Hernandez v. John Doe
Filing
9
ORDER. As further provided in the annexed memorandum and order, the court denies plaintiff's Motion for Reconsideration 6 on the grounds that, even if plaintiff has properly applied for reconsideration, the court would not have jurisdiction to adjudicate plaintiff's purported state law claims. The Clerk of Court is respectfully directed to serve a copy of this order and the annexed memorandum and order to the pro se plaintiff at his last known address. Ordered by Judge Kiyo A. Matsumoto on 12/21/2016. (Grover, Vanish)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------X
ROBERTO HERNANDEZ,
Plaintiff,
MEMORANDUM AND ORDER
16-CV-2375 (KAM)(LB)
-againstJOHN DOE,
Defendant.
-------------------------------X
MATSUMOTO, United States District Judge:
On October 20, 2016, the plaintiff filed an “Order to
Show Cause for Relief” and “Affidavit/Affirmation,” requesting
that the court “amend the judgment.”
court
liberally
construes
this
(ECF No. 6 at 1.)
request
as
a
motion
The
for
reconsideration pursuant to Rule 60(b) of the Federal Rules of
Civil Procedure.
BACKGROUND
Plaintiff Roberto Hernandez filed this pro se action
on
May
9,
2016,
against
a
John
Doe
defendant
alleging
that
defendant committed identity theft upon plaintiff, and sought
relief from John Doe to pay all expenses caused by the identity
theft.
(ECF No. 1, Complaint (“Compl.”) at 6-7.)1
alleged
that
defendant
filed
a
false
tax
return
Plaintiff
claiming
plaintiff’s dependents and causing plaintiff to incur costs to
1
Because the electronic docket includes documents that are not paginated
sequentially, pin citations included herein refer to the electronic document
page number.
1
correct
the
harms
done
to
him,
complications of his diabetes.
Id.
along
with
anxiety
and
Plaintiff sought accountant
fees required to file correct returns, along with damages and an
injunction against defendant.
Id. at 7.
Plaintiff also noted
that he sought a subpoena under Federal Rule of Civil Procedure
45 in order to determine John Doe defendant’s identity.
8.
Id. at
By Memorandum and Order dated September 18, 2016, the court
granted
plaintiff’s
request
to
proceed
in
forma
pauperis
pursuant to 28 U.S.C. § 1915(a), but dismissed the action for
lack of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(h)(3) and 28 U.S.C. § 1915(e)(2)(B), because
plaintiff presented no valid basis for this court’s jurisdiction
over his claims. (ECF No. 4, Memorandum and Order at 4.)
Plaintiff’s
October
20,
2016,
submission
seeks
to
amend the judgment dismissing his case and leave to subpoena the
United States and an extension of time to appeal.
27,
2016,
November
the
21,
court
2016.
extended
On
plaintiff’s
November
2,
time
2016,
the
On October
to
appeal
court
to
granted
plaintiff until November 21, 2016 to provide a memorandum in
support
of
what
reconsideration.
documents
at
considering
the
the
court
Plaintiff
time
plaintiff’s
of
construed
has
this
motion,
to
not
be
filed
Memorandum
causes
his
of
motion
any
and
supporting
Order.
action,
for
After
and
the
record, the court denies plaintiff’s motion for reconsideration,
2
and finds that, even if the motion for reconsideration were
granted, plaintiff’s action would still be dismissed.
DISCUSSION
1. Plaintiff’s Motion
Plaintiff does not identify the rule pursuant to which
he brings his motion for reconsideration, so it falls to this
court
to
determine
the
appropriate
standard.
Motions
for
reconsideration may be brought pursuant to Rules 59(e) and 60(b)
of the Federal Rules of Civil Procedure (“Rule” or “Rules”) and
6.3 of the Local Rules for the United States District Courts for
the Southern and Eastern Districts of New York (“Local Rule” or
“Local Rules”).
Shearard v. Geithner, No. 09-CV-0063, 2010 WL
2243414, at *1 (E.D.N.Y. May 30, 2010).
Local Rule 6.3 provides
that a notice of motion for reconsideration or reargument of a
court order shall be served within 14 days after the entry of
the judgment.
See Local Rule 6.3.
Rule 59(e) permits a party
to seek reconsideration of a court's judgment so long as the
party files its “motion to alter or amend a judgment . . . no
later than 28 days after the entry of judgment.”
P. 59(e).
Fed. R. Civ.
If a motion for reconsideration is untimely under the
Local Rules and under Rule 59(e), the court may treat it as a
motion
for
reconsideration
under
Rule
60(b).
See
Lora
v.
O’Heaney, 602 F.3d 106, 111 (2d Cir. 2010) (treating an untimely
3
motion
for
reconsideration
as
having
been
filed
under
Rule
60(b)).
Judgment against plaintiff was entered on the docket
on September 20, 2016.
Plaintiff moved for reconsideration on
October
days
20,
2016,
30
after
the
entry
of
judgment.
Therefore, the court may only consider this motion as a motion
under Rule 60(b).
2. Analysis
The
decision
to
grant
or
deny
a
motion
for
reconsideration “is within the sound discretion of the district
court
.
.
and
is
in
sparingly
.
an
extraordinary
the
interests
of
remedy
finality
and
to
be
employed
conservation
of
scarce judicial resources.” Mangino v. Inc. Vill. of Patchogue,
814 F.Supp.2d 242, 247 (E.D.N.Y. 2011) (internal citations and
quotation marks omitted); see also Justice v. City of N.Y., No.
13-CV-4016, 2015 WL 4523154, at *1 (E.D.N.Y. July 27, 2015).
Generally, a motion for reconsideration 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.”
SBC 2010–1, LLC v. Morton, Nos. 13–714, 13–1161, 2013
WL 6642410, at *1 (2d Cir. Dec. 18, 2013) (quoting Shrader v.
CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995)) (summary
order); see Massop v. U.S. Postal Service, 493 F. App’x 231, 232
4
(2d
Cir.
2012).
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); see also Kruger
v. Virgin Atl. Airways, Ltd., No. 11-CV-2954, 2013 WL 6795251,
at *1 (E.D.N.Y. Dec. 23, 2013).
Plaintiff argues that his motion for reconsideration
should proceed because he “does not seek any cause of action
based on the Internal Revenue Code,” but rather, his claims “are
based on the New York State’s common law of conversion . . . and
other claims at common law (tortious interference with property,
trespass of property, trover, etc).”
(ECF No. 6-1 at 2.)
In
contrast, the original complaint stated the claim was brought
for “[v]iolation of Title 26 by John Doe by committing identity
theft on the filing of a return.”
(Compl. at 5.)
Plaintiff
fails to point to any additional authority or evidence that the
court overlooked in dismissing his action.
Plaintiff may not
raise new claims in his motion for reconsideration, and the
motion should be denied on that ground.
Nonetheless,
because
the
court
is
cognizant
that
plaintiff is pursuing this action pro se, it now reconsiders its
September
18,
2016,
Memorandum
5
and
Order
under
plaintiff’s
theory
that
the
court
mistakenly
allege incorrect causes of action.
construed
the
Complaint
to
The court finds that it does
not have jurisdiction to adjudicate plaintiff’s purported state
law claims, nor does it have any basis to exercise supplemental
jurisdiction over such claims, 28 U.S.C. §§ 1332, 1367, and
would have to dismiss plaintiff’s action even if reconsidered.
For these reasons, upon reconsideration, the court will adhere
to
its
original
determination
to
dismiss
pursuant to 28 U.S.C. § 1915(e)(2)(B).
6
plaintiff’s
claims
CONCLUSION
For
the
reconsideration
foregoing
under
Rule
reasons,
60(b)
plaintiff’s
is
denied
motion
because
plaintiff’s Complaint was appropriately dismissed.
for
the
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.
States, 369 U.S. 438, 444-45 (1962).
The
Coppedge
Clerk
of
v.
United
Court
is
respectfully requested to serve a copy of this Memorandum and
Order on plaintiff and note service on the docket.
SO ORDERED.
____________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Dated:
Brooklyn, New York
December 21, 2016
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