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Plaintiffs, - against THE WILLIAM MORRIS AGENCY INC., et al., Defendants.
) ) )
98 CV 8272 (RPP)
DECLARA TION OF MARTIN R. GOLD IN OPPOSITION TO MOTION PURSUANT TO FRCP 60(b)
Martin R. Gold, pursuant to 28 U.S.C. § 1746, declares under penalty of perjury as follows: I. I am an attorney admitted to practice in New York and before this Court, and I am
a member of SNR Denton US LLP. I, together with other lawyers at my then and current firms, represented the plaintiffs in the above-referenced action until March 28, 2003, when the Court granted our unopposed motion for leave to withdraw as plaintiffs' counsel. I understand that the action was thereafter dismissed and marked terminated on or about February 14,2005. 2. I make this Declaration in opposition to that portion of a motion by Leonard
Rowe, brought pursuant to Fed R. Civ. P. 60(b), which requests this Court to refer what Mr. Rowe claims is "newly discovered evidence" to the U.S. Attorney, this Court's Committee on Grievances, and the Departmental Disciplinary Committee, First Judicial Department, for investigation of me and various other attorneys affiliated with me in representing Mr. Rowe in this action.
The primary relief requested by Mr. Rowe is to reopen his case against the
defendants who had not settled with him, and against whom this Court dismissed the action.
Many of the facts contained herein are set forth on the basis of my memory, without the aid of documents since, in March 2003, my firm delivered all of our files to successor counsel, Gary, Williams, Finney, Lewis, McManus, et al. ("Gary Firm"). The files were extensive, consisting largely of hundreds of boxes of files produced by the defendants in hard copy, which we delivered without any means of retaining copies.
The material allegations set forth by Mr. Rowe are neither true nor "newly
discovered," as he claims. Moreover, Mr. Rowe withholds material facts. Indeed, Mr. Rowe fails to inform this Court that on April 6, 2010 -- more than two years ago -- he filed a complaint against me and Raymond J. Heslin with the Departmental Disciplinary Committee, First Judicial Department, a copy of which is attached as Exhibit A. 4. By order of The Appellate Division, Mr. Rowe's complaint was transferred to the I am
Second Department because I am a member of the Committee for the First Department.
informed that a Grievance Committee for the Second Department dismissed the complaint. 5. In addition, on June 21,2010, Mr. Rowe sent a letter to the Chairman and the
New York Managing Partner of my firm (Exhibit B hereto), essentially repeating his allegations and threatening the imminent filing of a lawsuit. No such lawsuit has been filed. 6. Notably, Mr. Rowe's two-year old complaint to the Disciplinary Committee and
his letters to my law firm's management contain substantially the same allegations that Mr. Rowe makes here (and which he misrepresents are "newly discovered"). Mr. Rowe's primary
assertion here is that my colleagues and I fraudulently concealed from Mr. Rowe (our thenclient) hundreds of emails produced by defendants in discovery containing the word "nigger," which he asserts would surely have defeated summary judgment. Yet in his complaint to the
Disciplinary Committee, he made the same allegations, claiming that the word appeared "over 230 times" and in his letter to my firm he allegedly found the word "nigger over 232 times in emails from the files of[defendants] 7. William Moms and CAA."
Moreover, I understand that Mr. Rowe self-published a book in 2010, in which he
likewise repeated similar allegations. 8. That Mr. Rowe failed to disclose to this Court his prior disciplinary complaint,
and misrepresented that they were "newly discovered," speaks volumes. ' Of course, Mr. Rowe does not need this Court to refer anything to a prosecutor or disciplinary agency; anyone can do that without judicial assistance. Having done so, and having failed to secure any relief, he is plainly turning to this Court in the hopes that a judicial imprimatur will help further his baseless attack on his former counsel.
See Linkco, Inc. v. Akikusa, No. 09-1551, 2010 WL 605739 (2d Cir. Feb. 22, 2010) (copy attached at
Mr. Rowe also falsely implies that he and the other plaintiffs received no
compensation in connection with this action. In fact, almost all of the concert promoter defendants settled with the plaintiffs. Together, these settlements produced a total of about $12 million, pursuant to settlement agreements, which contain confidentiality provisions. After
deducting legal fees and expenses, the remainder was paid to the plaintiffs. The plaintiffs never disclosed to us how they divided the proceeds, but I understand that Mr. Rowe received approximately one-half, which is more than $3.5 million. 10. The substance of Mr. Rowe's allegations -- that I and other attorneys at my firm
uncovered extensive damaging evidence in discovery which we withheld from him and the other plaintiffs because we were conspiring with the defendants, and that we wrongfully withdrew from the case to allow the defendants to prevail in their summary judgment motions -- are, in all events, utterly false. 11. I had no knowledge that the word "nigger" appeared in documents produced by
defendants, and I still have no knowledge that the word so appears. Notably, Mr. Rowe has produced no such documents. 12. Mr. Rowe complains that certain documents produced by defendants were not
made available to the plaintiffs by my firm. As to that, he may be correct. Defendants sought and obtained a protective order which allowed them to mark certain documents to be restricted only to counsel. As required by the order, documents so marked were withheld from the plaintiffs, but later delivered to the Gary Firm when my firm was relieved. 13. Finally, Mr. Rowe argues that my firm withdrew as counsel at an inopportune
time, leaving the Gary Firm to oppose the defendants' motions for summary judgment, for which it was ill-equipped. In fact, Mr. Rowe first brought the Gary Firm into the case in on about June
2002. Mr. Rowe continuously demanded that the Gary Firm be given increasing responsibility, limiting our firm's role and our authority to do anything without his personal approval. Continuing with the case became impossible. was uncooperative, insulting and demanding. We explained our problems to Mr. Rowe, who We were compelled to withdraw. Contrary to Mr.
Rowe's present assertion, we asked the plaintiffs to agree to our withdrawal, leaving the Gary Firm as lead counsel (which they already were, de/acto). We stated that in the absence of agreement we would request the same relief from the Court by contested motion. We never
stated or implied that we would attempt to discuss that matter with the Court ex parte. After we were relieved, the Gary Firm continued to request our assistance, and we complied to the extent we reasonably could. 14. In all respects, I and all of the other attorneys in my firm working on this case
fulfilled all of our duties toward our clients and acted in accordance with our ethical responsibilities. 15. all respects. I declare, under penalty of perjury that the foregoing is true and correct. Mr. Rowe's motion, as against me and others from my firm, should be denied in
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, SOOPearl Street, in the City of New York, on the 22nd day of February, two thousand ten. PRESENT: GUIDO CALABRESI, REENA RAGGl, Circuit Judges, JOHN G. KOELTL: District Judge.
LINKCO, INC., a Delaware Corporation, Plaintiff-Appellant,
NAOYUKI AKIKUSA, Individually, FUJITSU LIMITED, a Japanese Corporation, Defendants-Appellees. APPEARING FOR APPELLANT: STEVEN K. FEDDER (Shannon A.S. Knox, on the brief), Leitess Leitess Friedberg & Fedder P.C., Owings Mills, Maryland. RICHARD J. O'BRIEN Austin LLP, Chicago, (Paul E. Veith, Sidley Illinois, Timothy J .
• District Judge John G. Koeltl of the United States District Court for the Southern District of New York, sitting by designation.
Treanor, Michael D. Mann, Sidley Austin LLP, New York, New York, on the briefs, Sidley Austin LLP, Chicago, Illinois. Appeal from the United States District Court for the Southern District of New York
(Shira A. Scheindlin,
IT IS HEREBY ORDERED, ADJUDGED, AND
UPON DUE CONSIDERATION, DECREED that the March LinkCo,
15, 2009 judgment
of the district
court is AFFIRMED. filed pursuant to
from the dismissal
of its complaint dismissing
Fed. R. Civ. P. 60(b) and 60(d) seeking claim against and unfair 12(b)(6) defendant Fujitsu
relief from a judgment for conversion, review
an earlier settled of trade secrets, grant of a Rule (2d Cir,
misappropriation a district court's
de novo, see Holmes
568 F.3d 329,335
2009), we review its denial of a Rule 60 claim only for abuse of discretion, Partners parties' v. Bouchard, familiarity 34 F.3d 1132, 1140 (2d Cir. 1994). In doing
see Paddington the
so, we assume
with the facts and the record of prior proceedings, to explain our decision that because to affirm. LinkCo
which we reference
only as necessary
We note at the outset dismissal of Counts
has failed specifically
and Four of its complaint,
any such argument Accordingly,
See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir, 1998).
we here consider
In November 2002, a jury found in favor of Link Co on the unfair competition claim and awarded it $3,500,000 in damages plus interest. The parties subsequently entered into a settlement agreement and, in April 2003, stipulated to a dismissal of the action with
only whether the district court properly dismissed the claim for fraud on the court alleged in Count One.
submits that the district court erred in concluding that because Count One
alleged nothing more than fraud upon an individual litigant, it provided no basis for relief from judgment under Rule 60( d). We are not persuaded. may "entertain an independent Pursuant to Rule 60( d), a court Fed. R. Civ. P.
action to relieve a party from a judgment,"
60(d)( I), or "set aside ajudgment for fraud on the court," Fed. R. Civ. P. 60(d)(3). To obtain equitable relief through an independent action under Rule 60( d), a claimant must H( 1) show that [it has] no other available or adequate remedy; (2) demonstrate that [its] own fault,
neglect, or carelessness did not create the situation for which [it] seek]s] equitable relief; and (3) establish a recognized ground such as fraud, accident, or mistake for the equitable
relief." Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 662 (2d CiL 1997). The type of fraud necessary to sustain an independent judgment action attacking the finality of a
under Rule 60( d) "is narrower in scope than that which is sufficient for relief" 860 F.2d 556, 558 (2d CiL 1988) (citing Hazel(1944». While fraud on the
under Rule 60(b). Gleason v. landrucko, Atlas Glass Co. v. Hartford-Empire
Co., 322 U.S. 238,244-46
court can support Rule 60(d) relief, such fraud must "seriously affect the integrity of the normal process of adjudication." Gleason v. landrucko, 860 F.2d at 559; accord Hadges v. that such fraud
Yonkers Racing Corp., 48 F.3d 1320, 1325 (2d CiL 1995) (observing
"embraces only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in 3
the usual manner its impartial. task of adjudging cases" (internal quotation marks omitted». This is because Rule 60(d) actions are warranted only when necessary "to prevent a grave miscarriage of justice." United States v. Beggerly, 524 U.S. 38,47 (1998).
Here, the district court construed the allegations in LinkCo's complaint to suggest possible "obstruction of discovery and witness perjury." LinkCo, Inc. v. Akikusa, 615 F.
Supp. 2d 130, 137 (S.D.N.Y. 2009). upon a single litigant LinkCo
It concluded that such allegations indicated "a fraud [could not]
rather than a fraud upon the Court and ...
proceed under Rule 60(d)(3)."
Id. at 136. This conclusion does not manifest an "erroneous
view of the law or ... the evidence," In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks omitted), sufficient to support a finding that the district court abused its discretion. In Gleason v. Jandrucko, we observed that "neither perjury nor nondisclosure,
by itself, amounts to anything more than fraud involving injury to a single litigant." 860 F .2d at 560. Thus, we cannot conclude that the district court's decision not to entertain LinkCo's Rule 60(d) claim for fraud falls outside "the range of permissible decisions." F.3d at 132 (internal quotation marks omitted). LinkCo's contention that the district court abused its discretion in finding LinkCo's claim for equitable relief barred by laches is equally unavailing. The complaint alleges that In re Sims, 534
in a September 22,2005 presentation entitled "A Conspiracy to Flaunt American Justice By Foreign Executives Right Inside [U.S.] Federal Court," LinkCo outlined for Fujitsu director Ikujiro Nonaka facts then in its possession indicating Fujitsu's concealment of the full extent of its use of LinkCo's technology and its understatement
of the resulting damages.
the alleged content of the presentation, court's determination that LinkCo's
we identify no abuse of discretion failure to commence
in the district
suit until three years later
a lack of diligence precluding any claim for equitable relief. Although LinkCo
suggests that the timeliness of its Rule 60 claim should be determined by reference to New York's six-year statute of limitations for fraud, N.Y. C.P.L.R. § 213(8), this argument
is wholly without merit. "Rule 213(8) governs the time for filing tort claims of fraud under state law, not the time for filing motions to vacate federal judgments due to fraud." King v. First Am. Investigations, LinkCo's Inc., 287 F.3d 91, 94 (2d Cir. 2002). that it "could not have discovered the fraud perpetrated by
Fujitsu until after 2006, when it finally obtained the inoperable hard driver] from Kanda," Appellant's Br. at 33, is not convincing given the 2005 presentation, see Rite Aid Corp. v.
Grass, 48 A.D.3d 363, 364, 854 N.Y.S.2d
I, 2 (I st Dep 't 2008) (noting that "the time a
reasonably diligent plaintiff could have discovered ... fraud turns upon whether a person of ordinary intelligence possessed knowledge of facts from which the fraud could be reasonably inferred" (internal quotation marks omitted)); cf. Rothman v. Gregor, 220 F.3d 81, 96-97 (2d Cir. 2000) (noting that statute of limitations on alleged securities fraud claims begins to run when reasonable investor, in exercise of reasonable diligence, should have discovered facts underlying alleged fraud). In any event, LinkCo waited more than two years after obtaining the hard drive to commence suit. Link'Co seeks to excuse its delay by noting that forensic experts had to restore the inoperable hard drive and recover some 100,000 deleted files, many of which had to be translated from Japanese to English and all of which had to be 5
reviewed. As the district court observed, however, much of the information so obtained only duplicated that already possessed by LinkCo. We are thus not persuaded on the totality of the record that the district court abused its discretion in finding a lack of diligent pursuit of rights, and we affirm its dismissal of the claim for equitable relief.' See Motorola Credit
Corp. v. Uzan, 561 F.3d 123, 127 n.3 (2d CiL 2009) (allowing affirmance on any ground appearing in record). We have considered without merit. Accordingly, LinkCo's remaining arguments and conclude that they are
the March 15,2009 order of the district court is AFFIRMED. FOR THE COURT: CATHERINE O'HAGAN WOLFE, Clerk of Court
2 By failing to raise the issue in its opening brief, LinkCo waived its argument that Fujitsu's unclean hands prevent Fujitsu from asserting a laches defense. See Thomas v. Roach, 165 F.3d 137, 145-46 (2d Cir. 1999) (holding argument first raised in reply brief waived).
LEONARD ROWE 11553 Twlckharn Court Suwanee, Georgia 30024 404~374-1370 .Iune 21,2010 roween tertain(a)aol.com Fax
lUott Portnoy, Esq.
Cha rman SO NENSCHEIN NATH s. ROSENTHAL, LLP 130 K. Street, NW Suit 600, East Towel' \Va. hington, D.C. 20005·3364 Fax No. 212~768-6800: .Tefti ry J. Murphy, Esq. Ma aging Partner SO NENSCHEIN NATH & ROSENTHAL, A venue of the Americas York, New York 10020·1089
Agency, et al,
et al, v. William ~orriS
Re: Rowe Entertainment, Ge tlernen:
As you arc probahl y aware, the undersigned, and others were previously represented hy Martin Gold and Ray Heslin of your firm, SONNENSCHElN, in Wig Ilion that was brought against The William Morris Agency, Creative [Artist Ag ley (CAI\) and others. Marlin Gold and Ray Heslin, in their official calPacity as c nployccs of your firm, on the eve of summary judgment proceedings, d~ci.dcd to t .cach their fiduciary duty to their clients (myself and the other pJaintilifs) hy witl drawing from representation premised on nothing but factual mendacity,/ G~Jd alid Mr. Hes 111, while employed by your Iirrn, SONNENSCHEIN, intentionally and deli oerarely sabotaged our case by withdrawing hut only after they had engaged in as· rics of duplicitous communications with the opposing parties where they SOLI ht to conceal and contain the public dissemination of the derogatory tcn~ !
It ic ,my fir~n belief. and the evidcn~e will hear me ~~t, t,hat ~r.
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Ellio t Portnoy, Esq./ Jeffery J. Murphy, Esq. pg.2:
"nil!. er' over 232 limes in the e-mail
. f William
To a d insult to injury, these attorneys further breached their fiduciary dutips by cons ilting, conspiring and joining forces with our opponents to advance their own intercsts and that or your. firm, at the exp~nsc of t~eir <.:!icnts whom the~ bet[ayed in til worst manner possible at the worst time possible tor such an egregIOus act to occ r.
Viv tine Mar part that the
of your firm, I note that SONNENSCHEIN now represents ndi and NBC, which, now upon information and belief, has a rather mtortahle relationship with the principal defendant in our case, William 'is Endeavor. I find this conflict or interest very disturbing. T IS 1S cularly true if SONNENSCHEIN was representing these parties at th time Martin Gold and Ray Heslin came to SONNENSCHEIN in the merge with ubinlsaurn firm where they previously worked.
I at presently preparing civil litigation to he initiated against Mr. Gold and Heslin, for l violation of NY Judiciary Law 4~7 for collusion with the opposing ~artics alot g with the other attorneys that represented William Morris and ICAA. Unlbrtunately, SONNENSCHEIN will be a party to this litigation. Ho ever, con: istcnt with the provisions of FRCP and the New York provisions reg· rding scul .rnent discussions, this letter is not to be construed as anything othe than pre. enting an opportunity for SONNENSCHEIN to avail itsel I' of the oppo tunity 10 d'scuss the possibility of resolving the claims and concerns of the under1'igned prio. to riliJ~g of the compla~nt/p~ljtion, which will be v.erificd, and the t.::r;~ing pub H': reaction to same. This will also show the conscious concealment jOt the der gatory term "nigger" 232 times and also that Martin Gold threatened his !client, the mdersigned, in writing that if I opposed the motion to withdraw, that Gold and Heslin ~oll!d. further compromise our case. This was totally unfa rand extr mely prejudicial.
courage you to give me a call to facilitate om, in person, communication to rmine if an amicable resolution can be reached between your firm al1d the rsigned prior to the deployment of the legal vehicles that have been] made Iable to me for redress of the atrocious activities of Martin Gold, Ray ~e.sJill and your firm. SONNENSCHEIN NATH & ROSENTHAL.
J el dct und ava
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Portnoy, ES(I./ Jeffery J. Murphy, Esq. pg.3:
Than iug you in advance for your anticipated interest and assistance providdd in this n atrer. J look forward to hearing from you within the next 24-4~ hours a~ my perso Htl deadline is Friday, June 25, 20 I 0 10 COmmence my action referenced herd I above. I trust that we can put this matter behind us prior to your firm's antici oatcd merger with the Denton firm of the UK. I remain: I
I I I
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LEONA.RD ROWE j 006 SA Y TREE
Duluth, 30097 404-374-1370 April 6, 20 J 0
One Elk Street Albany, NY 12207 Departmental iplinary For the First District 61 Broadway Floor New York, NY 10006 Dear Executive Director Bucklin and State Bar Disciplinary Officials:
I write to file a formal against Attorneys Martin Roth Gold (Bar No. (39) and Attorney Raymond James Heslin (Bar No. 1131754) who previously represented the undersigned during some exceptionally complex and politically sensitive litigation against The William Morris Creative Artist Agency (C:AA) and other defendants regarding race based discrimination in the entertainment industry that has, and continues to plague the AfricanAmerican Promoters since the industry's inception. It is my understanding that both of these attorneys arc now employed by andlor practicing law with the law firm of Sonnenschein, Nath & Rosenthal at 1221 A venue of the Americas, New York, New York J 0020-1 00 l . The attorneys referenced herein above, actually sought me and my company out as party plaintiffs, along with other African-American Promoters, inducing us to retain their linn for the rendition of professional services in part, because they asserted that we had a "great case". The evidence was overwhelming in support of the allegations contained in the Complaint and what we had acquired in discovery. To say that this information was "damning" would be a gross understatement. The attorneys referenced above, however, upon seeing what was at stake, undertook a conscious effort to undermine the case of their primary clients in favor maintaining the status quo in the entertainment industry by breaching their fiduciary duty of loyalty to us, their clients. This breach of fiduciary duty took the form of intentional failures to disclose to us the discovery information that had been received which literally revealed that the defendants in the case had used the derogatory term "niggers" or variants thereof, over 230 times in official documentation, e-rnails and related items between the defendants in their ongoing efforts to keep AfricanAmerican Promoters from a fair chance to compete in the business.
Instead of doing what they were properly retained to do, Attorneys Gold and Heslin, a campaign to and our case opposing it appears that they may have compromised the judge assigned to our ease, to crush our efforts and destroy any for us to prove our case keeping the d fruits and documentation from us and then, thout withdrawing from our case on the eve or the summary judgment hearing in federal court which caused irreparable damage to our cause. Additionally, these attorneys also threatened me, directly, that if I opposed their withdrawal, would go to the J and ex to create more problems me and the case. r cannot begin to explain to you the egregious and atrocious loss that we sustained as a direct result of the knowingly wrongful and despicable tactics deployed by these attorneys in our case. These types of shenanigans arc precisely what undermines the public'S confidence in the judicial system in general and lawyers in particular. The thought that your lawyer will "sell you out", "push you over the cliff" or "make you walk the plank or push you out of the boat in the middle of the finds substantial support in the actions of Marty Gold Ray I Icslin. Understanding that your Committee cannot represent the undersigned or offer legal advice, I do, however, request that a full, formal investigation into the impropriety of the attorneys referenced herein for ethical violations and infractions of the Code of Professional Responsibility be undertaken and appropriate disciplinary action be imposed to deter future misconduct by these attorneys nst their clients. Please take all steps necessary to bring these concerns to the attorneys that this grievance concerns and acquire their responses thereto and apprise me of same. If there is anything else that r can do to assist your organization in this process please do not hesitate to let me know as I have retained copies of pertinent documents and related items that will serve as evidence of all that I have asserted herein Thanking you in advance for your anticipated interest and assistance in this matter. I remain;
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