Maloul v. Berkowitz ( 2019 )

18-593
Maloul v. Berkowitz
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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 12th day of September, two thousand nineteen.
PRESENT:
JOHN M. WALKER, JR.,
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
Circuit Judges.
_______________________________________
Allen Lowy, Avner Maloul,
Plaintiffs-Appellants,
v. 18-593
VSUS Technologies, Inc.,
Defendant-Appellee,
Ivan Berkowitz, Great Court Capital, LLC, SD
Partners, LLC, Jeffrey Rinde, Hodgson Russ
LLP, Utix Group, Inc., Sunset Brands, Inc.,
Defendants.
_______________________________________
FOR PLAINTIFFS-APPELLANTS: Allen Lowy, pro se, New York, NY.
FOR DEFENDANT-APPELLEE: No appearance.
Appeal from an order of the United States District Court for the Southern District of New
York (Failla, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court dated February 2, 2018, is AFFIRMED.
Appellants Avner Maloul and Allen Lowy1 appeal from a district court order denying their
2018 motion under Federal Rule of Civil Procedure 60(a) to reopen a 2007 lawsuit that was
terminated in May 2011, pursuant to a “Stipulation of Discontinuance” (the “Stipulation”). We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal, to which we refer only as necessary to explain our decision to affirm.
“A district court’s decision on a Rule 60 motion is reviewed for abuse of discretion.”
Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir. 1994). A court abuses its
discretion “when its decision rests on an error of law or a clearly erroneous factual finding, or
when its decision, though not necessarily the product of legal error or a clearly erroneous finding
of fact, cannot be located within the range of permissible decisions.” United States v. Gonzalez,
647 F.3d 41, 57 (2d Cir. 2011).
Rule 60(a) provides that a court “may correct a clerical mistake or a mistake arising from
oversight or omission whenever one is found in a judgment, order, or other part of the record.”
Fed. R. Civ. P. 60(a). Rule 60(a) applies only to “changes that implement the result intended by
the court at the time the order was entered”; it does not permit “changes that alter the original
meaning to correct a legal or factual error.” Rezzonico v. H & R Block, Inc., 182 F.3d 144, 150-
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Lowy, an attorney, is both representing Maloul and representing himself pro se.
51 (2d Cir. 1999) (quoting Kokomo Tube Co. v. Dayton Equip. Servs. Co., 123 F.3d 616, 623 (7th
Cir. 1997)).
The district court did not abuse its discretion in concluding that the termination of the case
in May 2011 did not constitute or reflect a “clerical error” within the meaning of Rule 60(a). The
Stipulation’s caption and text suggest that the parties intended at the time to terminate the whole
of the “above-entitled action.” App’x 41. Although not all “remaining defendants” were
identified by name in the text or signature lines of the Stipulation, its caption named all defendants
and the document provided that it covered the “remaining defendants,” as to which the action was
“discontinued[] with prejudice.” Id. For the next four years, the plaintiffs took no additional
steps regarding the action or the defendants who were not named by the Stipulation. Thus, even
if the Clerk of Court erred by terminating the case, the error was not “clerical” within the meaning
of Rule 60(a); rather, any mistake was one of interpretation, and not amenable to “correction”
under Rule 60. See Rezzonico, 182 F.3d at 150-51.
Maloul and Lowy argue in the alternative that their prior counsel erred in filing a document
that suggested the case as a whole was terminated, and that, because his act was contrary to their
intent, his error should not be attributed to them. They forfeited this argument, however, by
failing to raise it before the district court. See Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d
Cir. 2016) (explaining that this Court generally does not consider issues raised for the first time on
appeal). In any event, civil litigants are generally deemed bound by the acts of their counsel. See
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship., 507 U.S. 380, 396 (1993) (“[C]lients
must be held accountable for the acts and omissions of their attorneys.”).
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We have considered Maloul and Lowy’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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