Romain v. Capital One, N.A.

Filing 41

MEMORANDUM & ORDER re: 38 Motion to Set Aside Judgment is DENIED. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED for purposes of an appeal. Ordered by Judge Joanna Seybert on 4/24/2014. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JOSEPH ROMAIN,
Plaintiff,

MEMORANDUM & ORDER
13-CV-3035(JS)(WDW)

-against–
CAPITAL ONE, N.A. d/b/a CAPITAL
ONE BANK,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Joseph Romain, pro se
176 Rushmore Street
Westbury, NY 11590
For Defendant:

Paul J. Siegel, Esq.
Alessandro Villanella, Esq.
Jackson Lewis, LLP
58 South Service Road, Suite 410
Melville, NY 11747

Currently pending before the Court is pro se plaintiff
Joseph Romain’s (“Plaintiff”) motion to set aside judgment.

For

the following reasons, Plaintiff’s motion is DENIED.
BACKGROUND
The

Court

presumes

familiarity

with

the

factual

background of this case, which is set forth in detail in the
Court’s December 9, 2013 Memorandum and Order granting defendant
Capital

One,

N.A.

d/b/a

Capital

One

Bank’s

(“Defendant”

or

“Capital One”) motion to dismiss (the “Dismissal Order,” Docket
Entry 36).

Briefly, Plaintiff commenced this action on May 21,

2013 and, following an initial motion to dismiss by Defendant,

filed

an

Amended

Complaint

on

July

30,

2013.

The

Amended

Complaint alleges that Plaintiff brought this action “against
the

Defendant

accommodate
Plaintiff,

on

the

Plaintiff’s
unequal

basis

of

its

disability,

terms

and

failure

its

to

failure

condition[s]

of

reasonably
to

promote

employment,

forcible restraint and verbal abuse [ ] . . . and its failure to
correct a hostile work environment.”

(Am. Compl. ¶ 1; see also

Dismissal Order at 2.)
Plaintiff’s allegations relate to events that began in
March 2007 through the termination of his employment on January
2, 2010.
that

(See Dismissal Order at 2-3.)

Defendant

discriminated

against

Primarily, he asserts

him

on

the

basis

of

a

disability in violation of the Americans with Disabilities Act
of 1990, as codified 42 U.S.C. §§ 12112-12117 (“ADA”).

Although

Plaintiff filed a charge with the New York State Division of
Human Rights (“NYSDHR”) and the United States Equal Employment
Opportunity Commission (“EEOC”) in 2010, he maintained that he
did

not

receive

May 17, 2013.

a

right-to-sue

letter

from

the

EEOC

until

(See Dismissal Order at 4.)

On August 14, 2013, Defendant moved before this Court
to

dismiss

the

Amended

Complaint.

(See

Docket

Entry

25.)

Defendant argued that Plaintiff’s action is not timely because
Plaintiff failed to commence this action within ninety days of
receiving the right-to-sue letter from the EEOC, as required
2

under the ADA.
St.

Barnabas

2010).)

In

(See Dismissal Order at 6-7 (citing Johnson v.
Nursing
the

Home,

Dismissal

368

F.

Order,

App’x
the

246,

Plaintiff’s action was indeed untimely.

(2d

Cir.

concluded

Court

248

that

The Court first noted

the general presumption that right-to-sue letters are received
three

days

Johnson,

after

368

F.

mailing.
App’x

at

(Dismissal
248).)

Order

Here,

the

Plaintiff’s charge on September 27, 2011.
7.)

The

undersigned

then

went

on

to

at

7

EEOC

(quoting
dismissed

(Dismissal Order at

find

that

Plaintiff’s

contention that he did not receive the right-to-sue letter until
May 17, 2013 flatly contradicted his allegation in his original
Complaint

that

he

September 27, 2011.

received

the

right-to-sue

(Dismissal Order at 8.)

letter

on

Moreover, that the

letter suddenly appeared in the mail nearly two years later
seemed highly unlikely.
the

Court

granted

(Dismissal Order at 8-9.)

Defendant’s

motion

to

dismiss

Accordingly,
the

Amended

Complaint on timeliness grounds.
DISCUSSION
Plaintiff now moves “to set aside judgment,” which the
Court

will

consider

in

the

framework

of

reconsideration of the Court’s Dismissal Order.

a

motion

for

The Court will

first address the applicable legal standard before turning to
Plaintiff’s motion specifically.

3

I.

Legal Standard
Motions for reconsideration may be brought pursuant to

Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure
and Local Rule 6.3.
WL

812999,

at

*2

See Wilson v. Pessah, No. 05-CV-3143, 2007
(E.D.N.Y.

Mar.

14,

2007).

A

motion

for

reconsideration is appropriate when the moving party believes
the

Court

overlooked

decisions”

that

Shamis

Ambassador

v.

(S.D.N.Y.

would

1999).

important
have

“matters

influenced

Factors

Corp.,

Reconsideration

is

or

the
187

not

controlling

prior

decision.

F.R.D.
a

148,

proper

tool

151
to

repackage and relitigate arguments and issues already considered
by the Court in deciding the original motion.

See United States

v. Gross, No. 98-CR-0159, 2002 WL 32096592, at *4 (E.D.N.Y. Dec.
5, 2002) (“A party may not use a motion to reconsider as an
opportunity

to

Nor

proper

is

it

reargue
to

the
raise

same
new

points

raised

arguments

and

previously.”).
issues.

See

Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp. 132, 135
(E.D.N.Y. 1997).

Reconsideration may only be granted when the

Court did not evaluate decisions or data that might reasonably
be

expected

to

alter

the

conclusion

reached

by

the

Court.

Wechsler v. Hunt Health Sys., 186 F. Supp. 2d 402, 410 (S.D.N.Y.
2002).

4

II. Analysis
The

exact

basis

reconsideration is unclear.

of

Plaintiff’s

motion

for

Much like his Amended Complaint,

the Court finds his motion difficult to decipher.

Nonetheless,

the Court reads Plaintiff’s motion to assert two arguments: (1)
that

the

Court

erred

in

finding

Plaintiff’s

action

untimely

because the statute of limitations for prosecutions under 18
U.S.C.

§

3262

sufficient

is

claims

five
to

years,

and

survive

a

(2)

Plaintiff

motion

to

has

alleged

dismiss.

Both

arguments are without merit.
First, Plaintiff cites to a criminal statute to assert
that his action is timely.

Specifically, he points to allegedly

false statements made by Defendant to the NYSDHR.
Docket

Entry

38,

¶

1.)

He

argues

that

“[t]he

(Pl.’s Aff.,
statute

of

limitations starts to run when the crime is completed, which is
when

the

false

submitted.

statement

is

made

or

the

false

document

is

On June 17, 2011 Capital One Bank submitted a false

document to the investigator Nadia G. Elize[,] New York State
Division

of

Human

Rights.”

however,

has

action.

He cannot assert a private cause of action for an

alleged

(Pl.’s

disability

alleged criminal violation.

5

Aff.

¶

1.)

discrimination

Plaintiff,
in

a

civil

Moreover,

the

Court

found

his

action

untimely

not

based upon a “statute of limitations,” per se, but upon the
requirements to bringing an action under the ADA.
Order at 7.)

(Dismissal

Plaintiff has made no argument in this regard.

Second, Plaintiff’s assertions regarding the merits of
this action merely reiterate those made in opposition to the
motion to dismiss.
Defendant

For example, he argues, inter alia, that

terminated

only

persons

with

disabilities,

that

Defendant’s personnel lied, and that Defendant forced Plaintiff
to lift heavy boxes despite medical restrictions.
Aff. ¶¶ 4, 15-16, 21.)

These were the very same arguments that

Plaintiff previously raised.
29.)

Reargument

reconsideration.

(See Pl.’s

is

(See generally Docket Entries 28-

not

an

appropriate

ground

for

See Davidson v. Scully, 172 F. Supp. 2d 458,

463-64 (S.D.N.Y. 2001) (denying motion for reconsideration where
plaintiff

largely

restated

arguments

and

attempted

to

submit

further evidence in support of his claim).
Accordingly, Plaintiff’s motion for reconsideration is
DENIED.
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

motion

to

reconsider the Dismissal Order is DENIED.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
6

and therefore in forma pauperis status is DENIED for purposes of
an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45, 82

S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Order to the pro se Plaintiff.

SO ORDERED
/s/ JOANNA SEYBERT________

Joanna Seybert, U.S.D.J.
DATED:

April
24 , 2014
Central Islip, New York

7