Bahrami v. Ketabchi

*267 SUMMARY ORDER Appellant Irandokht Bahrami, pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Berman, J.), dismissing her state law sexual assault and rape claim. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal. In reviewing the district court’s decision in a bench trial, we review the district court’s conclusions of law de novo and its findings of fact for clear error. See United States v. Coppola, 85 F.3d 1015, 1019 (2d Cir.1996). Under the clearly erroneous standard, ‘“[t]here is a strong presumption in favor of a trial court’s findings of fact if supported by substantial evidence,’ ” and the Court “will not upset a factual finding unless [it is] ‘left with the definite and firm conviction that a mistake has been committed.’ ” Travellers Int'l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1574 (2d Cir.1994) (citations omitted). Moreover, this Court must “give considerable deference to the district court’s credibility assessments and to its determination as to what inferences should be drawn from the evidence in the record.” Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 780 (2d Cir.1991). Here, the burden was on Appellant to prove by a preponderance of the evidence that the alleged rape occurred. See Dean v. Raplee, 145 N.Y. 319, 39 N.E. 952, 954 (1895). Because the district court’s findings are supported by substantial evidence, Appellant has not satisfied the high burden of showing that the court’s findings were “clearly erroneous.” See Travellers Int'l, A.G., 41 F.3d at 1574. Appellee has moved to strike certain portions of Appellant’s appendix on appeal, contending that the documents were not admitted into evidence or considered by the district court. We DENY the motion with regard to the September 2005 letter submitted by Appellant’s former attorney to Magistrate Judge Kevin Fox, as that letter was docketed on the district court’s docket sheet and was part of the record on appeal. We GRANT the remaining portions of Appellee’s motion. To the extent that Appellant argues that the judgment below depended on fraud in the form of fabricated telephone records, such relief should be sought in a motion in the district court under Fed.R.Civ.P. 60(b)(3), rather than as part of this appeal. Rule 60(b)(3) provides that, “[o]n motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding for ... fraud ..., misrepresentation, or misconduct by an opposing party.” Any such motion must be filed “no more than a year after the entry of the judgment,” Fed.R.Civ.P. 60(c)(1); accordingly, in this case, a motion would need to be filed no later than March 4, 2010. Of course, we express no opinion on the merits of this issue. We have reviewed Appellant’s remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.