Doe v. National Conference of Bar Examiners et al
ORDER denying 30 Motion for Reconsideration: For the reasons stated in the attached memorandum and order, Plaintiff's 30 motion for reconsideration is denied. Ordered by Judge Pamela K. Chen on 5/25/2017. (Chivers, Jeffrey)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against -
MEMORANDUM & ORDER
NATIONAL CONFERENCE OF BAR
EXAMINERS, PENNY GESSLER, and
PAMELA K. CHEN, United States District Judge:
On January 6, 2017, the Court entered a Memorandum and Order (“Order”) dismissing
Plaintiff’s First Amended Complaint for lack of personal jurisdiction and denying Plaintiff’s
request to proceed under a pseudonym. Doe v. Nat’l Conf. of Bar Examiners, 2017 WL 74715
(E.D.N.Y. Jan. 6, 2017) (Dkt. 28). The Court entered final judgment on January 9, 2017,
dismissing the case in its entirety. (Dkt. 29.) On January 23, 2017, Plaintiff timely moved for
reconsideration under Local Civil Rule 6.3 and, presumably, under Federal Rule of Civil
Procedure (“FRCP”) 59(e). 1 (Dkt. 30.) Additionally, Plaintiff filed a Notice of Appeal on
February 3, 2017. (Dkt. 34.) 2
For the reasons set forth below, Plaintiff’s motion for
reconsideration is denied.
Plaintiff does not mention the Federal Rules of Civil Procedure in her motion, but the
Court construes her motion as a motion to alter or amend a judgment under FRCP 59(e). See In
re Gentiva Sec. Litig., 971 F. Supp. 2d 305, 332 (E.D.N.Y. 2013).
Plaintiff’s motion was timely under Local Civil Rule 6.3, having been received on
January 23, 2017, within fourteen days after the Court entered final judgment. Plaintiff also filed
a notice of appeal to the Second Circuit on February 3, 2017. (Dkt. 34 (Notice of Appeal).)
Nonetheless, the Court maintains jurisdiction over Plaintiff’s timely filed post-judgment motion
for reconsideration. See Fed. R. App. P. 4(a)(4)(A); Hodge ex rel. Skiff v. Hodge, 269 F.3d 155,
157 n.4 (2d Cir. 2001).
In the Order, 3 the Court found (i) Plaintiff’s use of a pseudonym was unwarranted because
she failed to demonstrate any valid interest in preserving her anonymity (Dkt. 28 (Order)
at ECF 5) 4 and, (ii) the Court lacks personal jurisdiction over the named defendants (id. at
ECF 12-19). With respect to the second issue, the Court found that it lacks general jurisdiction
over Defendants because none of them is “at home” in the State of New York (id. at ECF 12-13),
and that the Court lacks specific jurisdiction over Defendants because their sporadic contacts with
New York did not constitute “transact[ing] business” and Plaintiff’s claims did not “arise from”
any supposed business transactions in New York (id. at 18-19).
Plaintiff moves for reconsideration under Local Civil Rule 6.3, claiming that (i) despite
being a formerly licensed attorney, she should have been afforded the same deferential pleading
standard afforded generally to pro se litigants because she is not an “experienced” litigation
attorney, and (ii) the Court overlooked her valid interests in proceeding anonymously in this
litigation. (Dkt. 30-1 at ECF 7-8.) In response, Defendants argue that the Court did not overlook
any facts, data or controlling decisions in the Order, and that Plaintiff is merely reiterating the
same arguments she made in her opposition to Defendants’ motion to dismiss. (Dkt. 32 at ECF 3.)
Under Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3, a court may grant
reconsideration on the basis of an “intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel
The Court assumes the parties’ familiarity with the facts alleged in Plaintiff’s pleadings
and the procedural history of this action.
Citations to “ECF” refer to the pagination generated by the Court’s electronic docketing
system and not the document’s internal pagination.
Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (quotation marks
and citation omitted).
The standard for granting a reconsideration motion is “strict,” and
reconsideration generally will 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). “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), as amended (July 13, 2012) (quotations omitted). Furthermore,
arguments raised for the first time on reconsideration are not proper grounds for reconsideration.
See Image Processing Techs., LLC v. Canon Inc., 10 Civ. 3867, 2012 WL 253097, at *1 (E.D.N.Y.
Jan. 26, 2012) (“[A] party is not permitted to ‘advance new facts, issues or arguments not previously
presented to the Court’ on a motion for reconsideration.” (quoting Caribbean Trading & Fid. Corp.
v. Nigerian Nat’l Petrol. Corp., 948 F.2d 111, 115 (2d Cir. 1991))).
In her motion for reconsideration, Plaintiff does not identify any intervening change of
controlling law, or the availability of new evidence, that would warrant the Court’s reconsideration
of its order denying Plaintiff’s request to proceed anonymously and dismissing her complaint for
lack of personal jurisdiction. (See generally Dkt. 30-1.) Nor does Plaintiff identify any controlling
decisions that the Court overlooked in its prior order. (Id.) In other words, Plaintiff does not point
the Court to any ground for reconsideration under the strict standards of Local Civil Rule 6.3 and
Federal Rule of Civil Procedure 59(e). That failing alone is grounds to deny Plaintiff’s motion.
In light of Plaintiff’s pro se status, the Court will nonetheless consider the substance of
Plaintiff’s submission. With respect to the Court’s ruling that she is not entitled to proceed in this
litigation anonymously, Plaintiff acknowledges that the Court applied the correct multi-factor test
under Sealed Pl. v. Sealed Def., 537 F.3d 185, 190 (2d Cir. 2008), but contends that the Court
should have reached a different outcome given the reputational consequences Plaintiff might incur
as a result of bringing this lawsuit. (Dkt. 30-1 at ECF 9-11; see also Dkt. 28 (Order) at 4-7
(applying Sealed Pl. v. Sealed Def.).) Plaintiff also argues that the Court was mistaken in its
observation that, despite seeking to proceed anonymously in this action, Plaintiff revealed her true
name in numerous filings in State court. (Dkt. 30-1 at ECF 11.) Having considered Plaintiff’s
arguments, the Court finds no reason to reconsider its ruling that Plaintiff is not entitled to proceed
anonymously in this lawsuit. The reputational risks that Plaintiff seeks to avoid by proceeding
anonymously are the same reputational risks that any private litigant bears. See, e.g., Doe v. Delta
Airlines, Inc., 310 F.R.D. 222, 226 (S.D.N.Y. 2015). As the Court noted in the Order, Plaintiff’s
status as an attorney not only does not exempt her from the ordinary rule that civil plaintiffs must
disclose their identities, but, if anything, weighs in favor of disclosure. 5 (Dkt. 28 (Order) at 6-7.)
Put simply, as the Court explained in its Order, beyond the ordinary risk of reputational harm that
all civil litigants bear—which, on its own, clearly is not enough to proceed anonymously, see Delta
Airlines, 310 F.R.D. at 226 —Plaintiff does not point to any special circumstances entitling her to
proceed anonymously in this action.
With respect to the Court’s ruling that it lacks personal jurisdiction over Defendants,
Plaintiff does not identify any intervening change of law, new evidence, or clear error that would
warrant reconsideration. Indeed, Plaintiff’s motion is basically silent on the issue of jurisdiction,
focusing instead on the anonymity issue discussed above. (See Dkt. 30-1.) Construed generously,
This is so because attorneys obviously have to identify themselves when seeking
admission to a court and when filing public court documents, and because applicants to the New
York bar are required to disclose their involvement in litigation. (Dkt. 28 at 6-7.)
Plaintiff’s motion argues that the Court would have reached a different ruling had it construed
Plaintiff’s pro se complaint “liberally and . . . to raise the strongest arguments it suggests.”
(Dkt. 30-1 at ECF 7.) In this regard, Plaintiff appears to misunderstand the legal bases of the
Court’s ruling that it lacks personal jurisdiction over Defendants. As explained in the Order,
although the Court generally accepts a plaintiff’s allegations as true at the dismissal stage, “where
the defendant rebuts a plaintiff’s unsupported allegations with direct, highly specific testimonial
evidence regarding a fact essential to jurisdiction—and a plaintiff does not counter that evidence—
the allegation may be deemed refuted.” (Dkt. 28 at 8 (alterations and quotation marks omitted).)
Applying this rule, the Court considered Defendants’ testimony concerning personal jurisdiction,
which they submitted in the form of sworn affidavits, and found that the Court does not have
general or specific jurisdiction over any Defendant. (Dkt. 28 at 7-24.) As the Order makes clear,
the Court’s jurisdictional ruling did not turn on the precise degree of deference or liberal
construction owed to Plaintiff’s pleadings. (See id.) Rather, the Court’s ruling flowed directly
from the governing Supreme Court and New York law, as applied to the factual allegations of
Plaintiff’s pleadings, as supplemented and refuted by Defendants’ sworn declarations as they
related to jurisdiction. (See id.) Thus, Plaintiff’s arguments about the amount of deference that
her pleadings deserved based on her pro se status, including her discussion about her lack of
experience in commercial litigation, are beside the point and certainly do not justify
reconsideration. (Dkt. 30-1 at ECF 7-8.)
As explained in the Order, Defendants are not subject to general jurisdiction in New York
State because they were not headquartered, incorporated or “at home” in New York State.
(Dkt. 28 at 9-13.) Additionally, Defendants did not “purposefully avail” themselves of the
privileges of doing business in New York State as required to establish specific jurisdiction under
the State’s long-arm statute. New York Civil Practice Law and Rules (“CPLR”) § 302(a)(1);
Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381, 389 (E.D.N.Y. 2015). Nor did Plaintiff
demonstrate that the Court had specific jurisdiction under CPLR § 302(a)(1) because Plaintiff’s
claims do not “arise from” Defendants’ purported business transactions in the State. (Dkt. 28
at 19.) Plaintiff’s motion for reconsideration does not identify any intervening decision, new
evidence, overlooked controlling decision, or any other reason to reconsider these rulings.
For the reasons set forth above, the Court denies Plaintiff’s motion for reconsideration.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: May 25, 2017
Brooklyn, New York
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