Heriveaux v. Federal Government

Filing 9

MEMORANDUM AND ORDER, Accordingly, pltff's motion for reconsideration under Rule 59(e) is denied. The Court certifies pursuant to 28 USC sec. 1915(A)(3) that any appeal would not be taken in good faith and therefore IFP status is denied for the purpose of any appeal. The case will remain on the Court's docket of closed cases. (Ordered by Judge Eric N. Vitaliano on 2/24/2015) c/m (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MAGALY E. HERIVEAUX,

MEMORANDUM AND ORDER
14-CV-7105 (ENV)

Plaintiff,
-againstFEDERAL GOVERNMENT,
Defendant.

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VITALIANO, United States District Judge.

Plaintiff Magaly E. Heriveaux, filed this prose action on December 2, 2014.
By Memorandum and Order, dated December 11, 2014, the Court dismissed the
complaint without prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B), and, in an
abundance of caution, granted plaintiff 30 days leave to file an amended complaint
that complied with Rule S(a) of the Federal Rules of Civil Procedure. On January 9,
2015, plaintiff filed a document entitled "Amended/Affirmation," which the Court
liberally construed as plaintiff's amended complaint. But that amended complaint
failed to cure the deficiencies the Court discussed in its December 11, 2014
Memorandum and Order; nor did it include allegations of facts establishing federal
jurisdiction. Therefore, on February 2, 2015, the Court entered judgment
dismissing the action with prejudice. Almost two weeks later, on February 13, 2015,
the Court received a letter from plaintiff requesting that her case remain "active."
The Court liberally construes Heriveaux's submission as a motion to reconsider and
vacate the judgment, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure
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("Motion for Reconsideration"). For the reasons set forth below, plaintiff's motion
for reconsideration and to restore her action to active status is denied.
Discussion
A motion for reconsideration of a court's civil judgment is permitted under
Rule 59(e), which authorizes a party to file a motion to alter or amend the judgment
within 28 days after entry of judgment. Fed. R. Civ. P. 59(e). The standard for
granting a motion to reconsider a judgment "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." Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations

omitted);~

also Lesch v. United

States, 372 Fed.Appx. 182, 183 (2d Cir. 2010) (same) (quoting Shrader, 70 F.3d at
257); Smith v. Schweiloch, No. 12-CV-3253, 2012 WL 2277687, at *1 (S.D.N.Y.
June 18, 2012) ("The moving party is required to demonstrate that 'the Court []
overlooked controlling decisions or factual matters that were put before it on the
underlying motion, and which, had they been considered, might have reasonably
altered the result before the court.'") (alteration in original) (quoting Vincent v.
Money Store, No. 03-CV-2876, 2011 WL 5977812, at *1 (S.D.N.Y. Nov. 29, 2011));
Rule 6.3 of the Local Rules of the United States District Courts for the Southern and
Eastern Districts of New York (requiring the moving party to "set[ ] forth concisely
the matters or controlling decisions which counsel believes the Court has
overlooked").
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It is "well-settled" that a motion 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."' Analytical Surveys,
Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (internal citation
omitted). Thus, "[r]econsideration of a court's previous order is an extraordinary
remedy to be employed sparingly in the interests of finality and conservation of
scarce judicial resources." Hidalgo v. New York, No. 11-CV-5074, 2012 WL
3598878, at *1 (E.D.N.Y. Aug. 20, 2012) (citation and internal quotation marks
omitted).
Plaintiff's Rule 59(e) motion for reconsideration fails to point to any
authority or evidence that the Court overlooked in dismissing her action. To the
contrary, plaintiff's submission contains nonsensical statements concerning threats
and actions that have allegedly been made against her. For instance, plaintiff states
that
Monday, January 26, 2015 was the monetary deadline for everyone to
desist all activities, so that I can advocate to get my Abatement Order
in writing. Instead of this happening, I place a call at 3:40am on
Tuesday, January 27, 2015, to have the police come to my home, due to
technological abuse. They arrived and I reported that someone was
sexually abusing their authority through the use of the portal, while I
was in my sleep (i.e. trance).
Motion for Reconsideration at 2. As plaintiff's motion does not contain any
meaningful or substantive reason to reopen the case, the motion is denied.

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Conclusion
Accordingly, plaintiff's motion for reconsideration under Rule 59(e) is
denied.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore IFP status is denied for the purpose of any
appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The case will remain on the Court's docket of closed cases.

/]

So Ordered.

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/t; usw v1r~11.tti-iv_

ERIC N. VITALIANO
United States District Court

Dated: Brooklyn, New York
February 24, 2015

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