Wtulich v. Filipkowska

NIKODEM WTULICH, Petitioner, v. MAGDA FILIPKOWSKA, Respondent.

16-CV-2941 (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

July 3, 2019

MEMORANDUM AND ORDER

James Orenstein, Magistrate Judge:

Petitioner Nikodem Wtulich ("Wtulich") seeks to have respondent Magda Filipkowska ("Filipkowska") return their daughter AW to Poland.¹ See Docket Entry ("DE") 1 (Petition); Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 ("the Convention"), T.I.A.S. No. 11,769, at 1, 22514 U.N.T.S. at 98, reprinted in 51 Fed. Reg. 10493 (1986); International Child Abduction Remedies Act, 22 U.S.C. § 9001, et seq. On March 20, 2019, following a bench trial, I granted Wtulich's petition. See Wtulich v. Filipkowska, 2019 WL 1274694, at *11 (E.D.N.Y. Mar. 20, 2019) (findings of fact and conclusions of law). Filipkowska now seeks a new trial on the basis of what she claims is newly discovered evidence. See DE 76; Fed. R. Civ. P. 59(a)(2); Fed. R. Civ. P. 60(b)(2). She also seeks a stay pending her pro se appeal of the order that AW return to Poland. See DE 85; Fed. R. App. P. 8(a)(1). For the reasons set forth below, I deny both motions.

I. Background

I assume the reader's familiarity with the facts of this case as summarized in my earlier decision. In short, AW was born in Poland in 2008, and Poland remained her habitual place of residence at the time her parents last agreed about where she should live. In 2013, Wtulich consented to have Filipkowska take AW with her for a three-month trip to the United States toattend a family wedding. Filipkowska has retained AW in this country ever since. She married after bringing AW to the United States, and she now and lives with her husband and AW in New Jersey, where AW attends school. AW's passport expired in 2015. As of the time of the bench trial, Filipkowska reported that neither she nor AW had lawful immigration status in this country, and that she was unable to obtain a green card for her daughter. See Wtulich, 2019 WL 1274694, at *1-2.

With the parties' consent, I presided at a bench trial of the matter on April 23-24, 2018. See Wtulich, 2019 WL 1274694, at *1; DE 44; DE 50; DE 51; DE 53 (trial transcript ("Tr.") pp. 1-58); DE 54 (Tr. pp. 59-145); 28 U.S.C. § 636(c). After receiving the parties' post-trial submissions, I granted Wtulich's Petition on March 20, 2019. I concluded that Wtulich had established that Filipkowska wrongfully retained their daughter in the United States in violation of the Convention and that Filipkowska had failed to establish that AW was "well-settled" in the United States in the pertinent legal sense, or that Wtulich had acquiesced to AW's remaining in the United States. See Wtulich, 2019 WL 1274694, at *11. The Clerk entered judgment on March 21, 2019. See DE 63.

Filipkowska now claims she is entitled to a new trial because there is new evidence that AW is "well-settled" in the United States for purposes of the Convention. She reports that she and AW obtained green cards and that she is now legally, gainfully employed. She also cites as new evidence certain emails between herself and Wtulich which she says demonstrate that Wtulich acquiesced to AW remaining in the United States. See DE 76-20 ("Memo. I") at 3-5.² In considering the motion I have reviewed the evidence Filipkowska submitted, Wtulich's opposing memorandum, and Filipkowska's reply memorandum. See DE 76-2 through DE 76-19 (exhibits); DE 77 ("Opp. I"); DE79 (Reply); DE 80 (Filipkowska's supporting affidavit); DE 80-1 (Filipkowska's supplemental exhibit).

On June 26, 2019, Filipkowska filed a motion to stay AW's return to Poland pending the resolution of her appeal. See Fed. R. App. P. 8(a)(1); DE 85 (motion); DE 85-1 ("Memo. II"). Wtulich responded on June 28, 2019. See DE 87 ("Opp. II").

II. The Motion for a New Trial

A. Applicable Law

Filipkowska seeks a new trial or entry of a new judgment under Rules 59 and 60 on the ground that a litigant may "seek a new trial based upon newly discovered evidence and any other reason justifying relief from the operation of a judgment after trial." Memo. I at 2 (citing Ilardi v. Bechtel Power Corp., 106 F.R.D. 567, 570 (E.D.N.Y. 1985)).

A court may grant a new trial for "any reason for which a rehearing has heretofore been granted in a suit in equity in federal court." Fed. R. Civ. P. 59(a)(1)(B). Where, as here, the trial was not before a jury, the court may "open the judgment ..., take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment." Fed. R. Civ. P. 59(a)(2). "Any such motion must be based upon manifest error of law or mistake of fact." Burzynski v. Travers, 111 F.R.D. 15, 17 (E.D.N.Y. 1986) (internal citations omitted). "[A] trial court should not grant a new trial merely because the losing party can probably present a better case on another trial." Ball v. Interoceanica Corp., 71 F.3d 73, 76 (2d Cir. 1995). To the contrary, a court should order a new trial only if the "'refusal to take such action appears ... inconsistent with substantial justice.'" LiButti v. United States, 178 F.3d 114, 118 (2d Cir. 1999) (quoting Fed. R. Civ. P. 61). Indeed, courts "routinely reject" such motions "in the absence of extraordinary circumstances." New York v. Shinnecock Indian Nation, 2008 U.S. Dist. LEXIS 9226, at *5-6 (E.D.N.Y. Feb. 7, 2008). Suchextraordinary circumstances exist if the court "overlooked any relevant facts or legal authority," if its factual findings or conclusions of law were erroneous, if there is a "supervening change in law," or if there is newly discovered evidence. Saint v. United States, 243 F.R.D. 50, 52 (E.D.N.Y. 2007). Filipkowska seeks a new trial on the latter ground.

Under both Rule 59 and Rule 60(b)(2), the standard for assessing a claim of newly discovered evidence is the same. See Metso Minerals, Inc. v. Powerscreen Int'l Distrib. Ltd., 833 F. Supp. 2d 282, 293 (E.D.N.Y 2011), rev'd on other grounds, 526 F. App'x 988 (Fed. Cir. 2013); Patel v. Lutheran Med. Ctr., 775 F. Supp. 592, 596 (E.D.N.Y. 1991). To succeed on a motion pursuant to Rule 60(b)(2), the movant bears the burden of showing:

(1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceedings, (2) the movant was justifiably ignorant of them despite due diligence, (3) the evidence is admissible and of such importance that it probably would have changed the outcome, and (4) the evidence is not merely cumulative or impeaching.

United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (internal citations omitted). Evidence that was clearly available at the time of the proceeding is not newly discovered. See Pryor v. Berryhill, 286 F. Supp. 3d 471, 474 (E.D.N.Y. 2017) (internal quotation omitted) (citing Whitaker v. New York University, 543 Fed. App'x 113, 114 (2d Cir. 2013)); Sorenson v. Wolfson, 2015 WL 4095197, at *3 (S.D.N.Y. July 7, 2015) (newly discovered evidence "must have been unknown to the movant at the time of trial, and the movant must have been excusably ignorant of the facts - meaning that the facts could not have been discovered by a diligent search") (internal citations omitted).

B. Analysis

1. Post-Trial Developments: AW's Green Card and Filipkowska's Job

Filipkowska and AW received green cards on approximately July 24, 2018. Memo I at 3; DE 76-2. In explaining her trial testimony that she and AW were unable to secure green cards, Filipkowska asserts "that she was misinformed by her immigration agency that a passport wasrequired to get AW a green card. It turns out that was a mistake[.]" Memo. I at 3. Filipkowska further claims that, since the conclusion of the trial, she has begun working legally, and her salary "has risen to approximately $60,000 per year." Id. at 5.

Filipkowska's evidence relating to the green cards and her higher salary fail the first element of the applicable test: namely, that newly discovered evidence must establish facts that existed at the time of trial. As Filipkowska acknowledges, AW obtained her green card more than three months after the trial ended. "At the time of the trial," as Filipkowska's counsel acknowledges, Filipkowska and "AW did not possess green cards." DE 76 ¶ 5.

The evidence of Filipkowska's higher salary likewise fails the test's first prong because it relates to a post-trial development. Filipkowska relies on a letter written in April 2019 describing a job that began in May 2018 - after the trial had already ended. See DE 80-1. That is not newly discovered evidence within the meaning of the applicable rule.

The evidence also fails the test's second requirement that Filipkowska's ignorance of the new evidence was justifiable. At the trial in 2018, Filipkowska testified that she had not even applied for a green card for AW because she had come to understand that doing so would be futile so long as AW lacked a valid passport. See Tr. at 94-95, 103-04, 110-11. She now contradicts that testimony and swears that she and her husband applied for AW's green card in 2017. See DE 76-5 (Filipkowska Affidavit) ("Filipkowska Aff.") ¶ 63. If this most recent statement is true, Filipkowska's ignorance of it at the time of the trial was inexplicable, let alone justifiable.

Even if the evidence of AW's green card and Filipkowska's employment qualified as newly discovered evidence, which they do not, such evidence is not "of such importance that it probably would have changed the outcome" of this case. Teamsters, 247 F.3d at 392 (internal citation omitted). "[T]he default presumption under the Convention" is that, in the absence of certain conditions, "achild shall be returned to the state from which she originally was wrongfully removed." Lozano v. Alvarez, 697 F.3d 41, 51 (2d Cir. 2012) (emphasis in the original). AW's immigration status and Filipkowska's employment status were not the only reasons I granted Wtulich's petition, or even...