Ortega et al v. U.S. Department of Education et al

Filing 46

MEMORANDUM OPINION AND ORDER re: 45 MOTION to Vacate. filed by Moises Ortega. If the plaintiff wishes to pursue his claims, he should file another lawsuit, but he has failed to present any basis for the reconsideration of the dismissal without prejudice of this action. Accordingly, the motion is denied. The Clerk is directed to close all pending motions. (As further set forth in this Order.) (Signed by Judge John G. Koeltl on 5/9/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ORTEGA,

14-cv-09703 (JGK)
Plaintiff,

MEMORANDUM OPINION AND
ORDER

- against MUTT,
Defendant.
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JOHN G. KOELTL, District Judge:
On March 24, 2017, this Court in a Memorandum Order and
Opinion dismissed this action without prejudice for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b).
Ortega v. Mutt, No. 14-CV-09703 (JGK), 2017 WL 1133429, at *2
(S.D.N.Y. Mar. 24, 2017). The plaintiff has moved to reopen the
case. See Dkt. 45.
“The decision to grant or deny a motion for reconsideration
rests within the sound discretion of the district court.”
Vincent v. Money Store, No. 03 Civ. 2876 (JGK), 2011 WL 5977812,
at *1 (S.D.N.Y. Nov. 29, 2011) (internal quotation marks
omitted). “Reconsideration of a previous order by the Court is
an extraordinary remedy to be employed sparingly.” Anwar v.
Fairfield Greenwich Ltd., 800 F. Supp. 2d 571, 572 (S.D.N.Y.
2011) (internal quotation marks omitted). “The major grounds
justifying reconsideration are an intervening change of

controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.” Virgin
Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992) (internal quotation marks omitted); see also Gym
Door Repairs, Inc. v. Young Equip. Sales, Inc., No. 15-CV-4244
(JGK), 2016 WL 6652733, at *1 (S.D.N.Y. Nov. 10, 2016).
The plaintiff has presented no basis for reconsideration of
the Memorandum Order and Opinion dismissing the action. The
plaintiff does not argue that the dismissal was in error. The
gist of the plaintiff’s motion is that his claims are
meritorious. But the Court dismissed the action because the
plaintiff refused to prosecute the action. The plaintiff refused
to proceed with the lawsuit despite this Court’s repeated
warnings that the consequences would be dismissal. See Ortega,
2017 WL 1133429, at *1-2. The Court adopted the least
restrictive means of dealing with the plaintiff’s refusal to
participate in discovery, namely by dismissing the lawsuit
without prejudice. See id. at *2. If the plaintiff wishes to
pursue his claims, he should file another lawsuit, but he has
failed to present any basis for the reconsideration of the
dismissal without prejudice of this action.

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Accordingly, the motion is denied. The Clerk is directed to
close all pending motions.
SO ORDERED.
Dated:

New York, New York
May 9, 2017

____________/s/______________
John G. Koeltl
United States District Judge

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