Callwood et al v. City of Kingston et al

Filing 213

SUMMARY ORDER - That County defendants' motion for reconsideration (Dkt. No. 207) is DENIED. Signed by Senior Judge Gary L. Sharpe on 7/2/2020. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ANGIE CALLWOOD et al.,
Plaintiffs,

1:15-cv-1298
(GLS/TWD)

v.
MICHAEL MILLS et al.,
Defendants.
________________________________
SUMMARY ORDER
Plaintiffs Angie Callwood and Johnathon Hardaway, on behalf of
themselves and their minor children, A.H and J.H., commenced this action
against eighteen defendants alleging twenty-one claims pursuant to 42
U.S.C. § 1983 and New York State law. (Am. Compl., Dkt. No. 4.) In a
Memorandum-Decision and Order dated June 1, 2020, the court granted in
part and denied in part a motion for summary judgment filed by defendants
James Meyer, Denise Timbrouck, and Tamatha Stitt (hereinafter “County
defendants”), as well as former defendants County of Ulster, Pamela
Joern, Amy Greene, Peggy Webb, and Elizabeth Culmone-Mills. (Dkt. No.
206.)
The court terminated the County, Joern, Greene, Webb, and

Culmone-Mills as defendants, and dismissed various claims against
County defendants, leaving only the following claims remaining against
them: (1) a false imprisonment claim pursuant to 42 U.S.C. § 1983 against
Meyer and Timbrouck; (2) a claim of First Amendment retaliation against
Stitt; (3) a claim of denial of the right to a fair trial pursuant to 42 U.S.C.
§ 1983 against Stitt; (4) malicious prosecution claims pursuant to 42 U.S.C.
§ 1983 and New York State law against Stitt; and (5) a conspiracy claim
pursuant to 42 U.S.C. § 1983 against Stitt. (Id. at 75-76.)
Now pending is a motion for reconsideration filed by County
defendants on June 29, 2020, in which they move the court for
reconsideration of its decision on each of the remaining claims. (Dkt.
No. 207, Attach. 1 at 6-15.) Plaintiffs filed a letter motion requesting
guidance as to whether a full response is necessary, given that County
defendants’ motion “appears to be untimely.” (Dkt. No. 210.) In response,
County defendants argue that their motion is timely pursuant to Fed. R.
Civ. P. 59(e), 60(b)(1) & (6), and that, even if their motion is untimely, the
court should still request full briefing from plaintiffs. (Dkt. No. 211.)
Motions for reconsideration are governed by Local Rule 7.1(g) which
provides, in pertinent part, “a party may file and serve a motion for
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reconsideration or reargument no later than fourteen days after the entry of
the challenged judgment, order, or decree.” N.D.N.Y. L.R. 7.1(g)
(emphasis omitted). Courts in this District routinely deny motions for
reconsideration due to a movant’s failure to comply with the timeliness
provision of Rule 7.1(g). See, e.g., Vidurek v. Cuomo, No. 1:18-CV-392,
2019 WL 2569648, at *1 (N.D.N.Y. June 21, 2019). Here, County
defendants filed their motion for reconsideration twenty-eight days after the
court issued the Memorandum-Decision and Order to which they object,
(Dkt. Nos. 206-07), making their motion untimely.
County defendants purport to invoke Fed. R. Civ. P. 60(b), but that
rule only applies to “a final judgment, order, or proceeding.” Fed. R. Civ. P.
60(b) (emphasis added); see Booker v. Griffin, No. 16-CV-00072, 2019 WL
549065, at *1 (S.D.N.Y. Feb. 11, 2019) (“The [c]ourt cannot grant [p]laintiff
relief from the December [o]rder under Rule 60(b) because the December
[o]rder is not a final judgment.” (citation omitted)). “A final judgment or
order is one that conclusively determines all pending claims of all the
parties to the litigation, leaving nothing for the court to do but execute its
decision.” Petrello v. White, 533 F.3d 110, 113 (2d Cir. 2008) (citation
omitted).
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Because the order at issue granted in part and denied in part a
motion for summary judgment, and, thus, was not a final order, Rule 60
does not cure County defendants’ untimeliness. See Kaufman v. Columbia
Mem’l Hosp., No. 1:11-CV-667, 2014 WL 2776662, at *1 (N.D.N.Y. June
19, 2014) (“Rule 60 does not apply to the instant motions because the
order in question is not a final one as it partially denied the motion for
summary judgment. Rather, the instant motions for reconsideration are
governed by . . . Local Rule 7.1(g).” (citation omitted)). Accordingly,
County defendants’ motion for reconsideration, (Dkt. No. 207), is denied.1
Accordingly, it is hereby
ORDERED that County defendants’ motion for reconsideration (Dkt.
No. 207) is DENIED; and it is further

1

In any event, while the court is aware that a full response from
plaintiffs’ has not been filed, it has viewed County defendant’s
submissions, and, even if the motion was timely filed, it is meritless.
Nothing in County defendants’ motion offers a valid ground for
reconsidering the court’s order: there is no assertion that there has been
an intervening change in the controlling law or the discovery of new
evidence, nor have County defendants sufficiently established a clear
error of law or a manifest injustice that would justify reconsideration. See
Shaughnessy v. Garrett, No. 5:06-CV-103, 2011 WL 1213167, at *1
(N.D.N.Y. Mar. 31, 2011). Instead, County defendants improperly seek
“solely to relitigate [issues] already decided.” See Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
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ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
July 2, 2020
Albany, New York

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