Merchant v. Long Island Newsday LLC et al

Filing 17

MEMORANDUM & ORDER - Plaintiffs 13 motion for reconsideration 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 and therefore in forma pauperis status is denied f or 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 by Judge Joanna Seybert on 11/13/2014. C/M to pro se pltff via FCM. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JERRY MERCHANT,
Plaintiff,

MEMORANDUM & ORDER
14-CV-1674(JS)(AKT)

-againstLONG ISLAND NEWSDAY LLC, KEVIN
DEUISCH, and HOWARD SCHNAPP,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Jerry Merchant, pro se
55 East Hudson Street
Long Beach, NY 11516
For Defendants:

No appearances

SEYBERT, District Judge:
Currently pending before the Court is pro se plaintiff
Jerry

Merchant’s (“Plaintiff”) motion for reconsideration of the

Court’s May 28, 2014 Memorandum and Order (the “May Order,” Docket
Entry 7).

For the reasons that follow, Plaintiff’s motion is

DENIED.
BACKGROUND
The

Court

presumes

familiarity

with

the

factual

background of this case, which is set forth in the Court’s May
Order.

Briefly, the May Order granted Plaintiff’s application to

proceed in forma pauperis and dismissed his Complaint against Long
Island Newsday, LLC (“Newsday”), Kevin Deuisch (“Deuisch”), and
Howard Schnapp (“Schnapp”) (collectively, “Defendants”) brought
pursuant to 42 U.S.C. § 1983 (“Section 1983”). The Court dismissed
Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),

1915A(b)(1), finding that Plaintiff’s Section 1983 claims against
the Defendants were not plausible because none of the Defendants
were alleged to act under color of state law nor did Plaintiff
allege any facts from which the Court could reasonably construe
that the Defendants conspired with a state actor. (May Order at 56.)
DISCUSSION
Plaintiff now seeks reconsideration of the May Order,
arguing that: (1) it was improper for the Court to review the
substance of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915
because it had already been reviewed by the Court when his papers
were processed at the time of filing; and (2) the “closed door
interview with the Nassau County District Attorney’s Office” is
sufficient to demonstrate that the Defendants conspired with a
state actor.

The Court will first address the applicable legal

standard on a motion for reconsideration before turning to the
merits of Plaintiff’s motion.
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 In Re Gentiva Sec. Litig., 971 F. Supp. 2d

305, 332 (E.D.N.Y. 2013).
reconsideration

pursuant

The standard for granting a motion for
to

Rule

59(e)

reconsideration will generally be denied.”
2

is

“strict,

and

Herschaft v. N.Y.C.

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

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. Shamis v. Ambassador Factors Corp.,
187 F.R.D. 148, 151 (S.D.N.Y. 1999).
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,

excusable

neglect,

newly

discovered

evidence, fraud, or in exceptional or extraordinary circumstances.
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 United States v. Bank of
N.Y., 14 F.3d 756, 759 (2d Cir. 1994).
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. “The standard for granting [a
motion for reconsideration] is strict, and reconsideration will
generally

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.” Shrader v. CSX Transp., Inc., 70
3

F.3d 255, 257 (2d Cir. 1995).
Whether brought under Federal Rule or Civil Procedure
59(e) or 60(b), or Local Civil Rule 6.3, reconsideration is not a
proper tool 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 reargue the same points raised
previously.”). Nor is it proper to raise new arguments 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. Analysis
Plaintiff does not argue that there is new evidence
demonstrating that the Court’s May Order was in error.

Nor does

Plaintiff assert that the Court overlooked important “matters or
controlling
decision.

decisions”

that

would

have

influenced

the

prior

Rather, Plaintiff relies on the mistaken notion that a

substantive review of his Complaint was undertaken by the Court’s
pro se office staff at the time the Complaint was filed.

Thus,

insofar as Plaintiff relies on this Court’s review of his Complaint
in accordance with 28 U.S.C. § 1915 and § 1915A as a proper basis
4

to grant reconsideration, such reliance is misplaced.
To the extent that Plaintiff seeks reconsideration to
argue that the Court erroneously concluded that the Complaint did
not allege state action, a motion for reconsideration is not the
appropriate vehicle.

See supra pp. 2-3.

Plaintiff has not made

any showing of a change in the controlling law or the need to
correct a clear error or to prevent a manifest injustice.

Rather,

Plaintiff seeks to relitigate issues already resolved by this
Court.

Thus, Plaintiff’s motion for reconsideration is DENIED.
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

motion

for

reconsideration 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
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:

November
13 , 2014
Central Islip, New York
5