Marsha Peshkin v. Jeanne Levy-Church

12-816-cv
Marsha Peshkin v. Jeanne Levy-Church, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21st day of December, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 GUIDO CALABRESI,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 In re: Bernard L. Madoff Investment
14 Securities, LLC
15 -------------------------------------
16 MARSHA PESHKIN,
17 Plaintiff-Appellant,
18
19 -v.- 12-816-cv
20
21 JEANNE LEVY-CHURCH; FRANCIS N. LEVY;
22 and IRVING H. PICARD, Trustee for the
23 Liquidation of Bernard L. Madoff
24 Investment Securities LLC,
25 Defendants-Appellees.
26 - - - - - - - - - - - - - - - - - - - -X
27
1
1 FOR APPELLANT: Helen Davis Chaitman, Becker &
2 Poliakoff, LLP, New York, New
3 York.
4
5 FOR APPELLEES JEANNE Cary Bruce Lerman, (Dereck J.
6 LEVY-CHURCH AND FRANCIS Kaufman, Melinda Eades Lemoine,
7 N. LEVY: Carl Holliday Moor, Fred Anthony
8 Rowley on the brief), Munger,
9 Tolles & Olson LLP, Los Angeles,
10 California.
11
12 FOR APPELLEE IRVING H. David J. Sheehan, (Seanna R.
Brown, on the brief), Baker &
13 PICARD:
Hostetler LLP, New York, New
14 York.
15
16 Appeal from a judgment of the United States District
17 Court for the Southern District of New York (Batts, J.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of the district court be
21 AFFIRMED.
22
23 This is an appeal from a decision of the United States
24 District Court for the Southern District of New York (Batts,
25 J.) affirming the Bankruptcy Court’s (Lifland, J.) denial of
26 a motion under Federal Rule of Civil Procedure 60(b) in
27 proceedings related to the Bernard Madoff fraud. Marsha
28 Peshkin and a large group of other Madoff customers (“the
29 Customers”) moved to vacate the approval of a settlement
30 between the Trustee of the bankruptcy estate of Bernard L.
31 Madoff Investment Securities, LLP (“BLMIS”) and the heirs of
32 Norman Levy, a large customer of BLMIS. The Customers argue
33 that the Trustee failed to disclose $100 billion of relevant
34 transactions between Levy and BLMIS before seeking approval
35 of the settlement. We assume the parties’ familiarity with
36 the underlying facts, the procedural history, and the issues
37 presented for review.
38
39 We review a denial of a Rule 60(b) motion for abuse of
40 discretion. See Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir.
41 2009). “A district court would necessarily abuse its
42 discretion if it based its ruling on an erroneous view of
43 the law or on a clearly erroneous assessment of the
44 evidence.” Transaero, Inc. v. La Fuerza Aerea Boliviana,
45 162 F.3d 724, 729 (2d Cir. 1998) (internal quotation marks
2
1 omitted). “A motion for relief from judgment is generally
2 not favored and is properly granted only upon a showing of
3 exceptional circumstances.” United States v. Int’l Broth.
4 of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). “We look
5 through the district court to the bankruptcy court’s
6 decision.” In re DBSD N. Am., Inc., 634 F.3d 79, 94 (2d
7 Cir. 2011). We therefore “must review the bankruptcy
8 court’s findings of fact and conclusions of law
9 independently.” In re Vebeliunas, 332 F.3d 85, 90 (2d Cir.
10 2003).
11
12 1. The Customers cannot obtain relief under Rule
13 60(b)(2) because the Customers have not shown that the new
14 evidence was of “‘such importance that it probably would
15 have changed the outcome.’” Int’l Broth. of Teamsters, 247
16 F.3d at 392 (quoting United States v. IBT, 179 F.R.D. 444,
17 447 (S.D.N.Y.1998)). Because the $100 billion worth of
18 transactions were offsetting, they could not have altered
19 the possible exposure to liability of the Levy Heirs.
20 Further, the alleged $2 billion margin loan is premised
21 entirely on financial statements that this Court has already
22 deemed fictitious. See In re Bernard L. Madoff Inv. Secs.
23 LLC, 654 F.3d 229, 234 (2d Cir. 2011).
24
25 2. As to the Rule 60(b)(3) motion, the $100 billion
26 offsetting transactions are irrelevant to the Levy Heirs’
27 total exposure and the existence of the $2 billion margin
28 loan is speculative at best. The Customers therefore failed
29 to show “clear and convincing evidence of material
30 misrepresentations.” Fleming v. N.Y. Univ., 865 F.2d 478,
31 484 (2d Cir. 1989).
32
33 3. Rule 60(b)(6) is unavailable if, as here, the
34 motion is “premised on one of the grounds for relief
35 enumerated in clauses (b)(1) through (b)(5).” Liljeberg v.
36 Health Services Acquisition Corp., 486 U.S. 847, 863 (1988).
37
38 For the foregoing reasons, we hereby AFFIRM the
39 judgment of the district court.
40
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44
3