SCHWARTZ et al v. NUGENT et al
Filing
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MEMORANDUM ORDER Granting 15 Application to Proceed IFP and Denying 26 Motion for Reconsideration. This action is STAYED for an additional 60 days. Signed by Judge Freda L. Wolfson on 1/10/2019. (km)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
STEVEN SCHWARTZ et al.,
:
:
Plaintiffs,
:
Civ. No. 17-9133 (FLW) (TJB)
:
v.
:
:
DENNIS NUGENT et al.,
:
MEMORANDUM AND ORDER
:
Defendants.
:
_________________________________________ :
Plaintiff Steven Schwartz is a federal prisoner, incarcerated at FPC Schuylkill, in
Minersville, Pennsylvania, and plaintiff Ilene Schwartz is his mother (collectively, “Plaintiffs”).
Plaintiffs are proceeding pro se with a Complaint asserting a claim under 42 U.S.C. § 1983 and
various claims under New Jersey law. (ECF No. 1.) Presently before the Court is a motion by
Steven Schwartz seeking reconsideration of this Court’s Opinion and Order of June 21, 2018,
which denied his motion to enjoin a parallel state court proceeding and transfer that proceeding
to this Court.1 (ECF No. 26.)
Motions for reconsideration are permitted under Local Civil Rule 7.1(i), but
reconsideration is considered an extraordinary remedy and is granted only sparingly. See Buzz
Bee Toys, Inc. v. Swimways Corp., 20 F. Supp. 3d 483, 515 (D.N.J. 2014); Andreyko v. Sunrise
Senior Living, Inc., 993 F. Supp. 2d 475, 477 (D.N.J. 2014). A party seeking reconsideration
must “set[] forth concisely the matter or controlling decisions which the party believes the Judge
. . . has overlooked.” L. Civ. R. 7.1(i). Motions for reconsideration are not intended as
opportunities to reargue old matters or raise issues that could have been raised previously. See
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That Opinion and Order also granted a request by Steven Schwartz to stay this proceeding, and
a stay was granted for a period of 60 days. (See ECF Nos. 23 & 24.)
Andreyko, 993 F. Supp. 2d at 477–78; P. Schoenfeld Asset Mgm’t LLC v. Cendant Corp., 161 F.
Supp. 2d 349, 352 (D.N.J. 2001). Thus, the movant has the burden of demonstrating one of three
bases for reconsideration: “(1) an intervening change in the controlling law; (2) the availability
of new evidence that was not available when the court [rendered its original decision]; or (3) the
need to correct a clear error of law or fact or to prevent a manifest injustice.” Max’s Seafood
Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
Steven Schwartz does not identify any change in law or newly available evidence, and
the Court construes his motion as alleging a clear error of law or fact. He first asserts that this
Court erred by finding that the portion of his motion seeking appointment of pro bono counsel
had already been adjudicated by Magistrate Judge Tonianne J. Bongiovonni’s April 3, 2018
Letter Order. (ECF No. 26 ¶¶ 1–6.) Steven Schwartz argues that Judge Bongiovonni “did not
adjudicate Plaintiff’s motion for pro bono counsel,” and he urges that he should now be
appointed counsel. (Id.)
This argument is incorrect. Magistrate Judge Bongiovonni explicitly stated that Steven
Schwartz’s application for pro bono counsel was “DENIED WITHOUT PREJUDICE.” (ECF
No. 22.) It appears that Steven Schwartz may have misunderstood this Court’s prior Opinion
and Order as holding that the issue of pro bono counsel was conclusively resolved and could
never be revisited. (See ECF No. 26 ¶ 5.) That was not this Court’s holding. The simple
conclusion of the Court in its prior Opinion and Order was that no active request for pro bono
counsel could be considered as pending before the Court at that time. If Steven Schwartz
properly files another motion for appointment of pro bono counsel, that motion will be
considered on its merits. As this Memorandum and Order grants his outstanding application to
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proceed in forma pauperis, that issue will no longer pose a hurdle to deciding a motion for
appointment of pro bono counsel.
Steven Schwartz then argues that the Court should reconsider its denial of his motion to
enjoin the parallel state court proceeding. He argues that his commencement of that proceeding
should not be considered voluntary because he “stay[ed] out of federal court fearing retaliatory
actions by those who control his custody.” (Id. ¶¶ 7–14.) Steven Schwartz again argues that the
state-court proceeding should be stayed to serve the interests of justice and because he needs to
obtain legal representation for both that case and this one. (Id. ¶ 15–30.)
The Court’s previously denied Steven Schwartz’s request for an order staying the statecourt proceeding, because such an order is barred by the Anti-Injunction Act unless it expressly
authorized by statute or if it is necessary to prevent a state court from interfering with a federal
court’s jurisdiction or with the effect of a federal court’s previously issued judgment. (ECF No.
23 at 5–7.) Steven Schwartz’s arguments in favor of reconsideration do not identify any error in
this analysis. That Steven Schwartz does not feel that his commencement of an action in state
court was totally voluntary does not affect the analysis under the Anti-Injunction Act; indeed,
that rule applies even (or especially) when it is the defendant (almost always a truly involuntary
litigant) who seeks the injunction. See Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 142–151
(1988) (reversing as overly broad federal injunction issued staying state proceeding at request of
defendants therein). Accordingly, the motion for reconsideration is denied.
The Court also takes this opportunity to resolve Steven Schwartz’s unresolved
application to proceed in forma pauperis. The Court had denied without prejudice an initial
application to proceed in forma pauperis as submitted on an improper form and had directed the
clerk to send the proper in forma pauperis forms to both Steven Schwartz and his co-plaintiff,
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Ilene Schwartz. (ECF No. 10.) Steven Schwartz subsequently submitted a new in forma
pauperis application on the proper form. 2 (ECF No. 15.) Having examined that application,
leave to proceed in this Court in forma pauperis is authorized as to Steven Schwartz. See 28
U.S.C. § 1915.
The Court further notes that Ilene Schwartz recently contacted chambers to report that
Plaintiffs may be close to retaining counsel to represent them in this matter. Accordingly, the
Court will extend the stay of this matter to permit Plaintiffs an opportunity to retain counsel and
for any such counsel to become familiarized with the case and determine a proper course of
action. Particularly, the Court notes that, if any retained counsel would like an opportunity to
file an opposition to Defendants’ unresolved motions to dismiss the proceeding, an application
for this opportunity should be filed as soon as practicable. The Court will thus stay the action for
another 60 days to permit Plaintiffs to pursue this option.
Therefore, IT IS, on this 10th day of January 2019,
ORDERED that Steven Schwartz’s motion for reconsideration of the Court’s denial of
his motion to stay the parallel state-court proceedings, (ECF No. 26), is DENIED; there is
presently no basis for this Court to enjoin the state-court proceedings, and that court may proceed
with the parallel action accordingly; and it is further
ORDERED that plaintiff Steven Schwartz’s application to proceed in forma pauperis,
(ECF No. 15), is hereby GRANTED; and it is further
ORDERED that this action is STAYED for an additional 60 days to permit Plaintiffs time
to retain counsel; and it is further
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The Court has not received any in forma pauperis application from plaintiff Ilene Schwartz.
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ORDERED that the Clerk shall serve copies of this Memorandum and Order upon
Plaintiffs by regular U.S. mail.
/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
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