Cite as: Zaratzian v. Abadir, 10 CV 9049, NYLJ 1202557099949, at *1 (SDNY, Decided May 30, 2012)

District Judge Vincent L. Briccetti

Decided: May 30, 2012

MEMORANDUM DECISION

 

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Plaintiff brought this action against defendants Adel Ramsey Abadir and Larry M. Carlin asserting violations of 18 U.S.C. §2520 (the "Wiretap Act"), 18 U.S.C. §2707 (the "Stored Communications Act"), and 42 U.S.C. §1985(3) (conspiracy to interfere with civil rights), as well as various state law claims. On May 3, 2011, the Court granted defendant Carlin's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6),1 and subsequently entered final judgment dismissing all claims against Carlin pursuant to Fed. R. Civ. P.54(b).

Now pending is plaintiff's motion for an indicative ruling pursuant to Fed. R. Civ. P. 62.1 seeking relief from judgment under Fed. R. Civ. P. 60(b). (Doc. #49).

Also pending, pursuant to Fed. R. Civ. P. 72(a), are (1) plaintiff's objection to Magistrate Judge Paul E. Davison's order dated February 15, 2012, denying plaintiff's request to extend the discovery deadline in order to take the depositions of Carlin and one other witness (Doc. #53), and (2) defendant Abadir's objection to Judge Davison's order dated April 9, 2012, denying

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Abadir's request to re-open discovery in order to take the deposition of plaintiff's attorney, Harold R. Burke, Esq.

 

For the reasons set forth below, plaintiff's motion for an indicative ruling is GRANTED, and plaintiff's and defendant's objections to Judge Davison's discovery orders are OVERRULED.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1331, and supplemental jurisdiction over the related state law claims pursuant to 28 U.S.C. §1367.

BACKGROUND

I. Facts

For purposes of ruling on this motion, the Court derives the following facts from the allegations set forth in the complaint, the affirmation of plaintiff's counsel, and the exhibits attached to plaintiff's motion papers.

On August 30, 2001, while married to plaintiff Annabelle Zaratzian, defendant Adel Ramsey Abadir contracted with Cablevision for the installation of Internet service. The Internet service was installed for the mutual use of plaintiff and Abadir. Following installation, Abadir configured Optimum Online email accounts for himself (rabadir@optonline.net) and for plaintiff (azaratzian@optonline.net). Plaintiff and Abadir separated in September 2005, and, following contentious matrimonial litigation, finalized their divorce on December 19, 2006. Thereafter, the parties continued to use their respective email addresses. Plaintiff changed the password to her email account after her separation from Abadir and considered her emails to be private and their contents confidential

On June 4, 2009, plaintiff contacted Cablevision regarding her Optimum Online account. Plaintiff learned her ex-husband Abadir's email account was still active despite the fact that she had assumed full financial responsibility for the account following their separation in 2005. In

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response, she instructed Cablevision to deactivate Abadir's email account. Thereafter, plaintiff began receiving error messages, which ultimately revealed that her incoming email messages were being forwarded to Abadir's email address.

 

On June 27, 2010, plaintiff again contacted Cablevision and was informed the "auto-forward" feature on her account was enabled. As a result, all of her incoming emails were simultaneously being forwarded to the designated email account rabadir@optonline.net, the email address of her ex-husband. According to the complaint, Abadir enabled this feature when he created plaintiff's account, and did not inform plaintiff that he continued to receive her emails following their separation and divorce. Abadir continued to receive plaintiff's emails until June 4, 2009, when plaintiff deactivated Abadir's email address. Certain of these emails consisted of private communications between plaintiff and various third-parties, including her attorney and accountant.

Plaintiff alleges Abadir provided his divorce attorney, defendant Larry M. Carlin, with certain emails, which Abadir obtained from plaintiff's email account via the auto-forward feature. The complaint asserts that on October 12, 2010, during a proceeding before Judge Sandra Edlitz of the Westchester County Family Court, Carlin proclaimed that plaintiff earned $400,000 per year. Plaintiff alleges Carlin's declaration as to her income resulted from information Abadir intercepted from plaintiff's email account. Specifically, plaintiff alleges Abadir obtained a June 3, 2009, email sent to plaintiff from her accountant, to which her 2008 income tax return was attached. Plaintiff states the last time she provided Abadir with any of her financial information was when they finalized their divorce in December 2006.

Plaintiff alleges that Carlin knew or had reason to know that Abadir obtained this information, without plaintiff's authorization, by surreptitiously intercepting plaintiff's emails,

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and thus his disclosure of plaintiff's income to the Family Court constituted a conspiracy to violate the Wiretap Act and the Stored Communications Act, and also gave rise to the related state law claims.

 

II. Procedural History

After plaintiff filed her complaint, Abadir and Carlin moved to dismiss pursuant to Rule 12(b)(6). (Docs. #11, 14). On May 3, 2011, the Honorable J. Frederick Motz (U.S.D.J., D. Md.), sitting by designation, denied Abadir's motion, but granted Carlin's motion stating, "[p]laintiff has not made any allegations that make the claims plausible [as to Carlin]."

Plaintiff timely appealed this decision to the Court of Appeals for the Second Circuit, which granted plaintiff's motion to stay the appeal because final judgment had not yet been entered. This Court granted plaintiff's motion for judgment pursuant to Rule 54(b), and the Court of Appeals lifted the stay.

III. Newly Discovered Evidence

While awaiting a decision from the Court of Appeals as to Judge Motz's order dismissing defendant Carlin, plaintiff's counsel began discovery as to the claims asserted against Abadir. On January 19, 2012, plaintiff's counsel received a copy of an email dated May 19, 2010, from Abadir to Carlin with the subject line "Anabelle 2008 RETURN & AUTHORIZATION FORM." The body of the email read: "Enclosed are materials that may be useful. Ramsey." Attached to the email were several documents, all of which were prepared on June 3, 2009: (1) plaintiff's 2008 federal and New York State income tax returns, unsigned, but indicating they had been prepared by plaintiff's accountant; (2) plaintiff's unsigned 2008 IRS and New York State e-file signature authorization forms, also indicating they had been prepared by plaintiff's accountant; (3) a cover letter from the accountant to plaintiff enclosing her returns and related documents; (4)

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filing instructions from the accountant, including instructions on how to complete the e-file authorizations and return them to the accountant; (5) a two-year comparison worksheet prepared by the accountant, covering 2007 and 2008; (6) an invoice to plaintiff from the accountant for professional services rendered in preparing the 2008 returns; and (7) a "privacy policy" document prepared by the accountant stating he would not disclose his clients' personal information to outsiders.

 

Following plaintiff's counsel's receipt of this email (and attachments), plaintiff moved before this Court for an "indicative ruling" pursuant to Rule 62.1 requesting relief from judgment under Rule 60(b), and reinstating Carlin as a defendant.

DISCUSSION

I. Rule 62.1

A court lacks jurisdiction to alter a judgment pursuant to Rule 60(b) when an appeal is pending as to the judgment. See Molchatsky v. United States, 2012 WL 209122, at * 3, n.1 (S.D.N.Y. Jan. 24, 2012) (citing Toliver v. Cnty. of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992)). However, the Federal Rules of Civil Procedure recognize that in certain circumstances it may be helpful to the parties and to the Court of Appeals to know what the District Court might do if given the chance to reconsider some aspect of the appealed case. Rule 62.1 allows for such indicative rulings.

Rule 62.1 provides that "[i]f a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue." Even if the court states that the motion raises a substantial issue it is not bound to grant the motion on remand. See Advisory Comm. Note on Fed. R. Civ. P. 62.1.

 

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Therefore, the Court considers the question of whether if it had jurisdiction over this matter, would plaintiff's newly discovered evidence warrant relief under Rule 60(b) from Judge Motz's order dismissing the claims against defendant Carlin.

 

II. Rule 60(b)

Plaintiff moves pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from judgment. Rule 60(b) provides a mechanism for extraordinary judicial relief, which is available only if the moving party demonstrates exceptional circumstances. In re Petition of Insurance Co. of North America v. Public Service Mut. Ins. Co., 2009 WL 2381854, at *3 (S.D.N.Y. July 29, 2009) (citing Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009)). As such, "[t]he party seeking relief from judgment has an onerous standard to meet." United States v. Int'l. Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001).

To obtain relief from judgment on the basis of newly discovered evidence pursuant to Rule 60(b)(2), the movant must demonstrate: "(1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching." Molchatsky v. United States, 2012 WL 209122, at * 3) (quoting Frankel v. ICD Holdings S.A., 939 F. Supp. 1124, 1127 (S.D.N.Y. 1996)).2

Here, plaintiff has satisfied each of the elements necessary to obtain relief under Rule 60(b)(2). First, the newly discovered evidence — namely, the email from Abadir to Carlin, dated

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May 19, 2010, to which plaintiff's 2008 income tax returns, e-file authorization forms, and related documents were attached — existed at the time Judge Motz dismissed the case against Carlin.

 

Second, plaintiff's counsel states he first received the copy of the email on January 19, 2012, in response to plaintiff's request for production in this case. Therefore, it was only with the benefit of discovery that this evidence came to light, and it could not have been found by due diligence otherwise. See United States v. Potamkin, 697 F.2d 491, 493 (2d Cir. 1983).

Third, when plaintiff's counsel filed the complaint he was not in possession of this email, and thus could not have alleged the existence of the email in the complaint, or attached the email to the complaint. The Court believes that had Judge Motz been provided with this email (and its attachments), his decision would probably have been different. See DiFolco v. MSNBC Cable L.L.C.,622 F.3d 104, 111 (2d Cir. 2010) ("[I]n considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.").

This is because the Abadir/Carlin email, and its attachments, makes plausible the allegation that in the Family Court proceedings attorney Carlin used information provided to him by Abadir knowing, or having reason to know, that the information had been illegally obtained by Abadir from plaintiff's email. The attachments in particular — plaintiff's 2008 tax returns, e-file signature authorization, and related documents, all of which were prepared by plaintiff's accountant — plausibly put Carlin on notice that Abadir had obtained his ex-wife's confidential information by accessing and/or intercepting, without authorization, her email communications.

 

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Plaintiff and Abadir finalized their contentious divorce more than three years prior to Carlin's receipt of the May 19, 2010, email. At the time Carlin received the May 19 email, plaintiff and Abadir were embroiled in a child custody dispute in which Carlin represented Abadir. To say the least, it is highly unlikely Carlin would have thought plaintiff would voluntarily have disclosed her 2008 tax returns to her ex-husband years after their divorce. Moreover, plaintiff's e-file authorizations, prepared by her accountant, were also attached to the email. These forms permit a taxpayer to authorize his or her tax preparer or accountant to e-file the taxpayer's return. There would be no reason for plaintiff to have given these forms to anyone other than her accountant, let alone her ex-husband years after their divorce. Thus, Carlin, an attorney, knew or had reason to know these documents were improperly obtained by Abadir through means other than voluntary disclosure by plaintiff.

 

The Court also believes the email and its attachments plausibly put Carlin on notice not only that Abadir had obtained the documents improperly but also that Abadir had done so by accessing or intercepting his ex-wife's private emails. The attachments included a cover letter from plaintiff's accountant, filing instructions from the accountant, a two-year comparison worksheet from the accountant, an invoice to plaintiff from the accountant, and even a "privacy policy" document prepared by the accountant. All of these documents give rise to the inescapable inference that the tax returns and related documents were all part of a single, direct email communication from the accountant to plaintiff. Although it is possible the accountant mailed, faxed, or hand-delivered the documents to plaintiff, if that were the case it is extraordinarily unlikely Abadir would ever have obtained them — because he would have had to obtain them directly from plaintiff or the accountant or stolen them from plaintiff's home or office or the accountant's office. Plaintiff has alleged in the complaint she never provided

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financial information to Abadir after their 2006 divorce, and the accountant's "privacy policy" document makes clear he would never have provided the documents to Abadir without plaintiff's authorization. And there is no suggestion that Abadir stole the documents from his ex-wife's home or office or the accountant's office.

 

Moreover, the attachments to Abadir's May 19 email do not appear to have been faxed. There are no fax headers or other indicia that these documents were faxed, and the image is clear and legible. Rather, the documents appear to be PDF digital files. It is commonplace for people to send such PDF documents to each other by attaching them to emails. Although it is not certain plaintiff's accountant sent plaintiff the documents by e-mail, it is certainly plausible, and even likely, that he did exactly that.

In short, although Abadir did not say in his email to Carlin that he obtained the documents by improperly accessing or intercepting plaintiff's accountant's email to plaintiff, the nature, completeness, and clarity of the package of documents, as well as the fact that Carlin had to know Abadir certainly did not obtain the documents directly from plaintiff or her accountant, makes plausible the allegation that Carlin knew or had reason to know Abadir had indeed obtained the documents by improperly accessing or intercepting an email to plaintiff.

Carlin contends that "plaintiff seeks to bring me back into this case based upon my receipt of an email that, on its face, is indistinguishable from the thousands of emails received by attorneys on a daily basis from clients who are involved in litigation." The Court could not disagree more. This email — with attachments that could only have been part of a highly confidential communication to Abadir's ex-wife from her accountant years after their divorce — was, in this Court's experience, extraordinarily unusual. Clients involved in litigation do, of course, communicate all sorts of information to their attorneys in the hope their attorneys will

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use the information to help their case, but attorneys have an obligation to — and ordinarily will — closely examine that information to make sure it is both helpful and legitimate. This email certainly put Carlin on notice that Abadir had some sort of improper access to the confidential communications of his ex-wife with whom he was then engaged in a child custody battle. The Court categorically rejects the notion that this email was "indistinguishable" from the routine sorts of communications attorneys receive from clients on a daily basis.

 

Finally, as to the fourth Rule 60(b)(2) factor, the Court finds, for the reasons set forth above, that the newly discovered evidence is not merely cumulative or impeaching.

All of plaintiff's claims against Carlin hinge on the allegation that he knew or had reason to know Abadir illegally accessed or intercepted plaintiff's email communications, and the Court finds this allegation is plausible in light of the newly discovered evidence. Therefore, in accordance with Rule 62.1(a), the Court states it would grant plaintiff's motion under Rule 60(b)(2) to re-open the case against Carlin if the Court of Appeals were to remand for that purpose.

It should be noted that while the Court believes the newly discovered evidence makes plaintiff's allegations against Carlin plausible, the Court makes no finding one way or the other as to whether plaintiff will ultimately prevail on her claims. Plaintiff's claims against Carlin, like her claims against Abadir, may or may not be meritorious, but if the case is re-opened as to Carlin, a decision on the merits should be deferred at least until after discovery is conducted as to those claims and a summary judgment motion is filed.

III. The Parties' Objections Pursuant to Rule 72(a)

Plaintiff objects to Magistrate Judge Davison's order dated February 15, 2012, denying plaintiff's request to extend the discovery deadline in order to take the non-party depositions of

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Carlin and one other witness (Doc. #53), and defendant Abadir objects to Judge Davison's order dated April 9, 2012, denying defendant's request to re-open discovery in order to take the deposition of plaintiff's attorney, Harold R. Burke, Esq. Fed. R. Civ. P. 72(a).

 

On November 22, 2011, the Court issued a revised scheduling order setting a deposition deadline of February 15, 2012, and a discovery deadline of February 29, 2012. On February 3, 2012, plaintiff's counsel moved for an extension of time to complete discovery in order to take the depositions of Carlin and Stephen Herman M.D., a forensic psychologist who evaluated plaintiff and Abadir in connection with their divorce in 2006. On February 15, 2012, Judge Davison denied plaintiff's motion to extend the discovery deadline, essentially because plaintiff had had a sufficient opportunity to take the two depositions prior to the deadline.

Also on February 15, Judge Davison did extend the discovery deadline for the sole purpose of permitting non-party Cablevision to comply with certain subpoenas. On March 5, 2012, Cablevision produced an audio recording of the June 27, 2010, telephone call to Cablevision in which plaintiff was informed that the auto-forwarding feature on her account was enabled, such that all her emails were simultaneously being forwarded to her ex-husband's email address. The recording revealed that both plaintiff and Mr. Burke participated in the phone call, although it was Burke who primarily discussed the forwarded emails with the Cablevision representative.

After receiving the recorded telephone call, Abadir's counsel moved to re-open discovery in order to take Burke's deposition, contending Burke had become an important fact witness on the issue of when the statute of limitations period commenced. Specifically, defendant contended that Burke's participation in the June 2010 Cablevision call suggested that plaintiff had discovered her emails were being auto-forwarded to her ex-husband more than two years

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prior to when she filed this lawsuit in December 2010.3 On April 9, 2012, Judge Davison denied the motion, ruling that defendant's "effort to tie this June 2010 episode to the statute of limitations defense is unpersuasive" because Burke's participation in the Cablevision call was simply not relevant to the assertion that plaintiff should have known about the auto-forwarding arrangement more than 18 months earlier (i.e., prior to December 2008).

 

Matters concerning discovery are considered non-dispositive of the litigation. Caidor v. Onondaga Cnty., 517 F.3d 601, 605 (2d Cir. 2008). When evaluating an order by a magistrate judge with respect to a non-dispositive pretrial matter pursuant to Rule 72(a), the district court shall "modify or set aside any part of the order that is clearly erroneous or is contrary to law." Beckles v. The City of N.Y., 2010 WL 1841714, at *2 (S.D.N.Y. May 10, 2012); see 28 U.S.C. §636(b)(1)(A). A decision is clearly erroneous, and will provide for overturning a magistrate judge's resolution of a non-dispositive pretrial matter, if after reviewing the record the Court is left with the definite and firm conviction that a mistake has been committed. United States ex rel. Sasaki v. N.Y. Univ. Med. Ctr., 2012 WL 220219, at *3 (S.D.N.Y. Jan. 25, 2012). However, "a magistrate judge's resolution of a non-dispositive matter should be afforded substantial deference and may be overturned only if found to have been an abuse of discretion." Beckles, 2010 WL 1841714, at *2.

Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order may be modified only for good cause and with the judge's consent. "A finding of good cause depends on the diligence of the moving party." Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). To satisfy the good cause standard, "the party must show that, despite its having

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exercised diligence, the applicable deadline could not have been reasonably met." Sokol Holdings, Inc. v. BMD Munai, Inc., 2009 WL 2524611, at *7 (S.D.N.Y. Aug. 14, 2009). The good cause standard is not satisfied when the extension rests on information which the party knew or should have known in advance of the deadline. Wolk v. Kodak Imaging Network, Inc., 2012 WL 11270, at *8 (S.D.N.Y. Jan. 3, 2012) (internal citations omitted).

 

As to plaintiff's request to extend the discovery deadline, plaintiff fails to satisfy the "good cause" standard. She was given sufficient time to take the depositions of Carlin and Herman prior to the deadline, and was well aware that each may have had information pertaining to this action prior to seeking the extension.

As to defendant's request to re-open discovery, defendant fails to show that Burke's participation in the June 27, 2010, Cablevision telephone call somehow gives rise to the inference that plaintiff knew or could reasonably have discovered, 18 months earlier, that her emails were being forwarded to her ex-husband. Burke's participation in the June 27 call shows that he was the one, acting on behalf of plaintiff, who obtained the information from Cablevision about the auto-forwarding feature having been enabled. And his participation may also show plaintiff was less than completely candid when she testified about the call at her deposition. But nothing about the fact that Burke was directly involved in the call or even that he initiated the call suggests plaintiff knew or had reason to know about the auto-forwarding more than 18 months earlier. There may be other evidence in the case suggesting plaintiff had a reasonable opportunity in 2008 or earlier to discover the fact that her emails were being auto-forwarded, but Burke's involvement in the Cablevision call does not constitute such evidence.

Therefore, Judge Davison's orders denying plaintiff's motion to extend discovery and defendant's motion to re-open discovery were neither clearly erroneous nor contrary to law.

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CONCLUSION

Plaintiff's motion for an indicative ruling pursuant to Fed. R. Civ. P. 62.1 seeking relief from judgment under Fed. R. Civ. P. 60(b) is GRANTED, and the Court states it would grant plaintiff's motion to re-open the case against Larry M. Carlin if the Court of Appeals were to remand for that purpose.

Plaintiff's objection to Judge Davison's order denying her request to extend the discovery deadline is OVERRULED.

Defendant Abadir's objection to Judge Davison's order denying his request to re-open discovery is OVERRULED.

The Clerk is instructed to terminate these motions. (Docs. ## 49, 53).

By no later than June 13, 2012, the parties are directed to redact personal information from the various documents filed under seal in this case, and to re-file those documents in the public docket.

All counsel are directed to attend a status conference before the Court on June 18, 2012, at 10:00 a.m.

SO ORDERED:

1. The Court denied defendant Abadir's motion to dismiss. On June 21, 2011, the Court granted plaintiff's unopposed motion for leave to file an amended complaint naming Abadir as the sole defendant.

2. Plaintiff moves alternatively for relief pursuant to Rule 60(b)(3) and (6). However, her motion must be treated as one for relief on the basis of newly discovered evidence pursuant to Rule 60(b)(2). "Where a claim sounds very much like a claim regarding newly discovered evidence, the claim is controlled by 60(b)(2) and should not be labeled as if brought under a different provision of Rule 60(b)." State Street Bank and Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 178 (2d Cir. 2004).

3. The statute of limitations for violations of the Wiretap Act and the Stored Communications Act is two years after plaintiff has had a "reasonable opportunity to discover the violation." 18 U.S.C. §§2520(e), 2707(f).

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