Romain v. Capital One, N.A.
Filing
51
MEMORANDUM & ORDER denying 42 Motion to Vacate; For the foregoing reasons, Plaintiffs motion for reconsideration is DENIED. Insofar as Defendant seeks sanctions against Plaintiff, this request is also DENIED with leave to renew if appropriate. Th e Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purposes of an appeal. The Clerk of Court is directed to mail a copy of this Order to the Pro Se Plaintiff. So Ordered by Judge Joanna Seybert on 10/27/2014. C/M; C/ECF (Valle, Christine)
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 250
Melville, NY 11747
Currently pending before the Court is pro se plaintiff
Joseph Romain’s (“Plaintiff”) motion for reconsideration of the
Court’s April 24, 2014 Memorandum and Order, which denied a
previous
motion
Reconsideration
by
Plaintiff
Order”).
for
reconsideration
Defendant
Capital
One,
(the
“April
N.A.
d/b/a
Capital One Bank (“Defendant”) has opposed and seeks sanctions.
For
the
following
reasons,
Plaintiff’s
motion
is
DENIED.
Defendant’s request for sanction is also DENIED, with leave to
renew if appropriate.
BACKGROUND
The
background
Court
of
presumes
this
case,
familiarity
which
is
with
detailed
the
factual
the
Court’s
in
December 9, 2013 Memorandum and Order (the “Dismissal Order,”
Docket Entry 36) granting Defendant’s motion to dismiss and in
the April Reconsideration Order.
Briefly, Plaintiff’s Amended
Complaint primarily raises claims against Defendant, his former
employer, for alleged discrimination pursuant to the Americans
with Disabilities Act of 1990, as codified 42 U.S.C. §§ 1211212117 (“ADA”).
In
the
Dismissal
Order,
this
Court
held
that
Plaintiff’s action is untimely because he failed to commence the
action within ninety days of receiving the right-to-sue letter
from the Equal Employment Opportunity Commission (“EEOC”), as
required under the ADA.
noted
that
the
EEOC
(Dismissal Order at 8-9.)
dismissed
Plaintiff’s
The Court
charge
on
September 27, 2011 and that there is a general presumption that
right-to-sue
(Dismissal
letters
Order
at
are
7.)
received
The
three
days
Dismissal
after
Order
mailing.
held
that
Plaintiff’s contention that he did not receive the right-to-sue
letter until May 17, 2013 contradicted his allegation in his
original Complaint that he received the letter in September 2011
and granted Defendant’s motion to dismiss the Amended Complaint.
(Dismissal Order at 8-9.)
2
On December 18, 2013, Plaintiff filed a motion to “set
aside the verdict,” arguing that: (1) the Court erred in the
Dismissal
U.S.C.
Order
§
because
3262
is
five
the
statute
years;
of
and
limitations
(2)
Plaintiff
sufficient facts to overcome a motion to dismiss.
Recon.
Order,
Plaintiff’s
Docket
motion
Entry
in
41,
the
at
5.)
context
under
The
of
alleged
(See April
Court
a
18
analyzed
motion
for
reconsideration and rejected Plaintiff’s arguments because 18
U.S.C. § 3262 is a criminal statute which does not affect the
ADA’s requirements and his arguments regarding the merits of his
action reiterated those made in opposition to the motion to
dismiss.
(April Recon. Order at 6.)
Plaintiff again moves for reconsideration, this time
of
the
arguing
April
that
Reconsideration
the
Court
Order.
should
award
Defendant
it
has
attorneys’
opposed,
fees
and
costs.
DISCUSSION
The
Court
will
first
discuss
the
applicable
legal
standard on a motion for reconsideration before turning to the
parties’ arguments more specifically.
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.
See Wilson v. Pessah, No. 05-CV-3143, 2007
3
WL
812999,
at
*2
(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
or
the
187
is
controlling
prior
decision.
F.R.D.
not
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
same
raise
new
points
raised
arguments
previously.”).
and
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).
II. Plaintiff’s Motion
Plaintiff’s
motion
for
reconsideration
is
somewhat
difficult to decipher.
Although he seeks to overturn the April
Reconsideration
his
before
the
Order,
Court
on
July
motion
9,
also
2013.
mentions
The
Court
a
conference
will
address
Plaintiff’s arguments according to how it has read the motion.
4
Initially, Plaintiff raises various purported errors
with respect to the proceedings on July 9, 2013.
On that date,
the Court held a conference to discuss a motion by Plaintiff’s
counsel at the time to withdraw and allow Plaintiff to proceed
pro
se.
(See
July
9,
2013
Minute
Entry.)
During
the
conference, the Court also noted that Defendant had filed a
motion to dismiss which asserted that Plaintiff’s case was timebarred.
agreed
Upon discussion with the parties and counsel, it was
that
Defendant
would
withdraw
its
motion
to
dismiss,
Plaintiff would file an Amended Complaint, and that Defendant
would respond to the Amended Complaint or move to dismiss by
August 14, 2013.
(See July 9, 2013 Minute Entry.)
Plaintiff now seems to raise two arguments regarding
the July 9, 2013 conference and the Court’s prior orders.
the first, he asserts that in rendering the Dismissal Order:
[t]he Court made a huge error to reveal a
decision already granted to Plaintiff on
July
9,
2013
without
an
Appeal
from
Defendant.
The Court ordered to file an
amended complaint on July 31, 2013 and
terminated the amended Motion to dismiss’
defendant as moot. This court should review
the documents revoked and issues already
considered by the Court in deciding on July
9, 2013 docket [22] pursuant to Rule 36 of
the Civil Procedure and Hon. Victor Marrero
District Judge in case Johnson v. St.
Barnabas Nursing Home saying that: “The
5
In
three-day presumption may be rebutted by a
claimant through sworn testimony.”1
(Pl.’s Not. of Motion, Docket Entry 42, at 4.)
The second
argument asserts:
In another huge error the court withdrew the
decision of the conference held in the
courthouse on July 9, 2013 to file an
amended complaint on July 31, 2013 and
terminated as moot defendant previous motion
to dismiss on the Memorandum & Orders on
December 9, 2013 and April 24, 2014 without
any appeal from the defendant.
The court,
under pressure of the defendant’s attorneys
made careless errors.
(Pl.’s Not. of Motion at 4.)
As best the Court can discern, Plaintiff seems to be
arguing
that
the
Court
sua
sponte
reversed
rulings
it
made
during the July 9, 2013 conference in issuing the Dismissal
Order.2
Putting aside any issues as to whether such arguments
are time-barred,3 Plaintiff could have--but did not--raise these
The Court has quoted from Plaintiff’s motion exactly, and has
not noted any errors in grammar, punctuation, or otherwise.
1
In his Affidavit in support of the current motion, submitted
seventeen days after his notice of motion, Plaintiff also argues
that the Court did not analyze allegedly false statements made
by defense counsel during the conference. (Pl.’s First Aff. in
Support, Docket Entry 45, at 2-3.) However, the April
Reconsideration Order specifically rejected Plaintiff’s
arguments on the merits, noting that he inappropriately sought
to reargue issues already rejected by the Court. (April Recon.
Order at 6.) Plaintiff improperly attempts to do the same
through this motion.
2
Local Civil Rule 6.3 generally provides that motions for
reconsideration must be made within fourteen days. LOCAL CIV. R.
3
6
arguments
in
his
original
motion
for
reconsideration.
Pl.’s First Mot. for Recon., Docket Entry 38.)
(See
In any event,
the Court specifically held during the conference that Defendant
was entitled to move to dismiss the Amended Complaint, giving
Defendant a deadline to do so, and made no particular rulings
regarding the merits of Plaintiff’s action.
simply
did
not
Accordingly,
reverse
Plaintiff’s
or
contradict
motion
for
The Dismissal Order
any
prior
reconsideration
rulings.
in
this
respect is DENIED.
Plaintiff additionally argues that the Court erred in
the
April
Reconsideration
Order
because
Plaintiff
did
not
receive the right-to-sue letter until May 17, 2013 and that
Defendant committed a criminal act.
(Pl.’s Not. of Motion at 5-
6, 8; Pl.’s First Aff. in Support at 2.)
Plaintiff is seeking
to relitigate arguments that the Court specifically addressed
and rejected in the April Reconsideration Order.
appropriate grounds for reconsideration.
These are not
See supra pp. 3-4.
As
such, Plaintiff’s motion for reconsideration in this regard is
DENIED.
Finally, Plaintiff also asserts that the Court erred
because
the
April
Reconsideration
Order
did
not
address
6.3. Federal Rule of Civil Procedure 60 provides that a motion
under Rule 60(b) must be made within a “reasonable time” or no
more than one year if pursuant to Rule 60(b)(1-3). FED. R. CIV.
P. 60(c)(1).
7
Defendant’s argument regarding attorneys’ fees.
Motion
at
5.)
Defendant
has
again
renewed
(Pl.’s Not. of
its
request
for
attorneys’ fees in opposition to the current motion4, and the
Court will address this issue below.
Notably, reconsideration
does not necessarily mean that the Court would “rescind” its
April Reconsideration Order, as Plaintiff suggests.
of Motion at 5.)
that
it
(Pl.’s Not.
Rather, the Court would evaluate any issue
overlooked.
See
supra
pp.
3-4.
The
Court
will
specifically address Defendant’s argument below.
III. Attorneys’ Fees and Costs
Defendant
against
because
Plaintiff
asserts
in
Plaintiff’s
the
that
form
claims
sanctions
of
are
should
attorneys’
“meritless
(Def.’s Opp. Br., Docket Entry 44, at 2.)
fees
and
be
imposed
and
costs
vexatious.”
Although the Court
Plaintiff also argues that Defendant’s opposition is untimely.
(See Pl.’s First Aff. in Support at 3; Pl.’s Am. Aff. in
Support, Docket Entry 48, at 3.) Plaintiff submitted an
affirmation of service indicating that he served the notice of
motion by overnight mail on May 2, 2014. (See Aff. of Service,
Docket Entry 43.) Defendant did not file an opposition until
May 22, 2014. A late or even non-existent opposition, however,
does not require that the Court grant Plaintiff’s motion, as he
seems to suggest. See RMED Int’l, Inc. v. Sloan’s Supermarkets,
Inc., No. 94-CV-5587, 2003 WL 22251323, at *1 (S.D.N.Y. Sept.
30, 2003) (noting that the court “sits . . . as a guardian”).
In any event, Defendant’s opposition was received within
fourteen days of the electronic filing on Plaintiff’s notice of
motion and within three days of the date of Plaintiff’s
Affidavit in Support. Insofar as Defendant’s opposition is
late, the Court GRANTS Defendant an extension of time nunc pro
tunc.
4
8
does
not
condone
Plaintiff’s
actions,
it
declines
to
impose
sanctions at this juncture.
The
ADA
provides
that
a
district
court
“in
its
discretion, may allow the prevailing party . . . a reasonable
attorney’s fee, including litigation expenses and costs . . . .”
42 U.S.C. § 12205.
court
must
When a defendant seeks such relief, the
find
the
plaintiff’s
claim
is
“frivolous,
unreasonable, or groundless, or that the plaintiff continued to
litigate after it clearly became so.”
Christiansburg Garment
Co. v. Equal Emp’t Opportunity Comm’n, 434 U.S. 412, 422, 98 S.
Ct.
694,
“difficult
701,
to
54
L.
Ed.
meet.”
2d
Access
648
4
(1978).
All,
This
Inc.
v.
standard
Ulster
is
Heights
Props., Inc., No. 07-CV-2923, 2008 WL 5582198 (S.D.N.Y. Dec. 10,
2008), adopted by 2009 WL 256008 (S.D.N.Y. Feb. 2, 2009).
Here, although Plaintiff’s claim was dismissed at the
motion
to
dismiss
stage,
necessarily frivolous.
this
does
not
mean
that
it
was
See Ecogen, LLC v. Town of Italy, 461 F.
Supp. 2d 100, 104 (W.D.N.Y. 2006).
In light of Plaintiff’s
assertions that his claim was timely, even though ultimately
unsuccessful,
the
frivolous per se.
claims
were
plaintiff
had
Court
not
find
that
the
action
was
See id. (declining to impose sanctions where
dismissed
set
does
on
forth
a
some
motion
to
dismiss
“shortcomings”
defendant’s actions).
9
with
because
respect
the
to
More troublesome is that Plaintiff has continued to
litigate this case and present arguments that the Court has
unambiguously
rejected.
The
Dismissal
Order
and
the
April
Reconsideration Order made clear that Plaintiff cannot sustain
this action.
This could indeed render sanctions appropriate.
See Murphy v. Bd of Educ. of Rochester City Sch. Dist., 420 F.
Supp. 2d 131, 138 (W.D.N.Y. 2006).
Nonetheless, Plaintiff is a
pro se litigant and attorneys’ fees and costs are a relatively
harsh
sanction
within
the
Court’s
discretion.
See
Toro
v.
Depository Trust Co., No. 97-CV-5383, 1997 WL 752729, at *5
(S.D.N.Y. Dec. 4, 1997) (“Adhering to the general reluctance of
courts to impose sanctions against a pro se plaintiff, I decline
to award attorneys’ fees to defendants.”); Kota v. Abele Tractor
&
Equip.
Co.,
Inc.,
No.
88-CV-0632,
1990
WL
37896,
at
*2
(N.D.N.Y. Mar. 23, 1990) (holding that, even if the claim was
frivolous, it would not impose sanctions because defendant would
be in a better position to absorb the cost of litigation than a
former
employee).
Therefore,
sanctions at this time.
that
continued
attorneys’
fees
litigation
and
costs
the
Court
declines
to
impose
However, Plaintiff has ample notice
can
result
against
him.
in
the
imposition
Plaintiff
will
of
not
receive any additional warnings.
Defendant’s request for sanctions against Plaintiff is
DENIED with leave to renew if appropriate.
10
CONCLUSION
For
the
foregoing
reconsideration is DENIED.
reasons,
Plaintiff’s
motion
for
Insofar as Defendant seeks sanctions
against Plaintiff, this request is also DENIED with leave to
renew if appropriate.
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
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:
October
27 , 2014
Central Islip, New York
11
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?