Andrew Hango v. George Atkinson,et al

Filing 209

MEMORANDUM & ORDER denying Plaintiff's 201 Motion for Reconsideration. The Clerk of Court is respectfully DIRECTED to mail a copy of this order by certified mail, return receipt requested, to pro se Plaintiff Andrew Hango at his address of record. So Ordered by Judge Nicholas G. Garaufis on 5/13/2019. (c/m to pro se, certified mail receipt no. 7018 3090 0000 7858 2516) (Lee, Tiffeny)

P/V
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

ANDREW HANGO,
Plaintiff,
MEMORANDUM & ORDER

-against08-CV-3970(NGG)
(JO)

>

GEORGE ATKINSON et al.,
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

On March 18, 2005,Plaintiff was granted in forma pauperis status in connection with this
action. (Mar. 18, 2005 Order(Dkt. 14).) Plaintiff then proceeded to trial, during which he was
represented by pro bono counsel from the law firm Dechert LLP. (See Order Appointing Pro
Bono Counsel(Dkt. 41).) On February 23, 2010, after a two-day jury trial before Judge Tucker

L. Melancon,^ the jury found in favor of Defendants George Atkinson and Lawrence Marcus,
and the court entered judgment oh the same day. (J.(Dkt. 163).)

Plaintiff, now represented by counsel from the law firm Dai & Associates, P.O., appealed

from the jury verdict. (See Notice of Civil Appeal, Hango v. RovalL 466 F. App'x 30(2d Cir.
2012)(Dkt. 1); Mot.for Pro Se Status, Hango,466 F. App'x 30(Dkt. 44).) Seven months after

filing his appeal. Plaintiff terminated his representation and proceeded pro se. (Mot. for Pro Se
Status.) The Second Circuit affirmed the district court's judgment, Hango. 466 F. App'x 30
(summary order), and denied Plaintiffs application for rehearing en banc(Order, Hango.466 F.
App'x 30(Dkt. 146).) Plaintiff, still proceeding pro se. then retumed to the district court seeking
relieffrom the judgment pursuant to Rule 60(b)(3) ofthe Federal Rules of Civil Procedure,

^ This case was reassigned from Judge Melancon, who was visiting from the U.S. District Court for the Western
District of Louisiana, to the undersigned on June 28, 2017. (June 28,2017 Order Reassigning Case.)
1

which this court denied as untimely on June 1, 2018 (the "June 1 Order"). (Mot. for Relieffrom
J.(Dkt. 171); June 1,2018 Order(Dkt. 191).) On Jxme 14, 2018, Plaintiff noted his appeal from
the June 1 Order. (Notice of Appeal(Dkt. 192).)

Throughout this whole time. Plaintiff retained his in forma pauperis status. On June 18,

2018, Defendants filed a letter motion requesting that the court revoke plaintiffs in forma
pauperis status for purposes of his appeal ofthe June 1 Order. (Defs. June 18, 2018 Letter(Dkt.
194).) Plaintifffiled a response in opposition to Defendants' request. (PI. June 27,2018, Letter
(Dkt. 197).) On September 11, 2018,the court granted Defendants motion and revoked

'

Plaintiffs in forma pauperis status, namely because Plaintiff"failed to show that his appeal

would not simply raise the same issues that the court has deemed to be frivolous." (Sept. 11,
2018 Order (the "Sept. 11 Order")(Dkt. 200).)
On September 26, 2018,Plaintifffiled a motion to reconsider this court's September 11,
2018 Order. (Mot. for Recon.("Mot.")(Dkt. 201).) On November 1, 2018, Defendants filed a
\

response in opposition to Plaintiffs motion. (Defs. Resp.(Dkt. 205).) On November 16, 2018,
Plaintiff filed a reply to Defendants response. (PI. Reply(Dkt. 207).)
For the reasons provided below, the court DENIES Plaintiffs motion to reconsider its
September 11, 2018 Order. Accordingly, Plaintiffs in forma pauperis status remains

REVOKED for purposes of his appeal from the June 1 Order.
I.

LEGAL STANDARD

"Reconsideration of a court's previous order is an 'extraordinary remedy to be employed
sparingly in the interests offmality and conservation of scarce judicial resources.'" Montanile v.
Nat'l Broad. Co.. 216 F. Supp. 2d 341, 342(S.D.N.Y. 2002)(quoting In re Health Mgmt. Svs.
Inc. Sec. Litig.. 113 F. Supp. 2d 613,614(S.D.N.Y. 2000)). Local Rule 6.3, which governs

motions for reconsideration, is intended to '"ensure the finality of decisions and to prevent the

practice of a losing party... plugging the gaps of a lost motion with additional matters.'" S.E.C.
V. Ashburv Capital Partners. No. OO-CV-7898(RCC),2001 WL 604044, at *1 (S.D.N.Y. May

31, 2001)Cquoting Carolco Pictures. Inc. v. Sirota. 700 F. Supp. 169,170(S.D.N.Y. 1988)). The
provision for reconsideration "is not a vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the

apple." Analvtical Survevs, Inc. v. Tonga Partners. L.P.. 684 F.Sd 36,52(2d Cir. 2012)(citation
and internal quotation marks omitted).

A motion for reconsideration is not granted "unless the moving party can point to
controlling decisions or data that the court overlooked—^matters,in other words, that might
reasonably be expected to alter the conclusion reached by the court." Sbrader v. CSX Transp..

Inc.. 70 F.3d 255,257(2d Cir. 1995). ^Rollins v. N.Y. State Div. ofParole. 03-CV-5952
(NGG),2007 WL 539158, at *2(E.D.N.Y. Feb. 16, 2007)("A motion for reconsideration may
be granted only if a court overlooked (1)factual matters that were put before it on the underlying
motion or(2)controlling legal authority."),
m.

DISCUSSION

Plaintiff's motion for reconsideration ofthis court's September 11,2018 Order fails to
identify any factual matters or controlling legal authority that this court overlooked in its

decision. (See Mot.) The motion primarily states its disagreement with the September 11, 2018
Order without pointing to or presenting new facts, evidence, or intervening legal authority in
support ofits position that the court overlooked. (Id.) Indeed, the authority to which the motion

cites was already considered by this court or is not intervening law compelling a contrary
conclusion.^

Accordingly, the court finds that Plaintiff has failed to present"an intervening change in
controlling law, the availability of new evidence, or the need to correct a clear error or prevent

manifest injustice" sufficient to warrant reconsideration ofthe September 11, 2018 Order. See
Local Civil Rule 6.3. See also Leidig v. BuzzFeed. Inc.. 258 F. Supp. 3d 397,400(S.D.N.Y.
2017)(finding that a motion for reconsideration failed on the merits because plaintiff did not
present additional evidence or intervening law); Anwar v. Fairfield Greenwich Ltd.. 164 F. Supp.
3d 558, 561 (S.D.N.Y. 2016)(same). Plaintiffs motion is therefore denied.

in.

CONCLUSION

For the foregoing reasons. Plaintiffs motion for reconsideration(Dkt. 201)is DENIED.

The Clerk of Court is respectfully DIRECTED to mail a copy ofthis order by certified mail,
return receipt requested, to pro se Plaintiff Andrew Hango at his address ofrecord.

SO ORDERED

s/Nicholas G. Garaufis
Dated: Brooklyn, New York

NICHOLAS G. GARAl
GARAUFIS

May J[3, 2019

United States District Judge

^ Plaiotiff also argues that "the court dismissed the rule 60(b) motion solely because oftimeliness or lack
thereof ofthe motion and only mention in passing that it 'identifies no valid reasons, why reliefs fi
"om
judgment should be granted, it did not find any of Hango's claims fiivolous or malicious.'" (Mot. at 2.)
This is simply not true. In this court's September 11,2018 Order, the court found that,"Plaintiff has
additionally failed to show that his appeal would not simply raise the same issues that the court has
deemed to be frivolous." (Sept. 11 Order at 3.)