Dechbery v. New York City Fire Department

Filing 42

ORDER. Plaintiff's motion for reconsideration 38 is DENIED. Plaintiff is, however, granted one last opportunity to file an amended complaint on or before January 4, 2016, or her action will be dismissed in its entirety. Barring extraordinary c ircumstances, no extensions will be permitted. Plaintiff's amended complaint, if any, must comply with the court's 8/14/15 Order. The Clerk of Court is respectfully directed to serve a copy of this order on plaintiff and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 12/22/2015. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------x
EILEEN DECHBERRY,
Plaintiff,
MEMORANDUM AND ORDER
-against14-CV-2130 (KAM)(SMG)
NEW YORK CITY FIRE DEPARTMENT,
Defendant.
---------------------------------------x
MATSUMOTO, United States District Judge:
Plaintiff Eileen Dechberry (“plaintiff”) commenced this
action, pro se, on April 2, 2014, against defendant, the New York
City Fire Department (“FDNY” or “Defendant”) pursuant to Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e,
et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§
12101, et seq., and the New York City Human Rights Law (“NYCHRL”).
Plaintiff alleged employment discrimination on the basis of gender
and disability, and that her employment was terminated without due
process.

Specifically,

plaintiff

alleged

that

she

suffered

discrimination, retaliation, and a hostile work environment due to
her gender and disability. (ECF No. 1, Complaint (“Compl.”) ¶¶ 47.)
On August 14, 2015, this court dismissed with prejudice
plaintiff’s

Title

VII,

ADA,

and

NYCHRL

discrimination,

retaliation, and hostile work environment claims that predated
August 21, 2012, because they were time-barred or included in a

1

settlement agreement dated July 13, 2012 in plaintiff’s prior
federal lawsuit before Judge Jack B. Weinstein (Dechberry v. City
of New York et al., No. 11-CV-2767 (JBW)). (ECF No. 31, Memorandum
and Order dated August 14, 2015 (“8/14/15 Order”) at 65.)

The

remaining claims were dismissed without prejudice for failure to
state

a

claim.

(Id.)

However,

plaintiff

was

permitted

an

opportunity to amend her complaint within 14 days of the court’s
8/14/15 Order with respect to her Title VII discrimination, ADA
discrimination, retaliation, and hostile work environment claims
that were not barred by her prior settlement or the statute of
limitations. (Id. at 65-66.)
The court subsequently granted plaintiff two extensions
of time to file an amended complaint. (See orders dated 8/25/14
and 10/2/15.) The latter order directed plaintiff to file her
amended complaint by October 23, 2015. Each of the aforementioned
orders clearly indicated that plaintiff’s failure to file her
amended complaint would result in the dismissal of her complaint.
(See 8/14/15 Order as well as orders dated 8/25/15 and 10/2/15.)
Plaintiff did not file her amended complaint by October 23, 2015,
but

instead

filed

two

motions

on

October

22,

2015,

seeking

reconsideration of the court’s 8/14/15 Order and to extend her
time to file an amended complaint until after the court decided
plaintiff’s 10/22/15 motion for reconsideration. (ECF Nos. 37,
38.)
2

Pending before this court is plaintiff’s motion for
reconsideration based on purportedly new evidence concerning an
unrelated disciplinary proceeding that resulted in the temporary
disbarment of the attorney who represented plaintiff in her earlier
lawsuit. (See ECF No. 38, Motion for Reconsideration (“Pl. Mot.”).)
Defendant
Response

has
in

filed

a

Opposition

responsive
to

Motion

letter
for

brief.

(ECF

Reconsideration

No.

41,

(“Def.

Resp.”).)
DISCUSSION
A.

Legal Standard
An order or other decision that “adjudicates fewer than

all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment.”
Fed. R. Civ. P. 54(b). The Second Circuit limits a district court’s
reconsideration of earlier decisions under Fed. R. Civ. P. 54(b)
by treating those decisions “as law of the case, which gives a
district court discretion to revisit earlier rulings in the same
case, subject to the caveat that where litigants have once battled
for the court’s decision, they should neither be required, nor
without good reason permitted, to battle for it again.” Official
Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers &
Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (internal quotation
marks and citation omitted).
3

The

principal

grounds

for

reconsideration

are

“an

intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest
injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992) (quoting 18B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 4478).
Under

Local

Rule

6.3,

“a

notice

of

motion

for

reconsideration or reargument of a court order determining a motion
shall be served within fourteen (14) days after the entry of the
Court’s determination of the original motion.” Plaintiff offers no
reason

for

her

tardy

motion,

but

the

court

will

nonetheless

consider the motion.
B.

Analysis
Plaintiff argues that a disciplinary proceeding against

her former attorney — which she claims came to her attention after
this court issued its 8/14/15 Order dismissing her claims with
leave to amend those claims for matters after August 21, 2012 if
they are not barred by the statute of limitations or the settlement
agreement — justifies reconsideration of the 8/14/15 Order. (Pl.
Mot. at 1-5.) Plaintiff challenges only that portion of the 8/14/15
Order that dismissed some of her claims as barred by the prior
settlement, reached while plaintiff was represented by her prior
attorney in the action before Judge Weinstein. (See 8/14/15 Order
at 14-15, 18-24.) Defendant argues that the settlement agreement
4

at issue has been repeatedly upheld by Judge Weinstein, in spite
of plaintiff’s allegations that her signature was forged and that
her former counsel in that case was disciplined. (See Def. Resp.
at 2.)
The disciplinary proceeding involving plaintiff’s former
counsel concerns Linda Cronin, who represented plaintiff in a
variety of legal proceedings, including her earlier lawsuit before
Judge Weinstein. (See 8/14/15 Order at 14-15; No. 11-cv-2767, ECF
No. 34, Official Transcript, at 26-27.) On July 22, 2015, Cronin
was suspended from the practice of law for one year. (Pl. Mot.,
Ex. C.) In the accompanying opinion issued by the New York Supreme
Court’s

Appellate

Division,

Cronin

was

held

responsible

for

concealing settlement proceeds (in an unrelated action) that her
firm was holding on behalf of a client from the New York State
Crime Victims Board, which had sought the funds on behalf of
victims of the client’s unrelated criminal activity. (Id.) Upon
consideration of the New York Supreme Court’s decision regarding
the suspension of Cronin, the Grievance Committee of the Eastern
District of New York suspended Cronin from the practice of law in
the Eastern District on August 5, 2015. (Pl. Mot., Ex. D; E.D.N.Y.
Local R. 1.5.)
As an initial matter, this evidence — both the July 22,
2015 Appellate Division suspension decision and the August 5, 2015
follow-on suspension in the Eastern District of New York — was
5

available to plaintiff before the court’s August 14, 2015 decision
issued.

It

is

therefore

not

clear

that

it

constitutes

“new

evidence” justifying reconsideration. See Virgin Atl. Airways, 956
F.2d at 1255. Giving the pro se plaintiff the benefit of the doubt,
the court will consider the evidence new for purposes of deciding
this motion for reconsideration.
Even assuming the evidence is new, the court concludes
that the motion is without merit. First, as Defendant correctly
points out (Def. Resp. at 2), Judge Weinstein has upheld the
validity of the settlement on three occasions, over plaintiff’s
objections that Cronin forged her signature, and has even provided
plaintiff

with

an

in-person

hearing

during

which

she

had

an

opportunity to cross-examine Cronin about the settlement. (See No.
No. 11-cv-2767, ECF Nos. 31, 33, 40.) Indeed, this very motion for
reconsideration was also directed to Judge Weinstein, who denied
it on November 16, 2015. (No. 11-cv-2767, ECF No. 40.) This court
is not inclined to second-guess Judge Weinstein’s determination
that the settlement was (and remains) binding.
Second, although the disciplinary determination against
Cronin may speak generally about her character, there is no direct
nexus

between

the

charges

sustained

against

Cronin

in

the

disciplinary proceeding and plaintiff’s allegations in this case.
Cronin was primarily accused of concealing assets from crime
victims in that proceeding. (See Pl. Mot., Ex. C, at 7.) There was
6

no

indication

that

she

had,

for

example,

forged

a

client’s

signature or improperly reached a settlement without consulting a
client. Neither is there any indication that the disciplinary
proceedings in the Appellate Division or in the Eastern District
of New York were in any way related to plaintiff’s allegations
against Cronin. (See Def. Resp. at 2; No. 11-cv-2767, ECF No. 39.)
CONCLUSION
Plaintiff’s

motion

for

reconsideration

is

therefore

DENIED. Although plaintiff sought leave for another extension to
amend her complaint, after being warned by the court that failure
to amend by a specified date would result in dismissal, she again
sought an extension only under the assumption that this court would
grant her motion for reconsideration and permit her to reassert
claims the court already concluded were barred by the settlement.
(See ECF No. 37, Letter Motion for An Extension of Time to File
Amended Complaint (“If the Court reconsiders and allows me to
assert [the claims barred by the settlement agreement], my Amended
Complaint will need to include them.”.) Plaintiff is granted one
last opportunity to file an amended complaint on or before January
4, 2016, or her action will be dismissed in its entirety. Barring
extraordinary circumstances, no extensions will be permitted.
Plaintiff’s amended complaint, if any, must comply with
the court’s 8/14/15 Order. The Clerk of Court is respectfully
directed to serve a copy of this order on plaintiff and note
7

service on the docket.

SO ORDERED.

________
__/s/____________
KIYO A. MATSUMOTO
United States District Judge
Dated: Brooklyn, New York
December 22, 2015

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