Caires v. Federal Deposit Insurance Corporation

Filing 38

MEMORANDUM OPINION AND ORDER re: 35 MOTION for Leave to File. filed by Richard Caires. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the plaintiff's "request for leave" is denied. The Clerk is directed to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 6/21/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------RICHARD CAIRES,
Plaintiff,
- v.-

16-cv-02651 (JGK)
MEMORANDUM OPINION
AND ORDER

FEDERAL DEPOSIT INSURANCE
CORPORATION,
Defendant.
-----------------------------------JOHN G. KOELTL, District Judge:
This action against the Federal Deposit Insurance
Corporation (the “FDIC”) arises from the efforts by the pro se
plaintiff, Richard Caires, to track down the whereabouts of a
certain loan.
In a Memorandum Opinion and Order dated April 18, 2017,
this Court granted the FDIC’s motion pursuant to Federal Rule of
Civil Procedure 12(b)(1) to dismiss the plaintiff’s declaratory
relief claims for want of subject matter jurisdiction. Caires v.
Fed. Deposit Ins. Corp., No. 16-CV-02651 (JGK), 2017 WL 1393735,
at *6-7 (S.D.N.Y. Apr. 18, 2017). The Court also granted the
FDIC’s motion pursuant to Federal Rule of Civil Procedure
12(b)(6) to dismiss the claim under the Fourteenth Amendment of
the United States Constitution for failure to state a claim to
the extent that the Court had jurisdiction over that claim. Id.
Familiarity with that decision, and the facts, underlying
claims, and procedural history of this case is presumed.

Pursuant to the Memorandum Opinion and Order, the Clerk
entered judgment dismissing the case on April 18, 2017.
The plaintiff has filed a “request for leave.” See Dkt. 35.
Construing the pro se plaintiff’s papers liberally, the request
seeks to vacate the judgment of dismissal and reopen the case
pursuant to Rule 59(e) and Rule 60(b) of the Federal Rules of
Civil Procedure, and for leave to file an amended complaint. To
justify the applications, the plaintiff attaches a complaint
that he filed against the FDIC on May 22, 2017, in the United
States District Court for the District of Columbia. The
plaintiff argues that, in that complaint, he has asserted tort
claims against the FDIC that are unrelated to the claims
dismissed in the Memorandum Opinion and Order dated April 18,
2017. The plaintiff contends that he should be allowed to assert
those claims in this action.
For the following reasons, the plaintiff’s applications are
denied.
The motion pursuant to Federal Rule of Civil Procedure
59(e) is untimely. Motions to alter or amend a judgment pursuant
to Rule 59(e) must be brought within twenty-eight days of the
entry of the judgment. Fed. R. Civ. P. 59(e); see also Smith v.
City of N.Y., No. 12 CIV. 8131 (JGK), 2014 WL 2575778, at *1
(S.D.N.Y. June 9, 2014). The plaintiff filed the present motion
on May 22, 2017, outside the twenty-eight day window.
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In any event, the application is without merit. To justify
relief under Federal Rule of Civil Procedure 59(e), the movant
must demonstrate that the Court overlooked “controlling law or
factual matters” that had been previously put before it.
R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d 506, 509 (S.D.N.Y.
2009); Padilla v. Maersk Line, Ltd., 636 F. Supp. 2d 256, 258–59
(S.D.N.Y. 2009). “Such motions must be narrowly construed and
strictly applied in order to discourage litigants from making
repetitive arguments on issues that have been thoroughly
considered by the court.” Range Road Music, Inc. v. Music Sales
Corp., 90 F. Supp. 2d 390, 391–92 (S.D.N.Y. 2000); see also
Quinones v. N.Y. City Legal Police Dep’t, No. 14 CV. 6253 (JGK),
2014 WL 6907581, at *1 (S.D.N.Y. Dec. 6, 2014).
The plaintiff has failed to demonstrate that the Court
overlooked any controlling decisions or factual matters with
respect to the dismissed action. The proffered basis for
reopening the action is not that the Court erred in dismissing
the action, but that the plaintiff believes that he has tort
claims against the FDIC that were not previously asserted in
this action. That is not a basis to vacate the judgment.
The motion pursuant to Federal Rule of Civil Procedure
60(b) is likewise without merit. Under Federal Rule of Civil
Procedure 60(b), a party may seek relief from a district court’s
order or judgment for the following reasons:
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(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b); (3)
fraud
(whether
previously
called
intrinsic
or
extrinsic), misrepresentation, or other misconduct of
an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is
no
longer
equitable;
or
(6)
any
other
reason
justifying relief.
Construing the papers liberally, the plaintiff has not
offered a basis for relief under the first five clauses of the
Rule. Nor has the plaintiff demonstrated that he is entitled to
relief under the sixth clause. Under that clause, the movant
must show that the motion was filed within a “reasonable time”
and that “extraordinary circumstances [ ] warrant relief.” Old
Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54,
59 (2d Cir. 2002) (per curiam) (internal quotation marks
omitted). The plaintiff has not alleged any facts demonstrating
that extraordinary circumstances warrant relief under Rule
60(b)(6). See Ackermann v. United States, 340 U.S. 193, 199–202
(1950); see also Quinones, 2014 WL 6907581, at *2. The
plaintiff’s argument that he has other claims against the FDIC
is not a sufficient basis for relief.
The plaintiff’s motion for leave to file a new complaint is
also without merit. The “grant of leave to amend the pleadings
pursuant to Rule 15(a) is within the discretion of the trial

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court.” Graham v. Select Portfolio Servicing, Inc., 156 F. Supp.
3d 491, 516 (S.D.N.Y. 2016) (citations omitted). However, “as is
the case here, once judgment has been entered, ‘the filing of an
amended complaint is not permissible until judgment is set aside
or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b).’” In re
Evergreen Mut. Funds Fee Litig., 240 F.R.D. 115, 119–20
(S.D.N.Y. 2007) (quoting Nat’l Petrochemical Co. of Iran v. M/T
Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991)).
Because the plaintiff has failed to demonstrate that the
judgment should be vacated under either Rule 59(e) or Rule
60(b), it follows that he cannot file an amended complaint. In
any event, the plaintiff has failed to demonstrate that
amendment would be anything but futile. The plaintiff has failed
to show that the claims that he now seeks to assert would not be
subject to the rulings dismissing his claims in the Memorandum
Opinion and Order dated April 18, 2017, or that the proffered
allegations would now be sufficient to state a claim against the
FDIC.

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The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
plaintiff’s “request for leave” is denied. The Clerk is directed
to close all pending motions.
SO ORDERED.
Dated:

New York, New York
June 21, 2017

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

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