Milan et al v. Wertheimer et al
Filing
14
MEMORANDUM AND ORDER denying 12 Motion for Reconsideration. Ordered by Judge Sandra L. Townes on 12/29/2014. Copy mailed to Crystal M. Milan. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------x
CRYSTAL M. MILAN,
Plaintiff,
-against-
MEMORANDUM AND ORDER
14-CV-2448 (SLT)
FRED WERTHEIMER, DENISE COSTANZA,
ZENOBIA PARKER; NEFREDIA COVINGTON;
and MARY DAVIS,
Defendants.
TOWNES, United States District Judge
IN CLERKS OFFICE
U.S. DISTRICT COURT EG.h
* DEC 3O201 *
BROOKLYt OrCE
On March 19, 2014, plaintiff Crystal M. Milan ("Plaintiff' or "Ms. Milan"), proceeding
pro Se, commenced this action in the United States District Court for the Southern District of
New York on behalf of herself and her four children. In mid-April 2014, this action was
transferred to this Court, which subsequently issued two opinions. The first—a memorandum
and order dated July 2, 2014, and entered July 3, 2014 (the "First M&O")—dismissed without
prejudice the claims brought by Plaintiff on behalf of her children, explained various defects in
the claims Plaintiff was raising on her own behalf, and granted her leave to file an amended
complaint. The second—Milan v. Wertheimer, No. 14-CV-2448 (SLT), 2014 WL 4370647
(E.D.N.Y. Sept. 2, 2014) (the "Second M&O")—dismissed Plaintiffs action altogether, noting
that her amended pleading failed to cure the deficiencies in the original complaint.
In a one-page letter dated September 10, 2014, and filed September 15, 2014, Plaintiff
now moves for reconsideration, essentially arguing that "some wrong has definitely been done"
by defendants and requesting, inter alia, "restitution" so "no one would ever have to experience
my nightmare again." For the reasons set forth below, Plaintiffs motion is denied.
BACKGROUND
The caption of the complaint which Plaintiff originally filed with the SDNY named
Plaintiff and her four children as plaintiffs and listed five defendants: Plaintiffs mother, Mary
Davis; two child-welfare workers, defendants Covington and Parker; and two law guardians,
defendants Kostanza (alk!a Costanza) and Wertheimer. However, the complaint did not explain
the basis for subject-matter jurisdiction other than to allege that there was "federal question"
jurisdiction, did not contain factual allegations with respect to all defendants, and was vague in
describing the relief which Plaintiff sought.
In the First M&O, the Court first noted that Plaintiff, as a non-lawyer, could not represent
her children. The Court then explained the defects in Plaintiffs own claims, noting, inter alia,
that 42 U.S.C. § 1983 might serve as a basis for federal jurisdiction, but that § 1983 claims can
only be brought against state actors. The Court also explained that a three-year statute of
limitations applied to § 1983 claims and warned that certain claims might be time-barred unless
Plaintiff could "allege some basis for tolling the ... statute of limitations." First M&O at 11. The
First M&O granted Plaintiff leave to amend the claims raised on her own behalf, but dismissed
without prejudice the claims that Plaintiff raised on behalf of her four children.
In early August 2014, Plaintiff filed five separate documents, each entitled "Amentment
[sic] Complaint." One document (the "Form") was a four-page form complaint, the caption of
which listed the same five defendants as the original complaint and listed Ms. Milan as the only
plaintiff. Another document (the "Addendum") elaborated on allegations contained in the
"Statement of Claim" section of the Form. The remaining three documents were copies of
documents previously filed in the action.
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In the Second M&O, the Court ruled that Plaintiff's submissions failed to cure the
deficiencies in the original complaint and dismissed the action. First, the Court held that Plaintiff
could not sue defendants Davis, Wertheimer, and Costanza under § 1983 because the allegations
in the complaint made it clear that they were not "state actors." The Court further held that the
§ 1983 claims against Parker appeared to be time-barred, and that the body of the Amended
Complaint contained no allegations concerning Covington. However, the Court also stated:
"[e]ven assuming that Plaintiff meant to name Covington as a defendant in the Amended
Complaint and to re-allege the facts and claims raised against Covington in the original
complaint, the acts attributed to Covington all occurred in 2004" and, therefore, were also timebarred.
On September 15, 2014, Plaintiff simultaneously filed a Notice of Appeal and a motion
for reconsideration. The motion consists of a single-page letter addressed to the Court and dated
September 10, 2014. At the start of that letter, Plaintiff apologizes for any procedural defects in
the amended pleading, stating that she assumed she was "suppose[d] to get a copy of my first
complaint from the Southern District, and add any additional complaints to another sheet."
Letter to Judge Sandra L. Townes from Crystal Milan dated Sept. 10, 2014. She then describes
the wrongs which have allegedly been done to her by defendants, and ends with an impassioned
plea for justice, asserting that "restitution" would discourage the defendants from subjecting
others to the same "nightmare." Id.
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DISCUSSION
Jurisdiction
Preliminarily, this Court must address the question of whether it has jurisdiction to
consider Plaintiff's motion for reconsideration notwithstanding the fact that she simultaneously
filed a notice of appeal. Prior to 1979, this question turned on whether the notice of appeal was
filed before the motion for reconsideration or vice versa. See Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58-59 (1982) ("Under pre-1979 procedures, a district court lacked
jurisdiction to entertain a motion to vacate, alter, or amend a judgment after a notice of appeal
was filed. ... [I]f the notice of appeal was filed after the motion to vacate, alter, or amend the
judgment{,] ... the district court retained jurisdiction to decide the motion ....). However, in 1979,
the Federal Rules of Appellate Procedure were amended to give district courts express authority
to entertain a timely motion for reconsideration, even after a notice of appeal had been filed. Id.
at 59 (citing Fed. R. App. P. 4(a)(4)). Specifically, Rule 4(a)(4)(B)(i) now provides:
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.
Among the motions listed in Rule 4(a)(4)(A) is a motion "under Rule 60 if the motion is filed no
later than 28 days after the judgment is entered." Fed. R. App. P. 4(a)(4)(A)(vi).
Plaintiff's motion does not mention the procedural rule under which it is brought, but
states that Plaintiff "wishes to file a motion to reconsider." In light of Plaintiff's pro se status,
this Court construes Plaintiff's submission to be a motion pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure, which provides that "[o]n motion and just terms, the court may relieve
El
a party or its legal representative from a final judgment, order, or proceeding" for any of six
reasons, including (6) any ... reason that justifies relief." Since Plaintiff's motion was filed on
September 15, 2014—only 13 days after the Second M&O and the judgment in this action were
filed—Plaintiff's notice of appeal is not yet effective and this Court has jurisdiction to consider
Plaintiff's motion for reconsideration. See Fed. R. App. P. 4(a)(4)(B)(i); Griggs, 459 U.S. at 59.
Reconsideration
The determination of whether to "grant or deny a motion for reconsideration lies squarely
within the discretion of the district court." Murphy v. First Reliance Std. Life Ins. Co., No. 08CV-3603 (DRH)(WDW), 2010 WL 2243356, at *3 (E.D.N.Y. June 1, 2010). However, a motion
for reconsideration "is generally not favored and is properly granted only upon a showing of
exceptional circumstances." Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004).
"[R]econsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked ... that might reasonably be expected to alter the
conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995);
see Local Civ. R. 6.3.
In this case, Plaintiff's motion for reconsideration does not cite to any authorities or point
to any facts which this Court may have overlooked. Specifically, Plaintiff does not allege any
facts or provide any authorities to suggest that defendants Davis, Wertheimer, and Costanza are
"state actors" who could be sued under § 1983. Similarly, Plaintiff does not allege any facts to
suggest a basis for tolling the three-year statute of limitations or a basis for equitable estoppel.
Moreover, Plaintiff does not suggest a basis for federal question jurisdiction other than 42
U.S.C. § 1983. Rather, Plaintiff principally argues that "some wrong has definitely been done in
5
[her] case" which demands "justice," and that "restitution" will deter the defendants from
subjecting other parents to the allegedly wrongful conduct that Plaintiff claims to have
experienced. Letter to Judge Sandra L. Townes from Crystal Milan dated Sept. 10, 2014. Even
assuming these arguments are correct, they do not make out a basis for reconsideration or alter
the Court's conclusion that Plaintiff's claims against defendants Wertheimer, Costanza, and
Davis fail to state a claim and that Plaintiff's claims against defendants Covington and Parker are
time-barred.
CONCLUSION
Ms. Milan's letter to the Court dated September 10, 2014, is construed as a motion for
reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. For the reasons
set forth above, that motion for reconsideration is denied.
SO ORDERED.
LLJ7'W4ZVVk
' SANDRA L. TOWNES
United States District Judge
Dated: December 29, 2014
Brooklyn, New York
on
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