Brooks v. Educational Bus Transportation et al

Filing 72

ORDER: For the foregoing reasons (PLEASE SEE ORDER FOR FURTHER DETAILS), plaintiffs motion for reconsideration of the November 12, 2015 Order and final judgment against her is granted but, upon reconsideration, I adhere to my original determination t o (1) deny her applications for the entry of a default judgment against the Union; (2) grant the Unions application to dismiss plaintiffs claims against it pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and dismiss plaintiffs claims ag ainst the Union in their entirety for her failure to effect service upon it; (3) overrule plaintiffs objections to the Report and accept the Report in its entirety; and (4) grant EBTs motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and dismiss plaintiffs claims against EBT in their entirety with prejudice. So Ordered by Judge Sandra J. Feuerstein on 7/6/2016. (c/m to pro se) (Ortiz, Grisel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
DOLLY BROOKS,

FILED 
CLERK 

7/6/2016 1:14 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiff,
ORDER
14-CV-3237(SJF)(ARL)

-againstEDUCATIONAL BUS TRANSPORTATION and
UNITED SERVICE WORKERS UNION,
Defendants.
--------------------------------------------------------------X
FEUERSTEIN, District Judge:
I.

Introduction
Pending before the Court is the motion of pro se plaintiff Dolly Brooks (“plaintiff”)

seeking, in essence, reconsideration of (1) an order, entered November 12, 2015, that (a) denied
her applications for the entry of a default judgment against defendant United Service Workers
Union (“the Union”), (b) granted the Union’s application to dismiss plaintiff’s claims against it
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and dismissed plaintiff’s claims
against the Union in their entirety for plaintiff’s failure to effect service upon it, (c) overruled
plaintiff’s objections to a report and recommendation of the Honorable Arlene R. Lindsay,
United States Magistrate Judge, dated August 3, 2015 (“the Report”), recommending that the
motion of defendant Educational Bus Transportation (“EBT”) be granted in its entirety and
accepted the Report in its entirety, and (d) granted EBT’s motion for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure and dismissed plaintiff’s claims against EBT
in their entirety with prejudice; and (2) the final judgment entered against her on November 19,
2015. For the reasons set forth below, plaintiff’s motion for reconsideration is granted but, upon
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reconsideration, I adhere to my original determination.

II.

Discussion
A.

Standard of Review

“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.” U.S. v. Real Prop. & Premises Located at
249-20 Cambria Ave., Little Neck, N.Y. 11362, 21 F. Supp. 3d 254, 259 (E.D.N.Y. 2014).
“[R]econsideration 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 F.3d
255, 257 (2d Cir. 1995); accord Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52
(2d Cir. 2012). In determining a motion for reconsideration, the court should consider: (1)
whether there has been “an intervening change of controlling law;” (2) whether there is new
evidence presented that was not previously available on the original motion; and (3) whether
there is a “need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil
of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atl.
Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
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, 684 F.3d at 52 (quotations, alterations and citation omitted). Generally,
reconsideration will not be granted where the moving party: (1) seeks to introduce additional
facts not in the record on the original motion, see Norton v. Town of Brookhaven, 47 F. Supp. 3d
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152, 155 (E.D.N.Y. 2014) (“A party requesting reconsideration is not supposed to treat the
court’s initial decision as the opening of a dialogue in which that party may then use
[reconsideration] to advance new facts and theories in response to the court’s rulings”
(quotations, brackets and citation omitted)); Redd v. New York State Div. of Parole, 923 F. Supp.
2d 393, 396 (E.D.N.Y. 2013) (holding that on a motion for reconsideration, the moving party
must “demonstrate that any available factual matters . . . were presented to the court on the
underlying motion” (quotations and citations omitted)); (2) advances new arguments or issues
that could have been raised on the original motion, Norton, 47 F. Supp. 3d at 155 (“[A]rguments
raised for the first time on reconsideration are not proper grounds for reconsideration”); Sass v.
MTA Bus Co., 6 F. Supp. 3d 238, 244 (E.D.N.Y. 2014) (“A motion for reconsideration is neither
an occasion for repeating old arguments previously rejected nor an opportunity for making new
arguments that could have previously been made” (quotations and citation omitted)); Redd, 923
F. Supp. 2d at 396 (“A motion for reconsideration is not intended as a vehicle for a party
dissatisfied with the Court’s ruling to advance new theories that the movant failed to advance in
connection with the underlying motion * * *” (quotations and citations omitted)); or (3) “seeks
solely to relitigate an issue already decided,” Shrader, 70 F.3d at 257; see also Analytical
Surveys, 684 F.3d at 52 (holding that reconsideration “is not a vehicle for relitigating old issues *
* *” (quotations and citation omitted)). It is within the sound discretion of the district court
whether or not to grant a motion for reconsideration. See Belfiore v. Procter & Gamble Co., 140
F. Supp. 3d 241, 245 (E.D.N.Y. 2015); In re Citigroup ERISA Litig., 112 F. Supp. 3d 156, 158
(S.D.N.Y. 2015).

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B.

Plaintiff’s Claims

Plaintiff contends, inter alia, that I erred in (1) granting EBT’s motion for summary
judgment “even though the case has not been tried[,]” in violation of her Seventh Amendment
right to a jury trial; and (2) denying her motion for a default judgment against the Union, which
has never answered the complaint. Since plaintiff alleges, in essence, a need to correct purported
errors in the November 12, 2015 Order and final judgment against her, her motion for
reconsideration is granted.
However, upon reconsideration of the November 12, 2015 Order and final judgment
against plaintiff, I adhere to my original determination. Plaintiff has not presented any
controlling law, issues or facts that the Court overlooked in rendering the November 12, 2015
Order; nor established that the Court’s original determination was erroneous. Moreover,
“[s]ummary judgment, like ‘many procedural devices developed since 1791 . . . [has] been found
not to be inconsistent with the Seventh Amendment.’” Russo v. Keough’s Turn of the River
Hardware, LLC, 529 F. App’x 50, 52 (2d Cir. July 10, 2013) (summary order) (quoting Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 336, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979)); see also
McClamrock v. Eli Lilly & Co., 504 F. App’x 3, 4 (2d Cir. Nov. 29, 2012) (summary order)
(holding that the Seventh Amendment right to a jury trial “is not violated by an award of
summary judgment where . . . there are no disputed issues of material fact.”)

III. Conclusion
For the foregoing reasons, plaintiff’s motion for reconsideration of the November 12,
2015 Order and final judgment against her is granted but, upon reconsideration, I adhere to my
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original determination to (1) deny her applications for the entry of a default judgment against the
Union; (2) grant the Union’s application to dismiss plaintiff’s claims against it pursuant to Rule
4(m) of the Federal Rules of Civil Procedure and dismiss plaintiff’s claims against the Union in
their entirety for her failure to effect service upon it; (3) overrule plaintiff’s objections to the
Report and accept the Report in its entirety; and (4) grant EBT’s motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure and dismiss plaintiff’s claims against
EBT in their entirety with prejudice.

SO ORDERED.
_________/s/___________
Sandra J. Feuerstein
United States District Judge
Dated:

July 6, 2016
Central Islip, New York

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