10-1601-cv
Gottlieb v. Securities and Exchange Commission
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, 500 Pearl Street, in the City of New York,
on the 20th day of April, two thousand eleven.
PRESENT:
PIERRE N. LEVAL,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
___________________________________________
ALLEN GOTTLIEB,
Plaintiff-Appellant,
v. 10-1601-cv
SECURITIES AND EXCHANGE COMMISSION,
Defendant-Appellee.
___________________________________________
FOR PLAINTIFF-APPELLANT: Allen B. Gottlieb, pro se, Aventura, Fla.
FOR DEFENDANT-APPELLEE: David M. Becker, General Counsel; Melinda Hardy,
Assistant General Counsel; Christopher M.
Bruckmann, Senior Counsel, Securities and
Exchange Commission, Washington, D.C.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Preska, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.
Appellant Allen Gottlieb, pro se, appeals the district court’s February 11, 2010 and
March 31, 2010 post-judgment orders denying his motions for reconsideration. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
This Court reviews the denial of a motion for reconsideration for abuse of discretion.
Marrero Pichardo v. Aschcroft, 374 F.3d 46, 55 (2d Cir. 2004). “A district court would
necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Transaero, Inc. v. La Fuerza Aerea Boliviana,
162 F.3d 724, 729 (2d Cir. 1998) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990)) (internal quotation marks omitted).
With respect to Gottlieb’s appeal of the district court’s February 11, 2010 order, his claim
that FBI agent Gerard Forrester’s affidavit establishes that the Securities and Exchange
Commission committed fraud on the district court could have been raised in his prior motions
(brought in 2005) for post-judgment relief. Accordingly, the district court did not abuse its
discretion in finding Gottlieb’s claim to be barred by the doctrine of res judicata, which provides
that “a final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449
U.S. 90, 94 (1980); accord King v. Fox, 418 F.3d 121, 131 (2d Cir. 2005).
With respect to Gottlieb’s appeal of the district court’s March 31, 2010 order, this Court
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has determined sua sponte that the notice of appeal, which was improperly filed in this Court on
July 16, 2010, was untimely. See Fed. R. App. P. 4(a)(1)(B) (“When the United States or its
officer or agency is a party, the notice of appeal may be filed [with the district clerk] by any
party within 60 days after the judgment or order appealed from is entered.”). Accordingly, we
lack jurisdiction over Gottlieb’s appeal of the March 31, 2010 order, which must therefore be
dismissed. See Bowles v. Russell, 551 U.S. 205, 214 (2007).
We have considered Gottlieb’s other arguments on appeal and have found them to be
without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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