complained that on account of race and color, Governale gave

him low performance ratings, denied him promotions and

raises, and generally prevented him from getting the high-level

positions he had sought. On January 11, 1993, the EEO

reported that its investigation uncovered no evidence of the

alleged discrimination. A month later, on February 9, Plaintiff

35a

filed the first of two charges with the federal Equal

Employment Opportunity Commission (EEOC) against

NYCTA. He claimed that he had always received “good”

evaluations until a “new” manager was assigned to him,

whereupon his evaluations plummeted and so too his prospects

for raises and promotion.

The next EEOC filing came on April 14, 1994, nearly

a month after Plaintiff had stopped working. Here again he

claimed that on account of race he had been denied promotions

and suffered poor evaluations, and to this he added that he had

recently been threatened with “demotion and/or termination.”

On July 6, 1995, soon after his firing, Plaintiff amended his

first EEOC complaint, positing race and retaliation as the

reasons for his termination. |

The Instant Lawsuit

The EEOC dismissed Plaintiff's charges on April 20,

1998, and he began the present action on July 16, of that year.

Two years into the proceedings, on June 9, 2000, the

district court issued an order at the parties’ behest revising the

briefing schedule on Defendants’ motion for summary

judgment. This was the second extension granted, and the court

stated that it would be the last. Under the new and final

schedule. Defendants were to serve their motion for summary

judgment by June 28, 2000. Plaintiff was to submit his papers

in opposition by August 14, 2000, and Defendants were to file

their reply by September 11, 2000. Defendants were punctual,

serving their papers on June 28. Plaintiff was not, and on

August 23, nine days after his papers were due, he sought the

extension the court had warned would not be given. The district

court denied the motion, on ground of (1) its previous, explicit

order, and (2) the tardiness of Plaintiff's application. Plaintiff

36a

thereupon submitted his opposition papers on August 29,

fifteen days late, and they were, seemingly, accepted. Despite

losing a full two weeks to Plaintiff's protraction, Defendants

turned in their reply memo by the appointed date, September

11, 2000. In this reply, Defendants observed that Plaintiff had

submitted neither admissible evidence or affidavits in

opposition to Defendants’ motion, nor a proper statement of

facts, as required by Local Civil Rule 56.1. They noted that

F 'aintiff was obliged to “identify all alleged genuine issues of

material fact to be tried, each of which ‘must be followed by

citation to evidence which would be admissible.’” Reply Mem.

of Law in Supp. Of Defs.’ Mot. For Summ. J. at 3. The

purported 56.1 Statement, Defendants added, featured “not a

single citation to anything.” Jd.

On September 21, ten days after Defendants had served

their reply and four weeks after Plaintiff had filed his

opposition papers, Plaintiff sought leave of the court to

supplement his papers with a “small amount” of legal argument

plus some “inadvertently” omitted exhibits. Letter from

Thomas F. Bello to the Hon. Sterling Johnson, Jr., Sept. 21,

2000, at 1. Plaintiff justified the request with reference to

““misunderstandings among counsel” about possible extensions

beyond August 14 deadline for Plaintiff’ s opposition papers. Jd.

Defendants responded that such supplementation would

“seriously” prejudice iheir case, as they had already served

their reply papers. Letter from Barbara Roth to the Hon.

Sterling Johnson, Jr., Sept. 25, 2000, at 2. The district court

denied Plaintiff's request.

Throughout all this time, Plaintiff, who is in any event

an attorney, was counseled.

On May 31, 2001, the district court granted the

Defendants’ motion for summary judgment. This appeal

followed.

37a

On appeal, Plaintiff argued first that the district court

abused its discretion (1) in relying on certain affidavits from

Frederick L. Herman, Plaintiff’s erstwhile supervisor, and

Barbara Roth, Defendants’ attorney; (2) in allowing Defendants

to use an unsigned copy of Plaintiffs deposition transcript; and

(3) in barring Plaintiff from belatedly supplementing his papers

in opposition to Defendants’ motion for summary judginent.

More broadly, Plaintiff contends that the district court

mistakenly granted summary judgment to Defendants on

Plaintiff's Title VII race discrimination and retaliation charges.

DISCUSSION

We review a district court’s decisions respecting

extensions of time in procedural matters for abuse of discretion,

Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984)

(addressing Fed. R. Civ. P. 6(b)(2)), which is “one of the most

deferential standards of review.” Raishevich y. Foster, 247 F.

3d 337, 344 *2d Cir. 2001) (citation and internal quotation

marks omitted).

A district court’s grant of summary judgment we review

de novo, with all evidence construed in the li ght most favorable

to the nonmoving party. Reg’] Econ. Cmty. Action Program,

Inc. v. City of Middletown, 294 F.3e 35, 45 (2d Cir. 2002).

Summary judgment is in order, however, where “the record

taken as a whole could not lead a rational trier of fact to find for

the non-moving party.” /d. *(citation and internal quotation

marks omitted).

We consider first the court’s refusal to allow Plaintiff to

supplement his opposition papers. Fed. R. Civ. P. 6 governs

extensions of time in relation to court orders. In relevant part,

it provides that a court may “upon motion made after the

38a

expiration of the specified period permit the act to be done

where the failure to act was the result of excusable neglect.”

Fed. R. Civ. P. 6(b)(2). “{W]hether neglect is excusable in a

particular case rests with the sound discretion of the district

court.” Davidson, 740 F.2d at 132 (citation and internal

quotation marks omitted). In Davidson, because the nonmoving

party failed to seek an extension prior to the motion return date,

we sustained a trial judge’s decision to exclude from

consideration opposition papers to a motion to dismiss. Jd.

Though the appellants had proffered a plausible excuse—not

being able to locate essential nonparty witnesses before the

return date—we point out that this fact “does not explain why

appellants failed to request additional time prior to” the court-

set date. /d. at 132.

In the instant case, the first post-deadline extension was

sought on the ground that Plaintiff's lawyer had been busy with

another trial and deposition, i.e., the quotidian practice of law.

Moreover, as in Davidson, nothing in the nature of the

attorney’s “excuse” prevented him from seeking a pre-deadline

extension. Having submitted his opposition papers two weeks

late, having benefitted from a de-facto extension, having

reduced by half Defendants’ time to file their reply, Plaintiff

had no tenable basis for seeking leave to file a surreply, at least

where the proffered excuse had nothing to do with anything

new in Defendants’ reply papers. The district court’s denial of

that leave lay well within its discretion.

Plaintiff tries to end-run the consequences of his

omissions below by asking us to consider afresh whether the

affidavits submitted with Defendants’ motion for summary

judgment were proper, and whether Defendants wrongly put

into the record an unsigned copy of Plaintiff's deposition.

Plaintiff had his chance to raise these questions in his

————

39a

opposition papers and did not do so.” We decline to permit him

to raise them at this late date. See H. Sand & Co., Inc. v.

Airtemp Corp., 934 F.2d 450, 455 (2d Cir. 1991) (treating as

waived on appeal plaintiff's newfound objections to affidavits

submitted with the defendants’ motion to dismiss), Jn re

Teltronics Servs., Inc., 762 F.2d 185, 192 (2d Cir. 1985)

(“[Appellant] waived any objection to the affidavit by failing

to move to strike it..”); ef Van Praag v. Columbia Classics

Corp., 849 F.2d 1106, 1110 (8" Cir. 1988) (holding that trial

judge did not err in allowing use of unsigned depositions,

where the objecting party had copies of the depositions and

notice of the other party’s intention to use them).

Plaintiff's Title VII retaliation and discrimination

claims center on the nine occasions, described above, on which

he applied for but did not receive high-level positions.’ He

claims also that his firing was in retaliation for his EEOC

complaints. He did not, however, in his opposition papers, as

required under Local Rule 56.1, traverse Defendants,

explanation for these events. Under the circumstances, the

district court correctly granted summary judgment. Even

assuming, arguendo, that Plainti:. made out a prima facie case,

he did not, as required, present evidence sufficient to permit a

jury to find that Defendants’ explanations were pretextual. See

Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)

? Plaintiff not only failed to do so, he tacitly accepted the

unsigned deposition by repeatedly citing it in his opposition. See

Mem. of Law in Opp’n to Defs.’ Mot. For Summ. J., at 4,5,6,7,8.

* The sum total of Plaintiff's applications for promotions is

slightly uncertain. Plaintiffs brief claims that he applied for “at least

ten,” but does not corroborate this number. Appellant’s Br. At 2.

Defendants and the trial court identify nine applications, which are

the ones we consider here.

40a

(“The plaintiff must produce not simply some evidence, but

sufficient evidence to support a rational finding that the

legitimate, non-discriminatory reasons profiered by the

defendant were false, and that more likeiy tran not

discrimination was the real reason for the employment action.”’)

(citation and internal quotation marks omitted).

We have considered Plaintiff's remaining arguments

and adjudge them meritless. Accordingly, the trial court’s

ruling is AFFIRMED."

FOR THE COURT:

Roseann B. Mackechnie, Clerk

By: s/ Oliva M. George, Deputy Clerk

FILED

United States Court of Appeals

Second Circuit

Aug. 21, 2002

4 Our resolution of the Title VII claims renders moot

Defendants’ argument that we should dismiss the instant appeal due

to the alleged noncompliance of Plaintiff's brief with the Federal

Rules of Appellate Procedure.

_ ene

4la

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

GLADSTONE FORD,

Plaintiff, ;

00 CV 3301 (SJ)

-against-

ORDER

UNITED STATES DEPARTMENT OF

THE TREASURY INTERNAL REVENUE

SERVICE, UNITED STATES OF

AMERICA, OWCEN FEDERAL BANK,

FSB, DIME SAVINGS BANK OF NEW

YORK, FSB.

Defendants.

APPEARANCES

GLADSTONE FORD

821 Hancock St., Apt. # 1-L

Brooklyn, NY 11233

Plaintiff, Pro Se

U.S. Department of Justice

Tax Division, Northern Region

P.O. Box 55

Ben Franklin Station

Washington, DC 20044

By: _Bonni Perlin, Esq.

Attorney for the Government

JOHNSON, District Judge:

For the reasons stated on the record at the July 16"

hearing, defendants’ motion to dismiss 1s GRANTED. The

Clerk of the Court is directed to close this case.

SO ORDERED.

s/ Johnson

U.S.D.J.

Dated: August 24, 2001

Brooklyn, New York

FILED

In the Clerk’s Office

U.S. District Court E.D.N.Y.

Aug. 28, 2001

43a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

GLADSTONE FORD,

Plaintiff,

JUDGMENT

00-CV-33-1 (SJ)

-against-

UNITED STATES DEPARTMENT OF

THE TREASURY INTERNAL REVENUE

SERVICE, UNITED STATES OF

AMERICA, OWCEN FEDERAL BANK

FSB, DIME SAVINGS BANK OF NEW

YORK, FSB,

Defendants.

An Order of Honorable Sterling Johnson, United States

District Judge, having been filed on August 28, 2001, granting

defendant’s motion to dismiss for the reasons stated on the

record at the July 16, 2001 hearing; and directing the Clerk of

the Court to close the case; it is

ORDERED and ADJUDGED that plaintiff take

nothing of the defendants; and that defendant’s motion to

dismiss is granted.

Dated: Brooklyn, New York

September 13, 2001 FILED

In Clerk’s Office

U.S. District Court, N.Y.

Sept. 12, 2001

44a ~

CIVIL CAUSE FOR PRE TRIAL CONFERENCE

BEFORE JUDGE: _ JOHNSON, J.

DATE: July 16, 2001 TIME: 9:30 A.M.

DOCKET NUMBER: 00CV03301

TITLE: Ford v. U.S. Dept. Treasury, et al

COURT DEPUTY:

AUGUST MARZILIANO CR OR ESR: s/ Mike Picozzi

APPEARANCES:

FOR PLAINTIFF: Gladstone Ford

FOR DEFENDANT: Bonni Perlin, Esq.

Via Phone

Cynthia Butera~Dime Savings

Vincent Surico-Ocwen For Bank

w CASE CALLED

es COUNSEL FOR ALL SIDES PRESENT

a) COUNSEL FOR

a) HEARING HELD

0 PRETRIAL CONFERENCE HELD

0 PARTIES ADVISE THE COURT THAT THE CASE

HAS BEEN SETTLED.

45a

CASE DISCONTINUED WITHOUT PREJUDICE

AND WITHOUT COSTS.

ALL DISCOVERY TO BE COMPLETED

DISCDDL

JOINT PRE TRIAL ORDER TO BE

FILED

PTRLODDL

Deft’s MOTION_ To Dismiss ARGUED

MOTION HEARING HELD

MOTION GRANTED

MOTION DENIED

MOTION GRANTED IN PART AND DENIED IN

PART

DECISION RESERVED

DECISION READ INTO THE RECORD

MOTION HEARING ADJOURNED TO ne

PRE TRIAL CONFERENCE SCHEDULED

FOR _

PTRLCNFDDL

46a

0 JURY TRIAL SCHEDULED FOR

JYTRLDDL

s) BENCH TRIAL SCHEDULED FOR_____

BNTRLDDL

DOCKET CLERKS: PLEASE ENTER

APPROPRIATE DEADLINES IF CHECKED

OFF

— on,

47a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

00 CV 03301

Plaintiff,

-against- : United States Courthouse

Brooklyn, New York

U.S. DEPT. TREASURY, et al,

Defendants. July 16, 2001

ietetetatitateteietaatatatatdatetetataiatate X 9:30 0’clock a.m.

TRANSCRIPT OF CONFERENCE

BEFORE THE HONORABLE STERLING JOHNSON, JR

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: GLADSTONE FORD, pro se

For the Defendant: VINCENT SURICO, ESQ.

CYNTHIA BUTERA, ESQ.

BONNI PERLIN, ESQ.

(Via Telephone.)

48a

Court Reporter: Michael Picozzi

225 Cadman Plaza East

Brooklyn, New York

718-260-2547

Proceedings recorded by mechanical stenography, transcript

produced by computer.

THE CLERK: Ford versus United States Department of

Treasury.

MR. FORD: Gladstone Ford.

MS. BUTERA: CynthiaBUTERA.

MR. SURICO: Vincent S URICO. Rockland Federal Bank

THE COURT: Is she on?

THE CLERK: Can you hear us on the telephone?

MS. PERLIN: Yes.

THE COURT: I will read my decision into the record.

Plaintiff anpearing pro se brings this action seeking relief from

a New York State Supreme Court judgment of foreclose.

Presently before the Court are defendants Dime Savings Bank

of New York and the United States’ motion to dismiss

plaintiff's complaint for lack of subjéct matter jurisdiction,

pursuant to Federal Rule of Civil Procedure 12(b) (1), and for

failure to state a claim, pursuant to Federal Rule 12 (b) (6).

49a

For the reasons stated below, defendants’ motions are granted.

In considering a motion to dismiss, the Court must

accept as true all material factual allegations in the complaint

and draw all inferences in favor of the pleader. See Mills versus

Molecular Corp. 12 F.3d 1170, 1174, a Second Circuit 1993.

Additionally, the Court recognizes that a plaintiff proceeding

pro se must be given wide latitude and a court must make

reasonable allowances so that a plaintiff does not forfeit his

rights te virtue of his lack of legal training. See Smith versus

Weinberger, I’.C., 994 Fed. Supp. 418, 422 Eastern District

New York 1998. A plaintiffs pro se status, however, does not

exempt him from compliance with relevant rules of procedural

and substantive law. See Ferran versus Town of Nassau, 11

F.3d 21, 22, Second Circuit, 1993.

With this backdrop in mind, the Court turns to the

merits of defendants’ motions to dismiss pursuant to 12(b) (1).

Defendants contend that the Court should dismiss plaintiff's

action because it lacks subject matter jurisdiction.

Under the Rooker-Feldman doctrine, a federal district

court lacks subject matter jurisdiction over a case if the exercise

of jurisdiction would result in the reversal or modification of a

state court judgment. See Hachamovitch versus DeBuono 159

F.3d 693, Second Circuit 1998. Such jurisdiction is lacking

because within in the federal system, only the United States

Suyceme Court has appellate jurisdiction to review a state court

judgment. District courts are limited strictly to original

jurisdiction. See Smith, 994 Fed. Supp. at 422-23. Under

Rooker-Feldman, therefore, a plaintiff may not institute an

action in federal district court that directly challenges the

holding or decision of a state court.

Here, plaintiff mounts a direct challenge to the New

York State Supreme Court’s judgment of foreclose. Plaintiff's

complaint seeks an order from this Court declaring that the

New York State judgment of foreclosure is invalid. In light of

50a

the discussion above, to adjudicate plaintiff's claim would run

afoul of the Rooker-Feldman doctrine. Even if the state court

judgment was wrongly procured by fraud, as plaintiff has

alleged, it is effective and conclusive unless it is modified or

reversed in the appropriate state appellate or collateral

proceeding. See Simpson, 20 F. Supp. 2d at 633. Moreover,

while plaintiff contends that the Rooker-Feldman doctrine is

not a bar to an independent action brought under Federal Rule

of Civil Procedure 60, that rule is inapplicable because it

governs federal not state court actions. Accordingly, this Court

lacks subject mater jurisdiction to entertain plaintiff's claim.

For the foregoing reasons, defendants’ motions to

dismiss are granted. Because the Court has determined it lacks

subject matter jurisdiction, defendants’ challenge pursuant to

Federal Rule of Civil Procedure 12(b) (6) need not be

addressed. Additionally, because the Court has the power sua

sponte to dism'ss an action for lack of subject matter

jurisdiction, it now dismisses the action in its entirety as it

relates to the remaining defendant.

MS. BUTERA: Thank you, Your Honor.

5la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS OR

ANY OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of

Appeals for the Second Circuit, held a the United States

Courthouse, Foley Square, in the City of New York, on the

8" day of November Two thousand and two.

PRESENT:

Hon. Richard J. Cardamone,

Hon. Roger J. Miner,

Hon. Robert A. Katzmann,

Circuit Judges.

Gladstone Ford,

Plaintiff-Appellant,

No. 02-6022

-V,.-

United States Department of Treasury Internal Revenue

Service, United States of America, Ocwen Federal Bank,

FSB & Dime Savings Bank of New York,

Defendanis-Appellees.

SUBMITTED FOR APPELLANT: Gladstone Ford, pro se

Brooklyn, New York

SUBMITTED FOR APPELLEES: Thomas J. Clark, Esq.,

United States Department

of Justice, Tax Division,

Washington, D.C., for

United States of

America and United

States Department of

treasury Internal

Revenue Service (Eileen

J. O’Connor, Assistant

Attorney General, and

Robert J. Branman, on

brief).

53a

Andrew S. Fisher, Esq.,

Fisher & fisher, New

York, New York, for

Ocwen Federal Bank,

FSB.

Michael P. Versichelli,

Esq., Rivkin Radler

LLP, Uniondale, New

York, for Dime Savings

Bank of New York,

FSB.

Appeal from the United States District Court for the

Eastern District of New York (Sterling Johnson, Jr., Judge).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the

judgment of the District court is AFFIRMED.

Gladstone Ford, pro se and in forma pauperis, appeals

from the district court’s dismissal, pursuant to Rule 12(b)(1) of

ihe federal Arules of Civil Procedure, of his complaint for lack

of subject matter jurisdiction under the Rooker-Feldman

doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413

(1932); District of Columbia court of Appeals v. Feldman, 460

U.S. 462 (1983).

On an appeal from a dismissal for lack of subject matter

jurisdiction., pursuant to Rule 12(b)(1), we review the district

court’s factual findings for clear error and its legal conclusions

de novo. See Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002).

The teachings of Rooker-Feldman and its progeny

54a

require this Court to affirm the district court’s dismissal of

Ford’s action against Dime and Ocwen. Ford’s claims

regarding the alleged fraud and the statute of limitations with

respect to the foreclosure judgment are inextricably intertwined

with the state court’s underlying foreclosure judgment. See

Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002). In

essence, Ford seeks a declaration that the foreclosure judgment

is void, thereby requiring reversal of the state court foreclosure

judgment. Ford has availed himself of all avenues of relief in

state court, with the state court ruling against him in every

instance. Ford now seeks relief from thestate courts’ decisions,

and, as a result, is barred by Rooker-Feldman. The district

court, therefore, properly dismissed the action against Dime and

Ocwen.

Ford raises several additional arguments on appeal

which we have considered, and find to be without merit.

For the foregoing reasons, the judgment of the disirict

court is AFFIRMED.

FOR THE COURT:

Roseann B. MacKechnie, Clerk

s/ Lucille Carr

FILED

United States Court of Appeals

Second Circuit

Nov. 8, 2002

5Sa

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK, N0007

ROSEANN B. MACKECHNIE

CLERK

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 20" day of May

two thousand three.

Ford

Dkt. No: 02-6022

U.S. Dept. of T

A petition for a panel rehearing and a petition for rehearing en

banc having been filed herein by the appellant pro se Gladstone

Ford.

Upon consideration by the panel that decided the

appeal, it is Ordered that said petition for rehearing is

DENIED.

It is further noted that the petition for rehearing en banc has

been transmitted to the judges for the court in regular active

56a

service and to any other judge that heard the appeal and that no

such judge has requested that a vote be taken thereon.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk

By s/ Arthur M. Heller, Motions Staff Attorney

poccc

inbancdn_frm

FILED

United States Court of Appeals

Second Circuit

May 20, 2003

57a

APPEAL DL-SET

U.S. District Court

New York Eastern (Brooklyn)

CIVIL DOCKET FOR CASE # 98-CV-4768

Ford v. New York City Transi, et al Filed: 07/17/98

Assigned to: Judge Sterling Johnson, Jr.

Referred to: Magistrate Marilyn Dolan Go

Demand: $0,000

Lead Docket: None

Dkt# in other court: None

Jury Demand: Defendant

Nature of Suit: 442

Jurisdiction: Federal Question

Cause: 42:2003 Job Discrimination

GLADSTONE FORD Thomas F. Bello

plaintiff [COR LD NTC]

Thomas F. Bello, Esq., P.C.

387 Forest Avenue

Staten Island, NY 10301

718-981-9191

Gladstone Ford

821 Hancock St., Apt. #1-L

Brooklyn, NY 11233

718-268-9646

NEW YORK CITY Barbara M. Roth

TRANSIT AUTHORITY [COR LD NTC]

defendant

58a

Torys

237 Park Avenue

New York, NY 10017

(212) 880-6000

Evelyn Jonas

694-3892

[COR LD NTC]

New York City Transit

Authority

130 Livingston Street

Brooklyn, NY 11201

(718) 694-3891

MANHATTAN AND Barbara M. Roth

BRONX SURFACE (See above)

TRANSIT OPERATING [COR LD NTIC]

AUTHORITY, (MABSTOA)

defendant

Docket as of October 2, 2001 4:04 pm

Proceedings include all-events.

1:98 cv4768 Ford v. New York City Transi, et ai

APPEAL DL-SET

59a

GLADSTONE FORD

plaintiff

NEW YORK CITY TRANSIT AUTHORITY;

MANHATTAN AND BRONX

SURFACE TRANSIT OPERATING

AUTHORITY, (MABSTOA)

defendant

Docket as of October 2, 2001 4:04 pm

60a

APPEAL DL-SET

Proceedings include all events.

1:98cv4768 Ford v. New York City Transi, et al

7/17/98 1

8/10/98 2

8/12/98 3

10/15/98 4

COMPLAINT filed and summons (es) issued

for New York City Transi, Manhattan and

Bronx, FILING FEE $150.00 RECEIPT #

209115 (ac) [Entry date 07/17/98]

RETURN OF SERVICE executed as to New

York City Transi, and Manhattan and Bronx on

8/5/98. Answer due on 8/25/98 for Manhattan

and Bronx, and New York City Transit. (clp)

[Entry date 08/13/98]

ANSWER to Complaint by New York City

Transi, Manhattan and Bronx; jury demand.

(clp) [Entry date 08/14/98]

Calendar entry: Case called on 10/15/98 for

Initial Conference before Magistrate Go.

Counsel for the parties present. The following

rulings were made: 1. Automatic disclosers and

authorizations must be completed by 11/5/98.

2. Applications for leave to amend and/or join

other parties must be served by 12/31/98. 3.

Factual Discovery must be completed by

5/15/99. (the parties anticipate have no experts).

4. The schedule for dispositive motions will be

discussed at the next conference. Next

Conference scheduled for 4/16/99 at 10:30.

terminated past due deadlines (clp) [Entry date

10/20/98]

4/15/99 5

6/16/99 6

8/16/99 7

8/31/99 8

6la

ORDER dated 4/12/99 granting the parties’

application. Discovery is extended to 6/15/99

and next conference is adjourned to 6/16/99 at

11:00. Signed by Magistrate-Judge Marilyn D.

Go. See letter dated 3/29/99 from Thomas F.

Bello, Esq. to Mag. Go. (clp) [Entry date

04/15/99]

Calendar entry: Case called on 6/16/99 for

Status Conference before Mag. Go. Counsel for

the parties present. RULINGS: Discovery is

extended to 8/15/99 for completion of the

inspection of the remaining documents not

produced by both sides. The parties should be

prepared to discuss at the next conference. Next

conference scheduled for 8/16/99 at 11:00, (clp)

[Entry date 06/17/99]

Calendar entry: Case called on 8/16/99 for

Status Conference before mag. Go. Counsel for

the parties present. RULINGS: Pltf. Must

provide the remaining documents by 8/31/99

and make a settlement demand in advance of

the next conference. Next conference scheduled

for 8/31/99 at 3:00. (clp) [Entry date 08/20/99]

Calendar entry: Before Magistrate Judge

Go-status conference held. Settlement

discussions have reached an impasse. Discovery

must be completed by 10/29/99. Next

conference set for 11/5/99 at 11:30. (Ir) Entry

date 09/01/99]

10/13/99 9

11/16/99 10

12/20/99 11

1/11/00 12

2/15/00 13

62a

ORDER directing that the 11/5/99 conference is

adjourned to 11/16/99 at 11:30. Signed by

Magistrate-Judge Marilyn D. Go on 10/7/99.

See letter 10/6/99 from Evelyn Jonas, Esq. to

Mag. Go. (clp) Entry date 10/13/99]

Calendar entry: Case called on 11/16/99 for

Status Conference before mag. Go. Counsel for

the parties present. RULINGS: Plaintiff must

deliver the documents within on week. Any re-

examination of the plaintiff and deposition of

the former employee of deft. must be taken by

12/17/99. Next conference scheduled for

12/20/99 at 4:00. (clp) Entry date 11/22/99]

Calendar entry: Case called on 12/20/99 for

Status Conference before Mg. Go. Counsel for

the parties present. RULINGS: Discovery is

extended to 1/17/00 only for the purposes of

resolving all outstanding discovery issues. Deft.

‘s pre-motion letter is due 2/17/00 and

plaintiffs opposition is due 2/24/00. The parties

were warned that no extension will be granted.

(Clp) Entry date 12/27/99]

SCHEDULING ORDER setting a Status

conference at 9:30 on 3/2/00 before Judge

Johnson. Signed by Judge Sterling Johnson Jr.,

on 12/29/99. (clp) Entry date 01/11/0]

NOTICE of attorney appearance for Manhattan

and Bronx, New York City Transit by Barbara

M. Roth. (clp) [Entry date 02/16/00]

2/18/00 14

3/8/00 16

3/14/00 15

3/22/00 17

63a

LETTER dated 2/17/00 from Barbara M. Roth

to SJ: setting forth the basis for defts’ mction

for summary judgment dismissing pltffs

claims. (This document returned to SJ’s

chambers, attn: Sharon Taylor) (jag) [Entry

dated 03/10/01]

Calendar entry: Case called on 3/8/00 for

Conference before Judge Johnson. Parties hold

Conf. With Courtroom Deputy. Deft.’s motion

for Summary Judgment to be filed by 5/18/00.

Plaintiff to respond by 6/22/00. Deft. to reply

by 7/6/00. The Court has set a pretrial

conference for 9:30 on 11/9/00 before Judge

Sterling Johnson Jr., (clp) [Entry date

03/14/00]

ORDER: Pltf. To respond to Deft.’s request for

leave to file for summary judgment no later

than 3/8/00. Parties are directed to appear at

status conference in Court Room on 3/8/00 at

12:45. Signed by Judge Sterling Johnson Jr., on

3/1/00. (See faxed copy of letter dated 2/29/00

from Thomas F. Bello, Esq. to Judge Johnson)

(clp) [Entry date 03/14/00]

LETTER sent to docketing dated 3/8/00 from

Todd L. Schkeifstein, Esq. to Judge Johnson

setting forth the briefing schedule for Deft.’s

motion for summary judgment. (clp) [Entry

date 03/22/00]

5/22/00 18

6/16/00 19

6/28/00 25

6/28/00 26

64a

ORDER granting the parties request tc revise

the schedule for degts.’ motion for summary

judgment. New Motion: 6/7/00; Opposition:

7/24/00; Reply: 8/7/00. Signed by Judge

Sterling Johnson Jr., on 5/3/00. (See letter dated

5/2/00 from Barbara M. Roth, Esq. to Judge

Johnson) (clp) [Entry date 05/22/00]

ENDORSED ORDER granting modification in

the briefing schedule for summary judgment

motion. As this modification enlarges the

briefing schedule by two months from the

original date, and is parties second extension,

no further extensions will be granted in this

matter. Parties to adhere to this schedule (see

letter dated 6/7/00 from Barbara Roth, counsel

for defendants, to Judge Johnson). Signed by

Judge Sterling Johnson Jr. on 6/9/0C. (ar)

[Entry date 06/16/00]

MOTION by Manhattan and Bronx, New York

City Transi for summary judgment. Motion file

stamped: 9/11/00 and mailed /served: 6/28/00.

(clp) [Entry date 09/125/00]

Rule 56.1 Statement (formerly Rule 3(g) by

Manhattan and Bronx, New York City Transi

re: [25-1] motion ‘or summary judgment.

Motion file stamped: 9/11/00 and

mailed/served: 6/28/00. (clp) [Entry date

09/25/00]

6/28/00 27

6/28/00 28

6/28/00 29

6/28/00 30

6/28/00 31

65a

MEMORANDUM by Manhattan and Bronx,

New York City Transi in support of [25-1]

motion for summary judgment. Motion file

stamped: 9/11/00 and mailed/served: 6/28/00

(clp) [Entry date 09/25/00]

AFFIDAVIT on Frederick L. Herman on behalf

on Manhattan and Bronx, New York City

Transit in support of [25-1] motion for

summary judgment. (clp) [Entry date 09/25/00]

AFFIDAVIT by Barbara M. Roth on behalf of

Manhattan and Bronx, New York City Transit

in support or [25-1] motion for summary

judgment. Motion file stamped: 9/11/90 and

mailed/served: 6/28/00. (clp) [Entry date

09/25/00]

AFFIDAVIT by Frederick L. Herman on behalf

of Manhattan and Bronx, New York City

Transit in further support of [25-1] motion-for

summary judgment. Motion file stamped:

9/11/00 and mailed/served: 6/28/00. (clp)

[Entry date 09/25/00]

Rule 56.1 Statement (formerly Rule 3(g) by

Gladston Ford re: [25-1} motion for summary

judgment. Motion file stamped: 9/11/00 and

mailed/served: 6/28/00. (clp) [Entry date

09/25/00]

6/28/00 32

6/28/00 33

6/28/00 34

7/12/00 20

8/30/00 21

66a

MEMORANDUM by Gladstone Ford in

opposition for [25-1] motion for summary

judgment. Motion file stamped: 9/11/00 and

mailed/served: 6/28/00. (clip) [Entry date

09/25/00]

RESPONSE by Manhattan and Bronx, and New

York City Transit to Plaintiffs [31-1] statement

pursuant to Local Rule 56.1 (clp) [Entry date

09/25/00

REPLY MEMORANDUM OF LAW by

Manhatfan and Bronx, New York City Transit

JJ in further support of its [25-1] motion for

summary judgment. (clp) [Entry date

09/25/00]

LETTER sert to docketing dated 6/28/00 from

Barbara M. Roth, Esq. to Thomas F. Bello, Esq.

enclosing deft.’s notice of motion for summary

judgment and supporting papers. Encls. Not

attached to this copy) (clp) [Entry date

07/12/00}

ORDER denying plaintiff’s request for

additional time to respond to Deft.’s motion for

summary judgment. Application received after

due date and previous order indicated no further

extensions would be granted. Parties are

directed to negotiate remaining briefing time

such that fully briefed motion is filed on time

with the Court. Signed by Judge Sterling

Johnson Jr., on 8/25/00. (See faxed copy of

- letter dated 8/23/00 from Thoms F. Bello, Esq.

9/1/00 22

9/1/00 23

9/18/00 24

11/3/00 35

67a

to Judge Johnson) (clp) [Entry date 08/30/00]

LETTER sent to docketing dated 8/24/00 from

Jonathan L. Being, Esq. to Judge Johnson

written to alert the Court to and anticipated

problem in complying with the briefing

schedule ordered by the Court for defts. Motion

for summary judgment. (Exhibit A and B

attached) (clp) [Entry date 09/01/00]

LETTER sent to docketing dated 8/24/00 from

Jonathan L. Bind, Esq. to Judge Johnson

written on behalf of Defts. NYC Transit

Authority and Manhattan and Bronx Surface

Transit Operating Authority written to raise

their concern that we might be prejudiced by

the failure of plaintiff's counsel either to serve

opposition papers by the date set by the Court.

(clp) [Entry date 09/01/00]

LETTER sent to docketing dated 8/23/00 from

Thomas F. Bello, Esq. to Judge Johnson written

on behalf of the Pitf. To request additional time

to respond to Deit.’s motion for Summary

Judgment. (cp) [Entry date 09/18/00]

ORDER denying piaintiff’s request to

supplement its opposition papers on deft.’s

motion for summary judgment. The Court will

accept no further submissions on the matter.

Signed by Judge Sterling Johnson Jr., on

10/17/00. (See letter dated 9/21/00 from

Thomas F. Bello, Esq. to Judge Johnson) (clp)

[Entry date 11/03/00]

68a

11/6/00 36 LETTER sent to docketing dated 9/25/00 from

Barbara M. Roth, Esq. to Judge Johnson written

on behalf of defts, in opposition to plaintiff's

request to supplement its opposition papers to

deft.’s summary judgment motion. (clp)

[Entry date 11/06/00]

11/9/00 37 Calendar entry: Case called on 11/9/00 for Pre

trial conference before Judge Johnson. Counsel

for the parties present. Further pretrial

conference set for 9:30 on 2/28/01 before Judge

Sterling Johnson Jr. (clp) [Entry date 11/27/00]

2/28/01 38 Calendar entry: Case called on 2/28/01 for Pre

trial Conf. Before Judge Johnson. Counsel for

the parties present. Conf. Held, Further pretrial

conference for 9:30 on 4/25/01 before Judge

Sterling Johnson, Jr. Court Reported/ESR M.

Brymer. (clp) [Entry date 03/13/01]

6/1/01 41 Calenaar entry: Case called on 6/1/01 for Pre-

trial conf. Before, Judge Johnson. Counsel for

the parties present. RULINGS: Decision to be

mailed out on Summary Judgment Motion. The

Court has set a further pretrial conference for

9:30 on 9/19/01 before Judge Sterling Johnson

Jr. (clp) [Entry date 06/18/01]

concludes plft. Has not raised any issues of

material fact sufficient to preclude a finding a

motion for summary judgment, pursuant to Fed.

R. Civ. P. 56, is granted. Signed by Judge

Sterling Johnson, Jr., on 5/31/01. c/m by

6/13/01 40

6/13/01 —-

7/20/01 42

7/20/01 44

8/7/01 43

9/17/01 —

69a

chambers. Forwarded to Pro-Se for Judgment.

(clp) [Entry date 06/08/01]

JUDGMENT for Manhattan and Bronx, New

York City Transit against Gladstone Ford.

Defendants’ motion for summary judgment is

granted. Plaintiff shall take nothing of the

defendant. (Signed by Clerk of Court on

6/11/01 c/m by docketing. (ar) [Entry date

06/13/01]

Case closed as per doc. #40. (ar) [Entry date

06/13/01]

MOTION by Gladstone Ford to extend time to

appeal. Forwarded to chambers. (jag) [Entry

date 08/06/01

NOTICE OF APPEAL by Gladstone Ford [40-

1] judgment order. Pitff., notified by mail to

remit fee or complete request to waive filing

fee. (lizv) [Entry date 09/17/01]

Notice of change of address, dtd. 8/1/01, from

Ralph Vega Jr., to Pro Se Docket Clerk, that

Pitff Gladstone Ford should be included in the

docket sheet, even though he is registered as

having counsel in this case. Docket sheet

updated. (mrl) [Entry date 08/07/01

Endorsed order granting [42-1] motion to

extend time to appeal (signed by Judge Sterling

Johnson Jr., on 8/19/01) (lizv) [Entry date

09/17/01]

as sini

70a

9/18/01 -— Certified and transmitted record on appeal to

U.S. Court of Appeals: [44-1] appeal. Record

consists of doc# 1-43. Missing doc# 37, 43.

Acknowledgment requested. (lizv) [entry date

09/18/01]

9/21/01 45 LETTER dated 9/5/01 from Jonathan L. Bing to

Judge Johnson, confirming that the parties do

not need to appear for their previously

scheduled 9/19/01 Status conf. (Ir) [Entry date

09/21/01]

9/26/01 — | USCA appeal fees received: [44-1] appeal fee

paid $105.00 Receipt # 250123. Copy fwded to

USCA. (lizv) [Entry date 09/26/01]

Docket as of October 2, 2001 4:04 pm

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.