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

7