Fallman v. Hotel Insider, Ltd. et al

Filing 89

MEMORANDUM OPINION AND ORDER: On October 7, 2016, Carlos Fallmans complaint against Hans Philippe Kjellgren was dismissed for failure to serve. Fallman v. Hotel Insider, Ltd., No. 14-cv-10140 (DLC), 2016 WL 5875031 (S.D.N.Y. Oct. 7, 2016). The plaintiffs letter of October 21 requests reconsideration. The application is denied...... (Signed by Judge Denise L. Cote on 10/25/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
CARLOS FALLMAN,
:
Plaintiff,
:
:
-v:
:
HOTEL INSIDER, LTD., AXEL SODERBERG and:
HANS PHILIPPE KJELLGREN,
:
:
Defendants.
:
:
-------------------------------------- X

14cv10140 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On October 7, 2016, Carlos Fallman’s complaint against Hans
Philippe Kjellgren was dismissed for failure to serve.

Fallman

v. Hotel Insider, Ltd., No. 14-cv-10140 (DLC), 2016 WL 5875031
(S.D.N.Y. Oct. 7, 2016).
requests reconsideration.

The plaintiff’s letter of October 21
The application is denied.

Local Civil Rule 6.3 requires a request for reconsideration
to be made “within fourteen (14) days” through a “notice of
motion” accompanied by “a memorandum setting forth concisely the
matters or controlling decisions which counsel believes the Court
has overlooked.”

The Rule also directs that “[n]o affidavits

shall be filed by any party unless directed by the Court.”
Fallman’s October 21 letter does not adhere to Rule 6.3: It does
not include a notice of motion or a memorandum, and includes an

affidavit without direction by the Court.

It also does not set

forth the standard for reconsideration.
The standard for granting a motion for reconsideration is
“strict.”

Analytical Surveys, Inc. v. Tonga Partners, L.P., 684

F.3d 36, 52 (2d Cir. 2012) (citation omitted) (discussing a
motion under Rule 59(e), Fed. R. Civ. P.).

“[R]econsideration

will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked.”
(citation omitted).

Id.

It 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.”

Id. (citation omitted).

Fallman’s letter does not meet the standard for
reconsideration.

It cites no authority or controlling opinion

overlooked by this Court.

Nor does it point to any decisive fact

in the record that the Court overlooked.

Fallman instead seeks

to relitigate the case by arguing anew that the CertificateAttestation (the “Certificate”) established prima facie evidence
that service was proper, an argument this Court has already
rejected.
Fallman’s letter also argues for the first time that an
evidentiary hearing is necessary to resolve what he describes as
a “factual dispute” about service.

Reconsideration is not an

opportunity to present the case under new theories, but even if
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it were, an evidentiary hearing is not warranted.

If the

Certificate stated that Kjellgren was served in person at the
correct address, and Kjellgren submitted an affidavit denying
that he was ever served, that would be a factual dispute
requiring an evidentiary hearing.

See Davis v. Musler, 713 F.2d

907, 914 (2d Cir. 1983) (evidentiary hearing necessary when
process server’s affidavit stated that he personally served the
defendants at their home, and the defendants submitted affidavits
swearing that they had not been home at the time of the alleged
service).

But there is no factual dispute warranting a hearing

where the Certificate states that Kjellgren was served at an
address at which he does not work or reside, and Kjellgren’s
affidavit denies service.

If anything, the Certificate creates a

prima facie presumption that service was not completed.
Fallman requests in the alternative, and for the first time,
that he be granted an opportunity to re-serve Kjellgren.

This

argument was anticipated and rejected in the October 7 Opinion
and Order, which broadly construed Fallman’s request for “just
and proper” relief.

To justify a discretionary extension, “the

plaintiff must ordinarily advance some colorable excuse for
neglect.”
2007).

Zapata v. City of New York, 502 F.3d 192, 198 (2d Cir.

Fallman demonstrated neither good cause nor a colorable

excuse for the failure of service.

After naming Kjellgren in his

first complaint, Fallman made no attempt to serve him for
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seventeen months; three months elapsed between Fallman’s first
attempt to file the third amended complaint and the failed effort
to serve Kjellgren; and after the failed attempt, Fallman made no
attempt to address the process server’s error, which was plain on
the face of the Certificate.

Accordingly, and for each of these

reasons, it is hereby
ORDERED that Fallman’s October 21, 2016 request for
reconsideration is denied.

Dated:

New York, New York
October 25, 2016
__________________________________
DENISE COTE
United States District Judge

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