Petty v. New York City et al
Filing
73
OPINION AND ORDER: Plaintiff's motion for reconsideration is denied. The Clerk of Court is directed to terminate the motion at Docket Entry 70. (Signed by Judge Katherine Polk Failla on 12/22/2014) Copies Mailed By Chambers. (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DARREN LAWRENCE PETTY,
:
:
Plaintiff,
:
:
v.
:
:
CITY OF NEW YORK, et al.,
:
:
Defendants. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: December 22, 2014
______________
10 Civ. 8581 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
By Opinion and Order dated November 25, 2014, the Court granted
Defendants’ motion for summary judgment in its entirety. See Petty v. City of
New York, No. 10 Civ. 8581 (KPF), 2014 WL 6674446 (S.D.N.Y. Nov. 25, 2014). 1
Among other things, the Court found that (i) Plaintiff could not properly
continue with his claims against the individual defendants (Opinion 19-20);
(ii) Plaintiff’s discrimination claims were procedurally barred (id. at 20-28);
(iii) Plaintiff had failed to present evidence sufficient to sustain his retaliation
claims (id. at 29-32); and (iv) Plaintiff had failed to establish a due process
violation (id. at 35-36). Plaintiff then filed a motion for reconsideration, which
the Court has considered pursuant to Rule 6.3 of the Local Rules of the United
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Familiarity with the facts detailed, and conclusions reached, in the Court’s November
25, 2014 Opinion and Order (the “Opinion”) is assumed. Plaintiff submitted two
memoranda in support of his application for reconsideration, each of which was
accompanied by several exhibits; these memoranda were docketed as a single entry in
the Court’s electronic case filing (“ECF”) system (Dkt. #70). Plaintiff’s reconsideration
papers will be referred to using the document- and page-numbering conventions used
by ECF. Plaintiff’s submission in connection with the previous motion for summary
judgment is referred to as “Pl. Opp.”
States District Courts for the Southern and Eastern Districts of New York. For
the reasons set forth in the remainder of this Opinion, the motion is denied.
APPLICABLE LAW
“The decision to grant or deny a motion for reconsideration is within the
sound discretion of the district court.” In re Optimal U.S. Litig., 813 F. Supp.
2d 383, 387 n.6 (S.D.N.Y. 2011) (quoting Patterson v. United States, No. 04 Civ.
3140 (WHP), 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006)). Under Local
Rule 6.3, the moving party must “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) (internal citations omitted) (noting that the
standard for granting motions for reconsideration is “strict”). “A motion for
reconsideration may not be used to advance new facts, issues or arguments
not previously presented to the Court, nor may it be used as a vehicle for
relitigating issues already decided by the Court.” Davidson v. Scully, 172 F.
Supp. 2d 458, 461 (S.D.N.Y. 2001) (citing Shrader, 70 F.3d at 257). Such a
motion should not be made to “reflexively [] reargue those issues already
considered when a party does not like the way the original motion was
resolved.” In re Optimal U.S. Litig., 813 F. Supp. 2d at 387 (quoting Makas v.
Orlando, No. 06 Civ. 14305 (DAB) (AJP), 2008 WL 2139131, at *1 (S.D.N.Y. May
19, 2008) (internal quotation marks omitted)). Above all, “[r]econsideration of a
court’s previous order is an ‘extraordinary remedy to be employed sparingly in
the interests of finality and conservation of scarce judicial resources.’” Parrish
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v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (quoting In re Health
Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)).
DISCUSSION
The instant motion for reconsideration is not predicated on any
controlling decisions the Court overlooked, nor has there been an intervening
change in the law. Rather, Plaintiff renews three arguments that were
considered, and rejected, in the original summary judgment motion. He also,
for the first time in this motion, takes issue with certain facts on which the
Court relied in resolving the prior motion.
Echoing his summary judgment opposition, Plaintiff argues that
equitable tolling is warranted (and, by extension, that his discrimination claims
are not time-barred) because Defendants failed to establish that any of the
three disqualification letters was sent to him. (Dkt. #70 at 1-22; Dkt. #70-1 at
1-20). Plaintiff again focuses on the possibility that postage was affixed to the
letters using a private postage meter that could be, and in Plaintiff’s estimation
was, subject to manipulation. (Id.). Identical arguments were raised Plaintiff’s
opposition papers (see Pl. Opp. 4-5 and Ex. 3 (Dkt. #45)), and the exhibits
submitted in connection with the reconsideration motion do not present a basis
to alter the Court’s decision. For starters, several of these exhibits are not
relevant to the issues at hand, including the memorandum of the Office of
Chief Counsel of the Internal Revenue Service. (Dkt. #70 at 3-4). More to the
point, the Court has reviewed the envelopes of the relevant mailings (see
Declaration of Cindy Switzer (Dkt. #39), Ex. G at D650, Ex. K at D646, Ex. O at
D656, Ex. U at D869), and finds that no reasonable jury could conclude that
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any of the postmarks was in any way subject to manipulation. (See Opinion
27-28). Indeed, one of Plaintiff’s exhibits to his reconsideration motion
underscores this point: an excerpt from the Pacific Business News, which
discusses modernization by the U.S. Postal Service of its postage meters, notes
that older, “letter-press” meters were being replaced with inkjet-print meters
and bar coding precisely in order to reduce the possibility of date manipulation.
(Dkt. #70-1 at 6). All but one of the envelopes in this case have postage affixed
by an inkjet-print meter and a related bar code.
Plaintiff’s other reconsideration arguments fare no better. First, Plaintiff
takes issue with the Court’s conclusion of procedural bar based on his failure
to exhaust administrative remedies. (Dkt. #70 at 1). Specifically, he notes that
he filed the instant action within 90 days of receiving his right to sue letter.
However, as made clear in the Opinion (Opinion 20-25), the Court’s conclusion
was grounded in the fact that Plaintiff’s complaint to the New York State
Division of Human Rights included only a claim of discrimination based on his
arrest record, and did not — explicitly or implicitly — claim discrimination
based on his race, color, or disability.
Plaintiff next claims that individuals involved with the administration of
the New York City Police Department’s (the “NYPD”) psychological tests altered
the test results. (Dkt. #70 at 1; Dkt. #70-1 at 2). Plaintiff includes no
substantiation of this argument in his exhibits to the reconsideration motion,
nor does he identify any evidence previously submitted to the Court that was
overlooked in its Opinion. Indeed, in a Scheduling Order dated December 27,
2013, the Court memorialized that Plaintiff had withdrawn his request for
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psychological testing documents, and that it would have denied the request on
relevance grounds. (Dkt. #32 (“The Court understands Plaintiff to have
withdrawn his request for the NYPD Psychological Testing Documents, based
on his statements at the December 20 conference. In any event, the request for
production is denied on the ground that these documents have not been shown
to be relevant to any claim or defense being asserted in this action, see Fed. R.
Civ. P. 26(b)(1), as Plaintiff has represented that he is only seeking to challenge,
as discriminatory or retaliatory, the results of the psychologist interviews, not
the more formal psychological testing conducted by the NYPD.”)). In any event,
such evidence would have gone to Plaintiff’s discrimination claims, which the
Court found to be procedurally barred on various bases.
Plaintiff also claims that the NYPD violated the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12112 to 12117 (the “ADA”), by
subjecting him to pre-employment medical and/or psychological screening
prior to giving him a conditional offer of employment. (Dkt. #70 at 1; Dkt. #701 at 2). This claim, however, was not raised in Plaintiff’s opposition papers, nor
was it raised in his complaint. (Cf. Dkt. #2 (Complaint); Dkt. #45 (Pl. Opp.)). It
cannot therefore be raised in a motion for reconsideration. See Deng v. 278
Gramercy Park Grp., LLC, No. 12 Civ. 7803 (DLC), 2014 WL 4996255, at *1
(S.D.N.Y. Oct. 7, 2014) (“[A] party moving for reconsideration may not advance
new facts, issues, or arguments not previously presented to the Court.”
(quotation marks and citation omitted)); see generally Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 53 (2d Cir. 2012) (stating that the Second
Circuit “generally will not consider an argument on appeal that was raised for
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the first time below in a motion for reconsideration” (quotation marks and
alteration omitted)).
Finally, Plaintiff has submitted pages from the Court’s Opinion that he
has annotated and/or highlighted. (See, e.g., Dkt. #70-1 at 3, 21, 23, 27;
Dkt. #70-2 at 1, 6-7, 10, 12-13, 20). For certain of these annotations, it
appears that Plaintiff is challenging factual findings made by the Court. (See
generally Dkt. #70-1 at 2). None of the annotations, however, provides support
for reconsideration of the Court’s decision. To the extent Plaintiff is challenging
certain factual assertions that were originally made in Defendants’ Statement
of Undisputed Facts pursuant to Local Rule 56.1, such challenges cannot be
made in the context of a motion for reconsideration. That said, and as noted in
the Opinion, the Court did undertake an independent review of the record
before accepting the factual assertions made by Defendants. (See Opinion 2
n.1). See Hayes v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 406 n.1 (S.D.N.Y.
2012) (“In light of Plaintiff’s pro se status, the Court overlooks his failure to file
a Local Rule 56.1 Statement and conducts its own independent review of the
record.”). And with particular respect to the purported divergence in
statements by Deputy Director Marvell to Plaintiff in connection with his 2009
renewed application to the New York City Department of Correction (see
Dkt. #70-1 at 2, 21-22 (comparing Opinion 10-12 with New York State Division
of Human Rights file excerpt)), any divergence in statements was immaterial
because the Court adopted the version that was more favorable to Plaintiff’s
arguments. Setting to the side these annotations, Plaintiff has not submitted
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any evidence calling the Court’s factual findings — or its legal conclusions —
into question. For this reason as well, Plaintiff’s reconsideration motion fails.
CONCLUSION
Plaintiff’s motion for reconsideration is denied. The Clerk of Court is
directed to terminate the motion at Docket Entry 70.
SO ORDERED.
Dated: December 22, 2014
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Darren Lawrence Petty
1699 Chattam Parkway
Apt. 1421-A
Savannah, GA 31405
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