Atuegwe v. Internal Revenue Service et al
Filing
86
OPINION AND ORDER: Accordingly, the Court denies Ms. Atuegwu's motion to vacate the Dismissal Decision. That decision stands and this case remains closed. The Clerk of Court is respectfully directed to mail this order to plaintiff at the addresses on file. (Signed by Judge Paul A. Engelmayer on 9/28/2020) (jwh) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHINWE ATUEGWU,
-v-
Plaintiff,
UNITED STATES OF AMERICA
18 Civ. 1518 (PAE) (SN)
OPINION AND ORDER
Defendant.
PAUL A. ENGELMAYER, District Judge:
In an opinion and order issued May 8, 2019, the Court dismissed pro se plaintiff Chinwe
Atuegwu’s claims. See Dkt. 69 (“Dismissal Decision”). Ms. Atuegwu had brought an action
under 26 U.S.C. § 7422 to recover a tax refund and nearly $3 million in damages for the 2013 tax
year. Dkt. 1. Thereafter, however, Ms. Atuegwu repeatedly failed to attend a deposition at the
U.S. Attorney’s Office in Manhattan, in violation of court orders directing her to do so.
Dismissal Decision. The Government accordingly sought leave to move to dismiss for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b). Dkt. 50. After receiving such
leave, the Government filed such a motion on April 12, 2019, Dkt. 65–68, which Ms. Atuegwu
did not oppose, and which this Court, in its Dismissal Decision, granted. See Dismissal
Decision.
On September 4, 2019, Ms. Atuegwu informed the Court that, beginning April 7, 2019,
she had been detained at Essex County Jail and Union County Jail. Dkt. 74. Consistent with this
explanation, on September 10, 2019, counsel for the Government received, via U.S. mail, the
copies of the motion to dismiss papers it had previously served on Ms. Atuegwu, marked as
“return to sender.” See Dkt. 75. The following day, the Government served Ms. Atuegwu with
those papers at her new address. See id. In response, Ms. Atuegwu explained that, due to her
incarceration, it was not until September 11, 2019, that she had received the Court’s order
granting the Government leave to file the motion, and it was not until September 16, 2019, that
she had received the Government’s motion to dismiss, and for those reasons had not responded
to the Government’s April 12 motion to dismiss. See Dkt. 77 (“Pl. Mtn.”).
In light of Ms. Atuegwu’s demonstrated lack of notice of the Government’s motion to
dismiss, on September 12, 2019, this Court granted her an opportunity to seek relief from the
Dismissal Decision. See Dkt. 79. On September 30, 2020, Ms. Atuegwu filed a motion to
reconsider and vacate the order. Pl. Mtn.
In support, Ms. Atuegwu first argues that her claims should not be dismissed for failure
to prosecute because the Government did not suffer any prejudice from her repeated refusals to
appear for a deposition by oral examination. That is because, she argues, the Government could
alternatively have deposed her by written questions under Federal Rule of Civil
Procedure 31(a)(1). Id. Second, Ms. Atuegwu claims that the lack of a deposition did not
prejudice the Government, because its goal in pursuing those depositions was to determine how
she had calculated her educational tax credits, but she had already explained to a different
Government counsel how she had arrived at those calculations. Id. Third, Ms. Atuegwu
challenges the finding of the Hon. Sarah Netburn, United States Magistrate Judge, to whom this
case was referred for general pretrial supervision, that Ms. Atuegwu’s proffered medical
concerns did not excuse her from attending her deposition. Id.
The Government has responded, stating that Ms. Atuegwu’s new motion articulates no
basis for reopening this case. Dkt. 81.
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The Court assumes familiarity with the facts and procedural history of this case, as
described in the Court’s Dismissal Decision, and describes only those facts necessary for the
resolution of this motion.
I.
Applicable Legal Standards
The standard governing motions for reconsideration “is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked.” Analytical Survs., Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(citation omitted); see also S.D.N.Y. Local Civil Rule 6.3 (requiring the movant to “set[] forth
concisely the matters or controlling decisions which counsel believe the court has overlooked”).
A motion for reconsideration “is neither an occasion for repeating old arguments previously
rejected nor an opportunity for making new arguments that could have been previously
advanced.” Associated Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005).
Rather, reconsideration is appropriate “only when the [moving party] identifies an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or
prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr.,
729 F.3d 99, 104 (2d Cir. 2013) (citation omitted).
II.
Discussion
This Court finds reconsideration appropriate here because, due to her incarceration, Ms.
Atuegwu did not timely receive the Government’s motion to dismiss and thus was not previously
able to be heard in response to the Government’s motion. Nevertheless, Ms. Atuegwu has failed
to demonstrate any error in the Court’s analysis in the Dismissal Decision, any controlling case
law that the Court overlooked, or any other reason that the Court should vacate its order
dismissing the case. See Dismissal Decision.
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First, although Ms. Atuegwu argues that the Government did not suffer prejudice from
her refusal to appear because it could instead have deposed her by written questions under
Rule 31(a)(1), she has failed to identify any authority that gave her the right to dictate the manner
in which the Government deposed her. See Pl. Mtn. As this Court has explained, Rule 30(a)(1)
permitted the Government, the defendant in this case, to take the oral deposition of the opposing
party without leave from the Court. Dkt. 64. The Government had the right to elect to pursue
that means of pretrial discovery. And Judge Netburn, on multiple occasions, ordered Ms.
Atuegwu to appear for an oral deposition. See Dkts. 38, 45, 47, 49. Further, as this Court
recognized in granting the Government’s motion to dismiss for failure to prosecute, given the
nature of her Complaint, “Atuegwu’s deposition is singularly crucial in determining the factual
basis, if any, for the allegations in her Complaint.” Dismissal Decision. Atuegwu’s premise—
that she had the right to direct the Government to take her deposition through written questions
under Rule 31(a)(1), see Pl. Mtn.—is simply wrong. The Government had the right under Rule
30(a)(1) to conduct an oral deposition of Ms. Atuegwu, and Ms. Atuegwu’s contrary view did
not give her the right to violate Judge Netburn’s repeated orders to sit for such a deposition.
Ms. Atuegwu’s notion that the Government forfeited its right under Rule 30(a)(1) to
insist upon an oral deposition because she had earlier communicated informally with an Internal
Revenue Service attorney, see id., is also baseless. Ms. Atuegwu argues that because that
attorney had thereby informally learned of the method by which Ms. Atuegwu had calculated her
educational tax credits, her deposition testimony was not necessary. See id. But there is no
charter in the Federal Rules for Ms. Atuegwu’s claim of forfeiture. On the contrary, as the
Government points out, pretrial motions, and trial, require counsel to obtain admissible evidence
in discovery, such as the opposing party’s sworn statements in a deposition. See Dkt. 81; see
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also Fed. R. Civ. P. 56(c)(2) (“[A] party may object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in evidence.”). And litigation
counsel commonly conduct pretrial factual investigations by informal communications before
formally questioning witnesses. The two are not, under the Federal Rules, mutually exclusive.
Finally, Ms. Atuegwu challenges Judge Netburn’s determination that her asserted
medical concerns did not excuse her from attending a deposition. See Pl. Mtn. That argument
also fails. On February 7, 2019, Judge Netburn ordered Ms. Atuegwu to appear for a deposition
before February 25, 2019, unless she demonstrated that a genuine medical issue prevented her
from attending the deposition. Dkt. 45. On February 14, 2019, Ms. Atuegwu informed the Court
that she could not attend the deposition for medical reasons, as she was experiencing “pains in
[her] wrist.” Dkt. 46 at 1. Judge Netburn, however, found that Ms. Atuegwu’s medical claim—
wrist pain that made it difficult to carry a bag and for which Ms. Atuegwu had been prescribed
Tylenol—did not supply good cause to adjourn the deposition, particularly given Ms. Atuegwu’s
by-then established history of refusing to appear for her deposition. Dkt. 47. Judge Netburn did
not err in this finding. On this occasion—as on the other three prior occasions when Judge
Netburn had ordered Ms. Atuegwu to appear for her deposition—there was no good cause for
Ms. Atuegwu’s refusal to attend the deposition. See Dkts. 38, 45, 47, 49.
Accordingly, the Court denies Ms. Atuegwu’s motion to vacate the Dismissal Decision.
That decision stands and this case remains closed. The Clerk of Court is respectfully directed to
mail this order to plaintiff at the addresses on file.
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PaJA.�
SO ORDERED.
____________________________
Paul A. Engelmayer
United States District Judge
Dated: September 28, 2020
New York, New York
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