UNITED STATES OF AMERICA v. BALICE et al
OPINION AND ORDER denying 212 Motion for Reconsideration and 214 Objection. Signed by Judge Kevin McNulty on 8/30/2017. (ld, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civ. No. 14-3937 (KM)(JBC)
Before the Court is the motion (ECF no. 212) of the plaintiff, Michael
Balice, for reconsideration of the Court’s Opinion (ECF no. 210) and Order
(ECF no. 211) granting the Motion of the United States for Summary Judgment
as to Counts 1, 111, V, and VI, without reaching Count IV, and denying Mr.
Balice’s Motion to Strike. The United States has submitted a brief in opposition
(ECF no. 213), and Mr. Balice has submitted an objection and reply (ECF nos.
214, 215). This motion for reconsideration is thus fully briefed and ripe for
Local Rule 7.1(i) governs motions for reconsideration. Such a motion
must specifically identify “the matter or controlling decisions which the party
believes the Judge or Magistrate Judge has overlooked.” Id. Reconsideration is
granted sparingly, generally only in one of three situations: (1) when there has
been an intervening change in the law; (2) when new evidence has become
available; or (3) when necessary to correct a clear error of law or to prevent
manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d
1194, 1218 (3d Cir. 1995); Carmichael v. Everson, 2004 WL 1587894 (D.N.J.
May 21, 2004). “A motion for reconsideration is improper when it is used ‘to
ask the Court to rethink what it had already thought through
wrongly.”’ OHtani Say. & Loan Ass’n v. Fidelity & Deposit Co., 744 F. Supp.
1311, 1314 (D.N.J. 1990) (quoting Above the Belt v. Mel Bohannan Roofing, Inc.,
99 F.R.D. 99, 101 (ED. Va. 1983)). Evidence or arguments that were available
at the time of the original decision will not support a motion for
reconsideration. Damiano a Sony Music Entm’t, Inc., 975 F. Supp. 623, 636
(D.N.J. 1997); see also North River Ins. Co., 52 F.3d at 1218; Bapu Corp. a
Choice Hotels Int’l, Inc., 2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing
P. Schoenfeld Asset Mgmt. LLC a Cendant Corp., 161 F. Supp. 2d 349, 352
This motion meets none of those requirements. It simply rehashes
grounds repeatedly raised and rejected in this action. Essentially, Mr. Balice
again claims that the Court lacks subject matter jurisdiction over this entire
action, based on the plaintiffs interpretation—rejection, really—of the
Sixteenth Amendment to the U.S. Constitution and his contention that the
income tax is unconstitutional. Examples of my prior discussion and rejection
of this argument may be found, for example, on the docket of this action at
ECF no, 71 (Opinion at 19—20). In response, Balice sought a writ of mandamus
from the United States Court of Appeals for the Third Circuit. The Court of
Appeals held, inter alia, that Mr. Balice had failed to show that the district
court’s lack of jurisdiction was so clear and indisputable as to justify
mandamus relief; “To the contrary, as we explained recently in dismissing a
previous appeal brought by Balice, he presents ‘the type of tax-protester
have long been rejected as frivolous.”’ In re Balice, CA. No.
16-1242, 644 F. App’x 112, 113 (3d Cir. March 11, 2016) (quoting Balice a
Commr, C.A. No. 15—2366, 634 Fed.Appx. 349, 350, 2016 WL 456634, at *2
(3d Cir. Feb. 5, 2016)).
There is no argument in this motion for reconsideration that was not or
could not have been asserted previously. No new evidence is proffered. And
there is no indication of even a minimally meritorious contention, let alone a
showing of clear error or manifest injustice.
Mr. Balice additionally objects (ECF no. 214) to the Court’s failure to hold
a hearing in open court on his jurisdictional contentions. No hearing is
necessary, because these contentions are facially inadequate as a matter of
law. I have disposed of the motions without an oral hearing because Mr.
Balice’s papers present no legal issues as to which oral argument would be
helpful. See generally Fed. R. Civ. P.78; D.N.J. Local Civ. R. 78.1.
Accordingly, IT IS this
day of August, 2017
ORDERED that the plaintiff’s motion and objection (ECF nos. 212, 214)
United States District Judge
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