McMahon v. Napolitano et al

Filing 102

ORDER. For the reasons stated in the attached Order, plaintiff's motions for reconsideration are denied. Ordered by Judge Kiyo A. Matsumoto on 4/1/2016. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
JOYCE A. McMAHON,
ORDER
Plaintiff,

12-cv-5878 (KAM)(RML)
13-cv-1404 (KAM)(RML)

-againstJEH JOHNSON, Secretary, U.S. Department
of Homeland Security

Defendant.
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MATSUMOTO, United States District Judge:
Plaintiff Joyce A. McMahon (“plaintiff” or “Ms.
McMahon”) commenced two actions against Jeh Johnson1, the
Secretary of the Department of Homeland Security (“DHS” or
“defendant” or the “agency”), alleging that defendant
discriminated against her on the basis of her race, color,
national origin, sex, and age and then retaliated against
plaintiff for her complaint to the agency’s Equal Opportunity
Office (“EEO”) in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”) and the
Age Discrimination and Employment Act (“ADEA”) of 1967, 29
U.S.C. §§ 621-634.
On January 20, 2016, the court issued orders adopting
Judge Levy’s Report and Recommendations (“R&R”) in plaintiff’s
1

Pursuant to Federal Rule of Civil Procedure 25(d), Jeh Johnson, Secretary of
the U.S. Department of Homeland Security, is automatically substituted for
the originally named defendant Secretary of Homeland Security.

respective cases.
1404.)

(ECF No. 86, 12-cv-5878; ECF No. 63, 13-cv-

On the same day, the court also denied plaintiff’s

motion to disqualify Judge Matsumoto and denied plaintiff’s
request for Judge Levy’s recusal in her objections to the R&Rs.
(ECF No. 87, 12-cv-5878; ECF No. 64, 13-cv-1404.)

The court

also denied plaintiff’s motions for pre motion conferences as
moot.
Plaintiff filed as motions for reconsideration
identical letters in both cases on February 3, 2016 that were
dated February 2, 2015.
13-cv-1404.)

(ECF No. 88, 12-cv-5878; ECF No. 65,

The letter noted that plaintiff “will be moving

for Reconsideration on all three of your orders on each case”
and “will simultaneously be filing Appeals with the New York
Court of Appeals.”

Plaintiff then posed the following question

to the court in her letter: “Is it correct that I have 30 days
from January 20th to move for Reconsideration and 60 days to file
my appeals?”

On February 3, 2016, the court terminated the

motions for reconsideration, noting that the court cannot
provide legal advice and instructing plaintiff to consult the
Local Rules for the Eastern District of New York, the Federal
Rules of Civil Procedure, and the Federal Rules of Appellate
Procedure.

Plaintiff requested extensions of time to file her

motions for reconsideration in two letters, the first dated
February 16, 2016 and filed on February 17, 2016, and the second

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dated and filed on March 2, 2016.

(ECF Nos. 92 and 93, 12-cv-

5878; ECF Nos. 67 and 71, 13-cv-1404.)

The court granted

plaintiff’s requests for extensions.
Pending before the court are plaintiff’s six motions
for reconsideration filed on March 4, 2016.
12-cv-5878; ECF Nos. 72-74, 13-cv-1404.)

(ECF Nos. 99-101,

Plaintiff filed

interlocutory appeals of the court’s orders on March 1, 2016.
(ECF Nos. 94-96, 12-cv-5878; ECF Nos. 68-70, 13-cv-1404.)
Preliminarily, the court must address the question of
whether it has jurisdiction to consider plaintiff’s motions for
reconsideration notwithstanding the fact that she filed notices
of appeal on March 1, 2016.

Pursuant to Federal Rule of

Appellate Procedure 4(a)(4)(B)(i):
If a party files a notice of appeal after the court
announces or enters a judgment—but before it
disposes of any motion listed in Rule 4(a)(4)(A)—
the notice becomes effective to appeal a judgment
or order, in whole or in part, when the order
disposing of the last such remaining motion is
entered.
As an initial matter, the court notes that the court
has not entered judgment in this case, because the court’s
orders that are the subjects of plaintiff’s motions for
reconsideration did not dispose of the cases and are not final.
Although plaintiff filed her motions for reconsideration on
March 4, 2016, after filing her notices of appeal on March 1,
2016, the court nonetheless construes plaintiff’s letters filed

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on February 3, 2016, which provided notice that plaintiff
intended to file motions for reconsideration, as the date on
which she filed her motion for reconsideration.

Consequently,

the court proceeds to decide the motions for reconsideration on
their merits.

See, e.g., Dama v. Seirup, 96-cv-2557, 2008 WL

1957772, at *1 (E.D.N.Y. May 2, 2008).
Local Civil Rule 6.32 of the United States District
Court for the Eastern District of New York permits a party to
move for reconsideration based on “matters or controlling
decisions which counsel believes the Court has overlooked.”
Local Civ. R. 6.3. “The standard for granting such a motion is
strict, and reconsideration will generally be denied 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.”

Mahadeo v. New York City Campaign Fin. Bd., 514 F.

App'x 53, 55 (2d Cir. 2013) (quoting Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Here, plaintiff’s motions for reconsideration have
failed to meet the strict standard meriting reconsideration; she
has pointed to no controlling decisions or data that the court

2

The Second Circuit has held that a plaintiff’s motion for reconsideration
pursuant to Local Rule 6.3 qualifies as a motion under Federal Rule of
Appellate Procedure 4(a)(4)(A) for purposes of determining when a notice of
appeal becomes effective. See Hertzner v. Henderson, 292 F.3d 302, 303 (2d
Cir. 2002).

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has overlooked.

Consequently, plaintiff’s motions for

reconsideration are denied.

SO ORDERED.

Dated:

April 1, 2016
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

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