VENKATARAM v. OFFICE OF INFORMATION POLICY et al
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 10/16/2013. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NATARAJAN VENKATARAM,
Plaintiff,
HON. JEROME B. SIMANDLE
Civil No. 09-6520 (JBS/AMD)
v.
OFFICE OF INFORMATION POLICY,
MEMORANDUM OPINION
Defendant.
SIMANDLE, Chief Judge:
This matter is before the Court on Plaintiff Natarajan
Venkataram’s motion for reconsideration of this Court’s entry of
summary judgment in favor of Defendant Office of Information
Policy, U.S. Department of Justice. [Docket Item 67.] This action
arises out of Plaintiff’s efforts to obtain records, pursuant to
the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), from the
Department of Justice concerning the investigation of Mr. D.V.S.
Raju, who was Plaintiff’s co-defendant in a criminal case.
(Compl. ¶¶ 7-15.) For the reasons explained below, the motion for
reconsideration is denied.
1. The facts and procedural history of this case have been
recited at length in Venkataram v. Office of Info. Policy, No.
09-6520, 2013 WL 3871730, at *1-*2 (D.N.J. July 25, 2013), and
Venkataram v. Office of Info. Policy, No. 09-6520, 2011 WL
2038735, at *1 (D.N.J. May 25, 2011), and will not be repeated
here. Most recently, the Court granted Defendant’s motion for
summary judgment on the grounds that “Defendant’s search for
records was adequate and that all documents described in the
Vaughn index were properly withheld under Exemptions 5 and 7(C).”
Venkataram, 2013 WL 3871730, at *14.
2. Plaintiff seeks reconsideration of the Court’s Order
pursuant to L. Civ. R. 7.1(i) and Fed. R. Civ. P. 59(e). (Pl.
Mot. Br. at 3-4.) To prevail on a motion for reconsideration, the
movant must show “(1) an intervening change in the controlling
law; (2) the availability of new evidence that was not available
when the court . . . [rendered the judgment in question]; or (3)
the need to correct a clear error of law or fact or to prevent
manifest injustice.” D’Argenzio v. Bank of Am. Corp., 877 F.
Supp. 2d 202, 206-07 (D.N.J. 2012) (citing Max’s Seafood Café ex
rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999)). The Court will grant a motion for reconsideration “only
where its prior decision has overlooked a factual or legal issue
that may alter the disposition of the matter.” Clark v.
Prudential Ins. Co. of Am., --- F. Supp. 2d. ---, No. 08-6197,
2013 WL 1694451, at *1 (D.N.J. Apr. 18, 2013). “[M]ere
disagreement with the district court’s decision is an
inappropriate ground for a motion for reconsideration: such
disagreement should be raised through the appellate process.”
Telfair v. Tandy, 797 F. Supp. 2d 508, 522 (D.N.J. 2011).
3. As a preliminary matter, Defendant argues that the motion
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should be denied as untimely, because Plaintiff filed the motion
more than 14 days after the entry of the Court’s Order, in
violation of L. Civ. R. 7.1(i). The local rule provides: “Unless
otherwise provided by statute or rule (such as Fed. R. Civ. P.
50, 52 and 59), a motion for reconsideration shall be served and
filed within 14 days after the entry of the order or judgment on
the original motion by the Judge or Magistrate Judge.” L. Civ. R.
7.1(i) (emphasis added). Rule 59(e) provides: “A motion to alter
or amend a judgment must be filed no later than 28 days after the
entry of the judgment.” Fed. R. Civ. P. 59(e). Here, Plaintiff
seeks reconsideration of a final judgment, and because L. Civ. R.
7.1(i) expressly defers to the Federal Rules of Civil Procedure,
Plaintiff is entitled to the 28-day filing period permitted under
Rule 59(e). See Navarette v. United States, No. 09-3683, 2013 WL
796274, at *2 (D.N.J. Mar. 4, 2013) (permitting the movant 28
days from the entry of summary judgment to file a motion for
reconsideration), aff’d, --- F. App’x ---, No. 13-1897, 2013 WL
4714310 (3d Cir. Sept. 3, 2013). The Court’s Order was entered on
July 25, 2013, and Plaintiff’s motion was entered on the docket
28 days later, on August 22, 2013. [Docket Items 66 & 67.]
Plaintiff’s motion is timely.
4. Plaintiff argues that the Court made three clear errors
of law. First, Plaintiff contends the Court overlooked his
argument that the nolle prosequi agreement between Mr. Raju and
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the government -- the main document Plaintiff seeks -- had been
“officially acknowledged” by a U.S. Attorney in a federal court
proceeding, and therefore disclosure of the document should be
compelled over an otherwise valid exemption claim, under Wolf v.
CIA, 473 F.3d 370 (D.C. Cir. 2007). (Pl. Mot. Br. at 3-4.)
Plaintiff correctly recites the standard for official
acknowledgment disclosure: (1) “the information requested must be
as specific as the information previously released,” (2) “the
information requested must match the information previously
disclosed,” and (3) “the information requested must already have
been made public through an official and documented disclosure.”
Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). The
plaintiff asserting prior disclosure bears the burden of pointing
to “specific information in the public domain that appears to
duplicate that being withheld.” Afshar v. Dep’t of State, 702
F.2d 1125, 1130 (D.C. Cir. 1983). Here, Plaintiff asserts that
“the document requested . . . exactly matches the document
described by AUSA Dember (the ‘official acknowledgment’); and the
document requested was previously made public through official
and documented disclosure.” (Pl. Mot. Br. at 4.)
5. The Court will not reconsider its Order on this ground.
Plaintiff did not make a proper “official acknowledgment”
argument in his opposition to the motion for summary judgment, as
he merely argued that “the document was ‘officially acknowledged’
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as existing in the files of the SDNY U.S. Attorney’s Office . . .
. .”1 (Pl. Opp’n [Docket Item 58] at 8.) Prior acknowledgment of
the existence of a document is not the same as prior disclosure
of the information contained within the document and that narrow
acknowledgment is insufficient to compel disclosure of the
document under Fitzgibbon. Plaintiff did not previously argue
that the information contained within the document had been
released, and thus he fell short of his burden to show that the
information being withheld matches that which was previously
released, under Afshar.2 The Court will not consider new
arguments upon a motion for reconsideration. Even now, Plaintiff
asserts that the document has been previously acknowledged, but
does not fully describe the information that was previously
disclosed, and his contention that “the document requested was
previously made public through official and documented
disclosure” remains unsubstantiated. (Pl. Mot. Br. at 4.)
Moreover, Plaintiff’s assertion that the government waives
protection of a document’s contents by acknowledging its
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Plaintiff also asserts that Mr. Dember “acknowledged the
existence of the Government’s Agreement . . . .” Id. at 8.
2
Plaintiff’s opposition quoted Mr. Dember as saying, “in
June 2007, the Government entered into an agreement with D.V.S.
Raju, in which he agreed, among other things, to return the $6.12
million that Venkataram transferred to Visualsoft Technologies
between 2002 and 2005.” (Pl. Opp’n at 8.) This is the only
reference to information contained within the document that has
been disclosed.
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existence would turn FOIA upon its head; for example, every
documented listed in a Vaughn index is “acknowledged to exist”
but does not become disclosable if a FOIA exemption applies.
Plaintiff apparently seeks the document to discover what
information has not been released to the public, not merely the
information that matches what was previously disclosed. Plaintiff
is not entitled to reconsideration on this ground.
6. Next, Plaintiff argues that the Court “misconstrued
Kornmeir’s [sic] statement” to conclude that Document 2 on the
Vaughn index, dated January 12, 2007, is the executed agreement
with Mr. Raju that Plaintiff seeks. (Pl. Mot. Br. at 5.)
Plaintiff maintains that he seeks a document from June 2007.
(Id.) The Court previously addressed this apparent confusion. Mr.
John W. Kornmeier, an attorney advisor with the Executive Office
for United States Attorneys, explained in a declaration that
“[a]n examination of the document shows that although the date of
the document, an offer contained in a letter, is January 12,
2007, the date of the acceptance of the offer is not until June
2007.” Venkataram, 2013 WL 3871730, at *4. The Court also noted
that agency affidavits are entitled to a presumption of good
faith. Id. (citing Negley v. FBI, 169 F. App’x 591, 594 (D.C.
Cir. 2006). Plaintiff reanimates his argument that the agreement
with Mr. Raju was not described in the Vaughn index, but the
Court has addressed this point, accepting Defendant’s explanation
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that the agreement appears as Document 2 and noting the absence
of any evidence creating a genuine dispute of material fact.
Venkataram, 2013 WL 3871730, at *4. Plaintiff is not entitled to
reconsideration on this ground.
7. Finally, Plaintiff argues that the Court “mistakenly or
inadvertently misapplied the standard used to determine the
privacy interest of an individual (Raju) who has been formally
indicted but never prosecuted . . . .” (Pl. Mot. Br. at 5-6.) In
essence, Plaintiff disagrees with the Court’s assessment and
balancing of privacy and public interests at stake. (See Pl. Mot.
Br. at 5-9.) The Court assessed and weighed these interests at
considerable length in its previous Opinion, Venkataram, 2012 WL
3871730, at *9-*14, and will not revisit this determination based
on Plaintiff’s preferred readings of precedent. Just because
Plaintiff, as a self-interested party, may have weighed the
interests differently does not mean that the Court committed a
clear error of law.
8. Plaintiff having presented no valid grounds for
reconsideration of the Court’s previous Opinion and Order, the
motion for reconsideration is denied. An accompanying Order will
be entered.
October 16, 2013
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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