Pietsch v. Marcantonio et al

Filing 38

MEMORANDUM & ORDER denying 32 Motion to Amend/Correct/Supplement; denying 35 Motion to Compel; For the reasons set forth above, Plaintiff's motions (Docket Entries 32 and 35) are DENIED. Given that the Plaintiff has been unable to provid e the USMS with an address at which P.O. Marcantonio can be served, and their efforts to serve P.O. Marcantio at the three addresses provided by Plaintiff on three occasions have been unsuccessful, the Court has no choice but to DISMISS THE COMPLAINT WITHOUT PREJUDICE. 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 purpose of an appeal. The Clerk of the Court is directed to mail a copy of this Order to the pro se Plaintiff at his last known address and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 3/16/2016. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
WALTER G. PIETSCH,
Plaintiff,

MEMORANDUM & ORDER
13-CV-4696(JS)(SIL)

-againstPOLICE OFFICER VITO MARCANTONIO,
SHIELD # 299,

Defendant.
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APPEARANCES
For Plaintiff:
Walter G. Pietsch, pro se
P.O. Box 10057
Westbury, NY 11590
For Defendants:

No appearances.

SEYBERT, District Judge:
Pending

before

the

Court

are

motions

from

pro

se

plaintiff Walter G. Pietsch (“Plaintiff”) to: (1) “correct the
captioning

of

Presidential

this

Debates

action”

to

include

(“Commission”),

the

the

Commission

Democratic

on

National

Committee (“DNC”), the Republican National Committee (“RNC”),
Hofstra

University

(“Hofstra”),

President

Barack

Obama

(“President Obama”), US Secret Service, the Nassau County Police
Department, the Associated Press, CNN, the New York Times, and
Newsday as defendants; and (2) subpoena several individuals and
entities, including President Barack Obama.
32 and 35.)

(See Docket Entries

For the reasons that follow, the motions are DENIED

and the Complaint is DISMISSED WITHOUT PREJUDICE.

BACKGROUND
On

August

21,

2013,

Plaintiff

filed

an

in

forma

pauperis civil rights Complaint pursuant to 42 U.S.C. § 1983
(“Section 1983”) against Police Officer Vito Marcantonio, Shield
#

299

(“P.O.

(“Rabinowitz”),

Marcantonio”),
the

Commission,

Hofstra,
the

DNC,

Stuart
and

the

Rabinowitz
RNC.

By

Memorandum and Order dated November 18, 2013, the Court granted
Plaintiff’s

application

to

proceed

in

forma

pauperis

and

dismissed without prejudice and with leave to amend Plaintiff’s
claims against Hofstra, Rabinowitz, the Commission, the DNC, and
the

RNC,

and

permitted

Marcantonio to proceed.

Plaintiff’s

claims

against

P.O.

(Nov. 18, 2013 M&O, Docket Entry 7.)

Accordingly, the Court ordered Plaintiff to provide the Court
with an address for P.O. Marcantonio in writing within thirty
(30) days from the date of the M&O in order to permit the United
States Marshal Service (“USMS”) to serve copies of the Summons,
Coomplaint, and the M&O upon P.O. Marcantonio.

(Nov. 18, 2013

M&O at 14.)
On December 12, 2013, Plaintiff moved for an extension
of time to file an amended complaint. (Docket Entry 9.)

On

December 18, 2013, the Court granted Plaintiff’s request and
ordered Plaintiff to file an amended complaint by December 28,
2013.

On December 18, 2013, Plaintiff filed a document that he

identified

as

an

“Amended

Complaint.”
2

(Docket

Entry

11.)

However,

the

December

18th

filing

did

not

include

any

allegations purporting to cure the pleading deficiencies of the
original Complaint as against Hofstra and Rabinowitz.

Rather,

the December 18th filing contained a motion for recusal of the
undersigned and a reiteration of Plaintiff’s previous request
for

the

twenty-day

complaint.

extension

of

time

to

file

an

amended

The December 18th filing also provided the Court

with an address of “Commission on Presidential Debates, 1200 New
Hampshire Avenue, NW, Washington, DC 20036” for service of the
Summons,

Complaint,

Marcantonio.

and

the

November

18th

Order

on

P.O.

(Docket Entry 11 at 5.)

On December 27, 2013, Plaintiff filed another document
that he identified as a “Crucial Addendum to Amended Complaint.”
(Docket Entry 12.)

However, like Plaintiff’s prior filing on

December 18th, the December 27th filing did not include any
allegations purporting to cure the pleading deficiencies of the
original

Complaint

as

against

Hofstra

and

Rabinowitz,

but

Plaintiff did request an additional twenty-day extension to file
an amended complaint.
recusal

of

the

Plaintiff also filed a second motion for

undersigned

and

a

motion

for

an

open-ended

extension of time . . . until Vito Marcantonio . . . is found,
identified, and served by the U.S. Marshall.”
13.)
and

(Docket Entry

Plaintiff also filed prolix documents on February 4, 5,
10,

2014.

(Docket

Entries
3

15-17.)

Like

Plaintiff’s

previous filings, none of these filings included any facts or
allegations that Hofstra or Rabinowitz were acting under color
of state law, nor were there any facts from which the Court
could

reasonably

construe

Hofstra or Rabinowitz.

a

conspiracy

claim

against

either

However, in his February 5, 2014 filing,

Plaintiff provided a new address for P.O. Marcantonio at “144
Hofstra University, Hempstead, NY 11549.”

(Docket Entry 16 at

1.)
Accordingly,

by

Memorandum

and

Order

dated

February 25, 2014, the Court: (1) dismissed Plaintiff’s claims
against

Hofstra

Plaintiff’s

and

motion

Rabinowitz

for

an

with

“open-ended

prejudice;
extension

(2)
of

denied

time”

to

locate and serve P.O. Marcatonio; (3) directed the Clerk of the
Court to issue a summons against P.O. Marcantonio and to forward
it to the USMS together with the Complaint and the M&O for
service

upon

Hempstead,

NY

P.O.

Marcantonio

11549;

and

(4)

recusal of the undersigned.

at
denied

144

Hofstra

Plaintiff’s

University,
motion

for

(Feb. 25, 2014 M&O, Docket Entry

18, at 6.)
On May 5, 2014, the Court received a process receipt
and return from the USMS indicating that it was unable to serve
P.O.

Marcantonio

Court.

(Docket

at

the

Entry

address

22.)

previously

Based

upon

provided

Plaintiff’s

to

the

filings

herein, it is unclear whether P.O. Marcantonio was a police
4

officer

or

University.

a

public

safety

official

employed

by

Hofstra

In a Memorandum and Order dated May 15, 2014, the

Court reauthorized service of the Summons and Complaint on P.O.
Marcantonio at Hofstra, to the extent that P.O. Marcantonio was
employed in any capacity by Hofstra.
Entry 24.)1
process

(May 15, 2014 M&O, Docket

On October 10, 2014, the Court again received a

receipt

and

return

from

the

USMS

stating

that

the

general counsel of Hofstra would not accept service since “no
such individual works at [the] univ[ersity].”

(Docket Entry

27.)
Plaintiff filed a motion dated June 6, 2014 insisting
that P.O. Marcantonio is employed by Hofstra and requesting the
Court order the USMS to return to Hofstra to obtain information
as to P.O. Marcantonio’s identity.

(See, Docket Entry 26.)

Plaintiff also moved for in forma pauperis
appeals in the future.”
and

Order

denied.

dated

status “for all

(See, Docket Entry 28.)

February

26,

2015,

By Memorandum

Plaintiff’s

(Feb. 26, 2015 M&O, Docket Entry 31.)

motion

was

However, the

Court ordered the USMS to attempt service one additional time.
The Clerk of the Court was directed to issue a Summons and Rider
identical to the previous Summons and Rider at Docket Entry 25

The Court’s May 15, 2014 M&O also denied Plaintiff’s request to
subpoena Hofstra’s President and its Director of Public Safety
to identify P.O. Marcantonio because it was premature. (See,
Docket Entry 24 at 2.)
1

5

and forward them to the USMS together with the Complaint, the
Court’s

November

18,

2013

and

May

15,

2014

M&O’s

and

February 26, 2015 M&O for service upon P.O. Marcantonio.

the
The

Court cautioned Plaintiff that “[i]f the USMS cannot effectuate
service this third time, the Court will have no choice but to
dismiss this action.”

(Feb. 26, 2015 M&O at 2.)

Finally, the

Court denied Plaintiff’s motion for in forma pauperis status
“for all appeals in the future.”
On

February

11,

(Feb. 26, 2015 M&O at 2.)

2016,

the

USMS

Service unexecuted for P.O. Marcantonio.

filed

a

Return

of

Service was attempted

by the USMS at: (1) 1000 Fulton Avenue, Hempstead, New York; (2)
144 Hofstra University, Hempstead, New York; and (3) Hofstra
University Dept. of Public Safety and Information Center.

(See,

Docket Entry 37.)
DISCUSSION
I.

Plaintiff’s Present Applications
On

March

16,

2015,

Plaintiff

filed

a

“Motion

and

Response to Judge Seybert’s Memorandum and Order Dated February
26,

2015.”

(March

2015

Mot.,

Docket

Entry

32.)

Plaintiff

objects to the Feb. 26, 2015 M&O in its entirety except that
Plaintiff “approves” insofar as the USMS was directed to return
to Hofstra to serve P.O. Marcantonio.
Plaintiff

seeks

to:

(1)

subpoena

(March 2015 Mot. at 2.)
Michael

Finnerman,

who

Plaintiff claims is employed by Hofstra’s Department of Public
6

Safety, and permit Plaintiff to depose him, inter alia, “as to
the true identity of ‘Vito Marcantonio’ (most likely a fictious
name)”;

(2)

subpoena

Hofstra

President

Rabinowitz

and

permit

Plaintiff to depose him, inter alia, “regarding the identity of
the ‘phantom law man’”; and (3) “correct the captioning of this
action” to include the Commission, the DNC, the RNC, Hofstra,
President Obama, the US Secret Service, the Nassau County Police
Department, the Associated Press, CNN, the New York Times, and
Newsday, as defendants.

(March 2015 Mot. at 1-3.)

Finally,

Plaintiff “AGAIN request[s] [the Court] to approve Plaintiff’s
proceeding ‘in forma pauperis’ [on appeal].”

(March 2015 Mot.

at 4.)
On May 1, 2015, Plaintiff filed a “Motion to Subpoena
the

following

Defendants:

President

Barack

Obama;

US

Secret

Service; Commission on Presidential Debates; Democratic National
Committee;
County

Republican

Police

Department”

Docket Entry 35.)
effort
security

to

National

Committee;

for

[and

deposition.

(May

the]

Nassau

2015

Mot.,

Plaintiff seeks depose these parties in an

ascertain,

arrangements

inter
at

the

alia,

who

October

was
16,

responsible
2012

for

Presidential

Debate held at Hofstra, presumably in an effort to ascertain the
true identity and/or employer of P.O. Marcantonio.
Mot. at 1-2.)

7

(May 2015

Because
issues

already

liberally

both

heard

construes

of
and

these

these

applications

decided
pro

se

by

the

largely

Court,

submissions

as

address

the

Court

motions

for

reconsideration.
II.

Legal Standard
“Motions for reconsideration may be brought pursuant

to [Federal Rules of Civil Procedure] 59(e) and 60(b) and Local
Rule 6.3.”

In Re Gentiva Sec. Litig., 971 F. Supp. 2d 305, 332

(E.D.N.Y. 2013).

“A motion for reconsideration is appropriate

when the moving party believes the Court overlooked important
‘matters or controlling decisions’ that would have influenced
the prior decision.”

Id. (quoting Shamis v. Ambassador Factors

Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999)).

“The standard for

granting a motion for reconsideration pursuant to either Fed. R.
Civ.

P.

59(e)

or

Local

Civil

Rule

6.3

reconsideration will generally be denied.”

is

strict,

and

Herschaft v. N.Y.

City Campaign Fin. Bd., 139 F. Supp. 2d 282, 283 (E.D.N.Y. 2001)
(internal quotation marks and citation omitted).

In addition,

party seeking reconsideration may not raise new arguments and
issues.

Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp.

132, 135 (E.D.N.Y. 1997).

Thus, 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., Ltd., 186 F. Supp. 2d
8

402, 410 (S.D.N.Y. 2002); see also Schrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995) (noting that the standard
for reconsideration is “strict” and that “reconsideration will
generally

be

controlling

denied
decisions

unless
or

the

data

moving
that

party

the

can

court

point

to

overlooked--

matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.”)
Rule 60(b) of the Federal Rules of Civil Procedure
also permits the Court to relieve a party from an order in the
event

of

mistake,

inadvertence,

surprise,

newly discovered evidence, or fraud.

excusable

neglect,

Fed. R. Civ. P. 60(b).

The Second Circuit instructs that Rule 60(b) is “extraordinary
judicial relief” and can be granted “only upon a showing of
exceptional circumstances.”

Nemaizer v. Baker, 793 F.2d 58, 61

(2d Cir. 1986); accord Empresa Cubana Del Tabaco v. General
Cigar Co., 385 F. App’x 29, 31 (2d Cir. 2010).

Further, Local

Civil Rule 6.3 provides that a party moving for reconsideration
must “set[] forth concisely the matters or controlling decisions
which [the party] believes the Court has overlooked.”

See Local

Civ. R. 6.3.
III. Analysis

Plaintiff’s

applications

provide

no

controlling

decisions or data which the Court may have overlooked.

In fact,

Plaintiff cites no case law in his motions nor does he point to
9

any controlling matters which the Court overlooked.

Even given

the liberal construction afforded to Plaintiff’s submissions,
the Court can discern no legal basis for granting Plaintiff’s
motions.

Furthermore,

Plaintiff

exceptional

circumstances

which

does

would

not

indicate

warrant

such

any

relief.

Accordingly, Plaintiff’s motions are DENIED.
Moreover,

insofar

as

Plaintiff

seeks

to

compel

the

Court to issue subpoenas to the non-parties2 identified above,
including the President of the United States, the Court finds
that Plaintiff’s submission does not comply with Federal Rule of
Civil

Procedure

45.

Subpoenas

directed

to

non-parties

are

governed by Rule 45 of the Federal Rules of Civil Procedure.
Rule 45(a)(3) provides that the Clerk of the Court shall issue a
signed but blank subpoena to the party requesting it, who is
responsible for completing the subpoena for service.

Plaintiff

has not requested that the Clerk issue a subpoena nor has he
annexed the subpoenas to his applications.
not

complied

Plaintiff

had

with

Rule

complied

45.
with

And,
Rule

45,

Thus, Plaintiff has

assuming
the

arguendo

Court

finds

that
that

Notwithstanding Plaintiff’s attempt to include some of these
individuals and entities as defendants by seeking to “correct
the caption” they remain non-parties. Unless and until the
Court permits the Plaintiff to further amend his Complaint,
which it does not, Plaintiff cannot add defendants by simply
“correct[ing] the caption.”
2

10

Plaintiff’s requests to subpoena new defendants for purposes of
expediting discovery are unreasonable.
When presented with requests for expedited discovery of
this nature, district courts in this Circuit have considered “a
variety of reasonableness-based tests.”

Catlin v. Global, 14-

CV-6324, 2014 WL 3955220, *2 (W.D.N.Y. Aug. 13, 2014); see also
Litwin v. OceanFreight, Inc., 865 F. Supp. 2d 385, 402 (S.D.N.Y.
2011).

To

satisfy

the

reasonableness

standard,

the

party

seeking discovery must “prove that the requests are reasonable
under the circumstances.” N. Atl. Operating Co. v. Evergreen
Distribs., LLC, 293 F.R.D. 363, 367 (E.D.N.Y. 2013) (internal
quotation marks and citation omitted)).

Here, Plaintiff has not

provided any basis for the Court to reasonably conclude that any
of the individuals and/or entities that he seeks to subpoena
have the information he seeks.

Rather, Plaintiff has cast a

wide net--that includes the President of the United States--in
an effort to ascertain the identity of an individual with whom
Plaintiff claims to have interacted nearly three and a half
years

ago.

Whether

any

of

the

individuals

and/or

entities

sought to be subpoenaed would have such information is dubious,
at best.

Accordingly, because the Court finds that Plaintiff’s

request for expedited discovery is patently unreasonable, his
applications are DENIED.

11

CONCLUSION
For the reasons set forth above, Plaintiff’s motions
(Docket Entries 32 and 35) are DENIED.

Given that the Plaintiff

has been unable to provide the USMS with an address at which
P.O. Marcantonio can be served, and their efforts to serve P.O.
Marcantio at the three addresses provided by Plaintiff on three
occasions have been unsuccessful, the Court has no choice but to
DISMISS

THE

COMPLAINT

WITHOUT

PREJUDICE.

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 purpose 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 at his last known address and
to mark this case CLOSED.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
16 , 2016
Central Islip, New York

12