Hernandez v. John Doe
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
MEMORANDUM AND ORDER
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.”
(ECF No. 6 at 1.)
reconsideration pursuant to Rule 60(b) of the Federal Rules of
Plaintiff Roberto Hernandez filed this pro se action
defendant committed identity theft upon plaintiff, and sought
relief from John Doe to pay all expenses caused by the identity
(ECF No. 1, Complaint (“Compl.”) at 6-7.)1
plaintiff’s dependents and causing plaintiff to incur costs to
Because the electronic docket includes documents that are not paginated
sequentially, pin citations included herein refer to the electronic document
complications of his diabetes.
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.
By Memorandum and Order dated September 18, 2016, the court
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.)
amend the judgment dismissing his case and leave to subpoena the
United States and an extension of time to appeal.
plaintiff until November 21, 2016 to provide a memorandum in
record, the court denies plaintiff’s motion for reconsideration,
and finds that, even if the motion for reconsideration were
granted, plaintiff’s action would still be dismissed.
1. Plaintiff’s Motion
Plaintiff does not identify the rule pursuant to which
he brings his motion for reconsideration, so it falls to this
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
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
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.”
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
O’Heaney, 602 F.3d 106, 111 (2d Cir. 2010) (treating an untimely
Judgment against plaintiff was entered on the docket
on September 20, 2016.
Plaintiff moved for reconsideration on
Therefore, the court may only consider this motion as a motion
under Rule 60(b).
reconsideration “is within the sound discretion of the district
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
reasonably be expected to alter the conclusion reached by the
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
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.)
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.)
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.
plaintiff is pursuing this action pro se, it now reconsiders its
allege incorrect causes of action.
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
pursuant to 28 U.S.C. § 1915(e)(2)(B).
plaintiff’s Complaint was appropriately dismissed.
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
States, 369 U.S. 438, 444-45 (1962).
respectfully requested to serve a copy of this Memorandum and
Order on plaintiff and note service on the docket.
KIYO A. MATSUMOTO
United States District Judge
Brooklyn, New York
December 21, 2016
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?