Angulo Capital Corp. Et Al v. Skadden, Arps, Slate, Meagher & Flom, LLP - Document No. 8
Angulo Capital Corp. Et Al v. Skadden, Arps, Slate, Meagher & Flom, LLP - Document No. 8
Angulo Capital Corp. Et Al v. Skadden, Arps, Slate, Meagher & Flom, LLP - Document No. 8
8
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 1 of 22
MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
Dockets.Justia.com
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 2 of 22
TABLE OF CONTENTS
Page
i
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 3 of 22
TABLE OF AUTHORITIES
CASES
Alpert’s Newspaper Delivery, Inc. v. The New York Times Co., 876 F.2d 266
(2d Cir. 1989).....................................................................................................................14
Cresswell v. Sullivan & Cromwell, 922 F.2d 60 (2d Cir. 1990) .....................................................8
Daniels v. Lebit, 299 A.D.2d 310, 749 N.Y.S.2d 149 (2d Dep’t 2002) ........................................15
Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126 (2d
Cir. 1976).............................................................................................................................4
Grupo DataFlux v. Atlas Global, L.P., _ U.S. _, 124 S. Ct. 1920 (2004) .......................................8
Herrick Co. v. SCS Communications, Inc., 251 F.3d 315 (2d Cir. 2001) ...................................1, 9
Herrick Co. v. Vetta Sports, Inc., No. 94 Civ. 0905, 2002 WL 362760 (S.D.N.Y.
Mar. 5, 2002), aff’d in part, rev’d in part on other grounds, 360 F.3d 329
(2d Cir. 2004).......................................................................................................................9
Kahn v. Hart, 270 A.D.2d 231, 704 N.Y.S.2d 126 (2d Dep’t 2000) .............................................16
Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487 (1941).....................................13
Meadowcroft Associates, Inc. v. Davis Polk & Wardwell, No. 01 Civ. 8377,
2001 WL 1112693 (S.D.N.Y. Sept. 21, 2001) ....................................................................9
ii
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 4 of 22
Monahan v. New York City Department of Corrections, 214 F.3d 275 (2d Cir.
2000) ............................................................................................................................10, 14
Palazzo ex rel. Delmage v. Corio, 232 F.3d 38 (2d Cir. 2000) .......................................................9
Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir. 1972) ...............................................17
Skadden, Arps, Slate, Meagher & Flom LLP v. Gerard Angulo, Civ. No. 02-
9322 (RMB) .....................................................................................................................1, 3
Yoon v. Fordham Univ. Faculty and Admin. Ret. Plan, 263 F.3rd 196 (2nd Cir. 2001)…………13
STATUTES
iii
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 5 of 22
respectfully submits this memorandum of law in support of its motion to dismiss the
complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure.
PRELIMINARY STATEMENT
After a New York state court entered a judgment against him for $1.2
million for unpaid legal fees due to Skadden, Gerard Angulo (“Angulo”) now seeks to
replead his failed defenses and counter-claims and other time-barred claims in federal
court despite a clear absence in this Court of subject matter jurisdiction over the parties.
As set forth in the complaint herein, the parties were previously before
this Court in Skadden, Arps v. Angulo, Case No. 02 CV 9322 (RMB) (the “Prior
Federal Action”), in which Skadden sought payment from Angulo for outstanding legal
fees. Jurisdiction in that action was initially premised upon diversity pursuant to 28
U.S.C. 1332(a)(1). After filing its complaint, Skadden realized that there was a
jurisdictional deficiency, and wrote to advise the Court that, based on the controlling
decision in Herrick Co. v. SCS Communications, Inc., 251 F.3d 315 (2d Cir. 2001),
diversity jurisdiction was lacking. Accordingly, on March 10, 2003, this Court entered
a Stipulation and Order on consent dismissing the Prior Federal Action without
prejudice.
Skadden promptly re- filed its action in New York State Court (the “State
Court Action”) and, on December 4, 2003, the New York State Supreme Court (Hon.
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 6 of 22
Shirley Werner Kornreich, J.S.C.) (the “State Court”) entered summary judgment in
Skadden’s favor in the amount of $1,238,890.31. In a written decision, the State Court
specifically considered, and rejected, Angulo’s claim (virtually ident ical to that made in
the instant action) that Skadden engaged in fraudulent billing practices, including the
alleged failure to perform work for which it billed. Angulo’s appeal of the decision
remains pending.
In this action, Angulo, and Angulo Capital Corp. (“ACC”), his wholly
owned company, seek to re- litigate the identical matters already adjudicated in the State
Court Action along with a baseless claim for fraud upon the court. Plaintiffs’ present
action, over which this court lacks subject matter jurisdiction and which contains claims
that are barred by res judicata, time-barred or which fail to state a claim upon which
STATEMENT OF FACTS 1
Plaintiffs Angulo and ACC in connection with a lawsuit brought against them in the
Southern District of New York, on appeal of a judgment rendered in their favor to the
including the distribution of the assets of the partnership that was the subject of the
1
Many of the facts contained herein are taken from the decision, order and judgment in the State
Court Action (“Order and Judgment”) which is attached to the Krause Attorney Statement at
exhibit A.)
2
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 7 of 22
Litigation. (Order and Judgment pp. 1-3) During the course of the representation,
Skadden sent Angulo 29 itemized statements of his legal fe es. (Order and Judgment pp.
3-4) Angulo made some payments on his account, totaling approximately $1 million,
but after the verdict in his favor was upheld by the Second Circuit, his payments fell off
most of which were subsequently dishonored, and also wrote a number of letters
apologizing for stopping the checks and for his failure to pay, and promising to pay the
outstanding balance of his account in the future. (Order and Judgment pp. 4-5) By the
middle of 2001, Angulo had stopped returning Skadden’s phone calls and did not
respond to the follow up letters sent to him by Skadden requesting payment on his
On November 21, 2002 Skadden filed suit against Angulo in this Court
in an action captioned Skadden, Arps, Slate, Meagher & Flom LLP v. Gerard Angulo,
Civ. No. 02-9322 (RMB). In February of 2003, Skadden recognized that there was a
citizenship between the parties. The lack of diversity arises from the fact that Skadden
is a Delaware limited liability partnership with offices in ten U.S. cities and twelve
3
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 8 of 22
foreign cities, and has a number of partners who are U.S. citizens and are domiciled
Aff.”) ¶2.) Mr. Baker, who was born in Lake Forest, Illinois on February 14, 1958, has
lived and worked in Paris continually from 1986 through the present. (Baker Aff. ¶2.)
Since 1998 he has owned a residence on Avenue Georges Mandel in Paris where he
currently lives with his wife and minor children. (Baker Aff. ¶ 3.) Mr. Baker owns no
real property in the United States. (Baker Aff. ¶3.) During at least the past ten years
Mr. Baker has not voted in any State or local election in the United States nor was he
registered to do so. (Baker Aff. ¶3.) Since becoming a Skadden partner in 1988, Mr.
Baker has not filed resident tax returns in any U.S. state; during those years he filed
non-resident tax retur ns in the states in which Skadden has offices. (Baker Aff. ¶ 2.)
Since 1994, Mr. Baker has held only a French driver’s license. (Baker Aff. ¶3.)
office since January 11, 1988, is a U.S. citizen, born in New York City, who is
domiciled in London. (Affidavit of Bruce M. Buck (“Buck Aff.”) ¶2-3.) Mr. Buck has
resided in London continually and without interruption since July of 1983, and
2
When considering a motion to dismiss for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), a district court need not confine its evaluation to the pleadings and
may consider affidavits and other evidence submitted by the parties. Land v. Dollar, 333 U.S.
731, 735 n.4 (1947); Exchange Nat’l Bank of Chicago v. Touche Ross & Co., 5441 F.2d 1126,
1130-31 (2d Cir. 1976).
4
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 9 of 22
continues to do so. (Buck Aff. ¶ 2.) Since 1988 through the present, Mr. Buck’s
primary residence has been a home he owns in Chelsea Square, London, where he lives
with his wife and children. (Buck Aff. ¶4.) Mr. Buck has not voted in any State or
local election in the United States nor was he registered to do so during the past twenty
years. (Buck Aff. ¶ 4.) Since becoming a Skadden partner in 1988, Mr. Buck has not
filed resident tax returns in any U.S. state; during those years he has filed non-resident
tax returns in the states in which Skadden has offices. (Buck Aff. ¶3.) Mr. Buck owns
fourteen days per year. (Buck Aff. ¶ 4.) Mr. Buck intends to remain in England
could not be a party for diversity purposes and wrote to the Court to point out this
defect. The letter (a copy of which is attached to the attorney’s statement of Stuart A.
Krause (“Krause Attorney Statement”) as exhibit B) stated that based on Herrick, when
a partnership such as Skadden’s which has numerous offices outside of the United
States, has partners that are U.S. citizens domiciled abroad, diversity jurisdiction is
absent. Thereafter Counsel for Angulo wrote to this Court stating that he had reviewed
the Herrick decision, agreed with Skadden’s interpretation thereof and would therefore
agree to dismissal of the case and its re- filing in State court. (A copy of this letter is
attached to the Krause Attorney Statement at exhibit C.) On March 10, 2003, by
stipulation of the parties, Judge Berman dismissed the action and gave Skadden six
5
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 10 of 22
months to re-file in state court. (A copy of this stipulation and order is attached to the
On March 14, 2003 Skadden filed an action against Angulo in New York
State Court claiming breach of contract, account stated and dishonored checks (the
“State Court Action”). (A copy of the complaint is attached to the Krause Attorney
Skadden’s bills were based on “inflated time records.” Angulo also interposed a
counterclaim claiming that he had overpaid his fees because of “false bills and inflated
time records” and claiming a return of a portion of Skadden’s fees which he had already
paid. (A copy of the answer and counterclaim in the State Court Action (“Answer and
stated and dishonored check claims and for dismissal of the counterclaim. (Order and
Judgment at 1.) Angulo cross moved for dismissal of the breach of contract and
Skadden Arps’ Motion and in Support of his Cross Motion for Summary Judgment
(“Angulo Aff.”) and the June 25, 2003 affidavit of Angulo’s counsel, Eric W. Berry
(“Berry Aff.”) (without exhibits) are attached to the Krause Attorney Statement as
exhibits G and H.) In this affidavit Angulo accused Skadden of “Wild over-billing and
6
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 11 of 22
counsel also raised the issue of the allegedly fraudulent dismissal of the Prior Federal
Action. (Berry Aff. ¶¶ 2-3.) On August 14, 2003, the State Court granted summary
counterclaim. (Order and Judgment p.p. 14-15.) Judgment for $1,238,890.31 was
entered against Angulo on December 3, 2003. Angulo timely filed a notice of appeal.
Kornreich and for reargument. In his motion, Angulo claimed specifically that Skadden
had done no work for Angulo in the Litigation after the affirmance by the Second
Circuit of the District Court’s judgment in that action, and that Angulo therefore owed
no fees for any such fraudulently claimed work. (A copy of the Affirmation of Eric W.
Berry (“Berry Aff. II”) in support of this motion is attached to the Krause Attorney
On March 25, 2004, the State Court held oral argument on the motion for
recusal and reargument. Angulo’s counsel again raised the issue of the allegedly
denied Angulo’s motion for recusal and reargument, stating that she had already
considered these arguments. (A copy of the transcript of this argument including Justice
exhibit J.)
7
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 12 of 22
ARGUMENT
“It has long been the case that ‘the jurisdiction of the Court depends
upon the state of things at the time of the action brought.’ This time of filing rule is
hornbook law. . . .” Grupo Dataflux v. Atlas Global Group, L.P., __ U.S. __, 124 S.Ct.
1920, 1924 (2004); Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998) (“the
the citizenship of the parties at the time the action is commenced. . . .’”). Plaintiffs
premise jurisdiction in this case on diversity between the parties. (Complaint ¶ 5.) To
the extent pertinent here, the federal diversity statute gives the district courts
jurisdiction over cases between (1) “citizens of different states” and (2) “citizens or
that “United States citizens who are domiciled abroad are neither citizens of any state of
the United States nor citizens or subjects of a foreign state, and § 1332(a) does not
provide that the courts have jurisdiction over a suit to which such persons are parties.”
Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir. 1990). As a partnership
takes on the citizenship of each of its partners, it is black letter law in this Circuit that
subject matter jurisdiction in a suit against a partnership that includes partners who are
8
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 13 of 22
U.S. citizens domiciled abroad cannot be premised on diversity. Id. at 69; accord
Meadowcroft Assocs., Inc. v. Davis Polk & Wardwell, No. 01 Civ. 8377, 2001 WL
ruling in a case in which Skadden was a party. See Herrick Co. v. SCS
Communications, 251 F.3d 315 (2d Cir. 2001). In Herrick the Court noted that the
evidence in the record indicated that Skadden had partners who were U.S. citizens
domiciled abroad, and that if this were the case, Skadden could not be a party for the
interrogatories left no doubt that dating from 1994, when the Herrick action was filed,
there were Skadden partners who were domiciled abroad. In its decision on remand, the
Herrick Co. v. Vetta Sports, Inc., No. 94 Civ. 0905, 2002 WL 362760, at *5 (S.D.N.Y.
Mar. 5, 2002), aff’d in part, rev’d in part on other grounds, 360 F.3d 329 (2d Cir. 2004).
“Domicile is ‘the place where a person has his true fixed home and
returning.’” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (citations
omitted). It is incontrovertible that at all relevant times, there were and are at least two
9
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 14 of 22
Skadden partners, Christopher L. Baker and Bruce M. Buck, who are U.S. citizens
domiciled abroad, in that they live, work and intend to remain indefinitely in France and
Bruce M Buck ¶¶ 2-5.) On that basis Skadden may not be a party for the purpose of
diversity jurisdiction and this action must be dismissed because this Court has no
judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.” Allen v.
McCurry, 449 U.S. 90, 94 (1980); Monahan v. N.Y. City Dep’t of Corrections, 214
F.3d 275, 284-85 (2d Cir. 2000). “‘Whether or not the first judgment will have
transactions is at issue, whether the same evidence is needed to support both claims, and
whether the facts essential to the second were present in the first.’” Id. at 285 (citations
omitted). “To prove the affirmative defense a party must show that (1) the previous
action involved an adjudication on the merits; (2) the previous action involved the
3
Angulo’s contention to the contrary is apparently based on his claim that Skadden’s filing of an
action predicated on diversity on October 25, 2002 in the District of Delaware against Learning
2000, Inc. somehow belies these facts. This is absurd. First, the Delaware Court is in the Third
Circuit and is not bound by the rulings in the Herrick case. As Skadden informed Judge Berman,
Skadden believes Herrick was mistakenly decided as a matter of law and reserves the right to
contest the issue els ewhere. At no time in the Learning 2000 action did Skadden assert that it
does not have partners who are U.S. citizens domiciled abroad. Second, no positions taken by
Skadden in Delaware could conceivably manufacture diversity jurisdiction within the Second
Circuit, which is lacking based upon the uncontestable facts, and controlling caselaw.
10
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 15 of 22
plaintiffs or those in privity with them; (3) the claims asserted in the subsequent action
fraud upon the court. The first two claims are based on an allegation that Skadden
agreed to, but did not, perform services with regard to the judicial dissolution of First
Capital Partners, but billed Angulo for those services. The third claim of fraud upon the
court is based on an allegation that, in order to escape discovery, Skadden misled this
Court with regard to the domicile of its partners (and thus the availability of diversity
However, all of the alleged “facts” on which these claims were based
were actually raised in the State Court Action by Angulo, both defensively and as a
which it did not perform with regard to the dissolution of First Capital Partners
(Complaint ¶¶ 39-41, 44-48) were raised by Angulo in the State Court Action, both in
the Answer and Counterclaim and in the Affidavit of Gerard Angulo in Opposition to
Skadden, Arps Motion and in support of his Cross Motion in that case. (See Answer
and Counterclaim ¶¶ 14-16; Angulo Aff. ¶¶ 9-10, 57-73.) The claim of “fraud on the
court” (Complaint 50-58) was also specifically raised by Angulo’s counsel at that time.
11
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 16 of 22
billing/failure to dissolve the First Capital Partners claims in its Order and Judgment,
noting that “Angulo questions, inter alia, the time allegedly spent by Skadden attorneys
and paralegals on his case in the year and a half following the Second Circuit’s May 20,
1998 decision on the appeal. . . . .Angulo’s current attorney has ascertained that . . . . as
of June 2003 the New York Partnership had still not been dissolved.” (Order and
Judgment at 8-9). However, “the Court [did] not find that any of the foregoing state[d]
a defense of ‘fraud’” (Order and Judgment at 9) and held that “Angulo may not set aside
his contract with Skadden on the ground of ‘fraud in the inducement through fraudulent
misrepresentations. . . . ‘ “ (Order and Judgment at 10.) Noting, inter alia, that “the
disingenuous [because] Angulo did not challenge these charges until Skadden
commenced the instant action in March 2003,” the State Court ruled that “Angulo has
not made out a defense of fraud.” (Order and Judgment at 10.) The State Court also
ruled on and dismissed Angulo’s counterclaim stating that “defendant has not made out
his claim of ‘fraud’ nor has he established his defenses of ‘mistake’ or ‘inequity.’”
In his motion for recusal and reargument in the State Court Action
Angulo again raised the issue of Skadden’s allegedly fraudulent billings and failure to
obtain judicial dissolution of First Capital Partners. (Berry Aff. II ¶¶ 18-42.)4 Angulo’s
4
Interestingly, Angulo also claimed in this affidavit that following the decision on the appeal in
the Litigation “there was nothing to do with regard to the dis solution of First Capital Partners,
and Angulo authorized no work. . . .” Berry Aff. II ¶ 25.
12
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 17 of 22
counsel also raised the issue at oral argument on the motion. (Transcript at 6-8.) The
State Court denied the motion stating that it had considered all of these arguments.
(Transcript at 6, 9.)
such, they certainly could have been raised in the State Court Action. There is a “well
established rule that a plaintiff cannot avoid the effects of res judicata by “splitting” his
claims into various suits based on different legal theories. . . .” Waldman v. Kiryas Joel,
207 F. 3rd 105, 110 (2nd Cir. 2000). Under New York’s 5 “transactional approach” to
determining whether claims are part of the same cause of action for res judicata
purposes, “once a claim is brought to a final conclusion, all other claims arising out of
the same transaction or series of transactions are barred, even if based on different
theories or seeking a different remedy.” Yoon v. Fordham Univ. Faculty and admin.
Ret. Plan, 263 F.3rd 196, 200 (2nd Cir. 2001)(citations omitted). Angulo’s claims
certainly arise out of the same transaction on which the State Court Action was based –
gone to judgment, Angulo may not split his claims by asserting them in the instant case.
5
In a diversity action, a federal court must apply the choice of law rules of the state in which the
court sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under New York’s
choice of law rules, New York law governs this action because Skadden’s New York office
handled the Litigation, which was filed in New York, and virtually all of Skadden’s actions in
connection with the Litigation took place in New York. See Machleder v. Diaz, 801 F.2d 46, 51
(2d Cir. 1986) (under New York law, court must apply substantive tort law of state that has the
most significant relationship with the occurrence and with the parties).
13
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 18 of 22
Finally, ACC is bound by any judgment against Angulo. This Court has
held that “a party will be bound by the previous judgment if his ‘interests were
Monahan at 286, citing Alpert’s Newspaper Delivery, Inc. v. The New York Times Co.,
876 F.2d 266, 270 (2nd Cir. 1989). It is incontrovertible that Angulo is vested with the
authority to represent his wholly-owned corporation, ACC, as its sole sha reholder.
(Complaint ¶ 6.)
adjudication on the merits; (2) plaintiff Angulo was a party to the State Court Action
and that plaintiff ACC, Angulo’s wholly owned corporation, is bound by the judgment
against Angulo; and (3) the claims asserted in this action were raised or should have
been raised in the State Court Action because they arose out of the same transaction and
are predicated on the same facts. Monahan, 214 F.3d at 285; Yoon, 263 F.3d at 200.
Therefore, plaintiffs’ claims in this action are barred by the doctrine of res judicata and
14
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 19 of 22
....
governing professional malpractice shall be three years, regardless of whether the claim
claim by the client that the professional breached a fiduciary duty is governed by this
section as well, so long as it seeks the same damages and is based on the same conduct
claim. Daniels v. Lebit, 299 A.D.2d 310, 749 N.Y.S.2d 149 (2d Dep’t 2002):
6
It is also worth noting that so long as a claim for breach of fiduciary duty seeks monetary
damages, the limitations period for such a claim is in any event three years. Svenska Finans
15
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 20 of 22
As the New York Court of Appeals held, a cause of action for legal
malpractice accrues for limitations purposes at the time the attorney commits the error
in question, not when the plaintiff feels the resulting injury or the claim is discovered.
Glamm v. Allen, 57 N.Y.2d 87, 453 N.Y.S.2d 674 (1982); see also Adamson v.
Bachner, No. 01 Civ. 10213, 2002 WL 31453096 (S.D.N.Y. Oct. 31, 2002); Kahn v.
Hart, 270 A.D.2d 231, 704 N.Y.S.2d 126 (2d Dep’t 2000). Assuming for the purpose of
this motion only, that the allegations in the complaint are true, any claim for malpractice
would have accrued at the latest in October 1999 when Angulo received Skadden’s last
bill for itemized services, and any claim in regard to such malpractice could therefore
have been filed no later than October of 2002. Plaintiffs’ claims are indisputably time-
Plaintiffs have failed to state a claim for “fraud upon the court.” First, no
damages are available for fraud upon the court, which is a purely equitable claim for
relief from a judgment. Fed. R. Civ. P. 60(b)(3); 7 Gleason v. Jandrucko, 860 F.2d 556,
Int’l, BV v. Scolaro, Shulman, Cohen, Lawler & Burnstein, P.C., 37 F. Supp. 2d 178 (N.D.N.Y.
1999).
7
Rule 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, order, or proceeding for the
following reasons . . . (3) fraud . . ., misrepresentation, or other conduct of an
adverse party . . . . The motion shall be made within a reasonable time and for
reasons (1), (2) and (3) not more that one year after the judgment, order, or
proceeding was entered or taken . . . . This rule does not limit the power of a
court to entertain an independent action to relieve a party from a judgment,
order or proceeding, or . . . to set aside a judgment for fraud upon the court.
16
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 21 of 22
558 (2d Cir. 1988). Second, even assuming that Plaintiffs’ allegations that Skadden’s
counsel misrepresented to the court that Skadden had partners who were U.S. citizens
consented to the dismissal. (See Stipulation and Order attached to Krause Attorney
Statement., Exh. D.) Angulo was not required to consent to the dismissal, and had
of its partners. Therefore, having consented to the dismissal and waived the opportunity
to challenge Skadden’s representations, Angulo may not seek relief from this Court’s
Stipulation and Order dismissing the Prior Federal Action. See Gleason, 860 F.2d at
560 (“[A]n aggrieved party seeking relief under the saving clause of Rule 60(b) still
must be able to show that there was no ‘opportunity to have the ground now relied upon
to set aside the judgment fully litigated in the original action.’”) (quoting Serzysko v.
Chase Manhattan Bank, 461 F.2d 699, 702 n.2 (2d Cir. 1972) (per curiam)). Therefore
Plaintiffs are not entitled to relief because they “had ample opportunity in the prior
Fed. R. Civ. P. 60(b). It should be noted that Angulo’s counsel first raised the issue of his
alleged “suspicions” about the veracity of Skadden’s claims regarding diversity in an affidavit
filed in the State Court Action dated June 23, 2003 in opposition to Skadden’s motion for
summary judgment. (See Berry Aff. ¶ 2.) However, Angulo did not at that time choose to file
what would have been a timely motion in this Court to vacate the dismissal of the Prior Federal
Action, but instead waited until after the State Court granted summary judgment to Skadden and
denied his subsequent motion for recusal and reargument.
17
Case 1:04-cv-03114-KMW Document 8 Filed 06/15/2004 Page 22 of 22
CONCLUSION
For all of the foregoing reasons, this Court should grant defendant’s
440746.01/3229-001/BG
18