# Petition for Writ of Certiorari — Ford v. New York City Transit Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1651%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 542 U.S. 938 ## Text No. 031525 MAR 1 - 2004 Inthe ve Or THE CLERK Supreme Court of the Anited States —_ —<>-: .. 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 UJ : ‘ P 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 1X 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 l 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. ——— 2 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 (c) The U.S. Supreme Court has ancillary jurisdiction to 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 3 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 4 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). 5 §. 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 6 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 7 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, a 8 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. 9 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 ew 10 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. 1] 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, —_— 12 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 13 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). 14 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 15 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 16 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’ ———— 17 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 . = 7 =i 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 | g a : : : 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 ieee Foire ; 4 4 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, V. 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 oT 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 X 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 X 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. X 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. C) 45a CASE DISCONTINUED WITHOUT PREJUDICE AND WITHOUT COSTS. ALL DISCOVERY TO BE COMPLETED BY 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 ORDER TO BE SUBMITTED BY__ The Court © 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 Vv 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 V. 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 V. 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] 6/8/01 39 © ©MEMORANDUM and ORDER: The Court 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1651%3A1. Public record. Not legal advice.