Zappin v. Comfort et al
Filing
197
OPINION AND ORDER re: 190 MOTION for Reconsideration of the Court's September 30, 2022 Order filed by Anthony Zappin, 192 MOTION to Vacate the Court's September 30, 2022 Pre-Filing Injunction filed by Anth ony Zappin. For the reasons set forth above, Plaintiff's motion for reconsideration and motion to vacate are DENIED. The Clerk of Court is respectfully requested to terminate the pending motions at ECF Nos. 190 and 192. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 9/11/2023) (vfr)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANTHONY ZAPPIN
Plaintiff,
-against-
18-CV-1693 (ALC)
OPINION AND ORDER
CLAIRE COMFORT, et al.,
Defendants.
ANDREW L. CARTER, JR., United States District Judge:
Pending before the Court are Plaintiff Anthony Zappin’s Motion for Reconsideration (ECF
No. 190) and Motion to Vacate the Court’s September 30, 2022 Pre-Filing Injunction Order (ECF
No. 193). For the reasons that follow, both motions are DENIED.
BACKGROUND
The Court assumes the parties’ familiarity with the factual background and procedural
history of this case as was thoroughly laid out in Magistrate Judge Ona T. Wang’s Report &
Recommendation. (“R&R”, ECF No. 185.)
Defendants moved to dismiss the TAC (ECF Nos. 178–183), which the Court referred to
Judge Wang for report and recommendation (ECF No. 184). Plaintiff did not file any opposition
papers to the motion to dismiss. 1 Judge Wang issued her R&R on August 29, 2022, recommending
that the TAC be dismissed in its entirety for lack of subject matter jurisdiction under the domestic
relations exception to diversity jurisdiction and under the Rooker-Feldman doctrine. (ECF No.
185.) In the alternative, Judge Wang recommended that the TAC be dismissed for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). She also recommended that the Court
1
Plaintiff asserts that he timely mailed his opposition papers to the Pro Se Office, but that they
were never docketed. (ECF No. 186 at 20.)
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grant Defendant Cohen’s request for the Court to issue a pre-filing injunction that would prevent
Plaintiff from filing further federal actions flowing from the underlying state custody action and
the state disciplinary and fee proceedings without prior court approval. (Id.)
Plaintiff filed objections to the R&R on September 13, 2022. (ECF No. 186.) Defendants
filed their responses to the objection on September 26, 2022. (ECF No. 187.) After reviewing the
objections and responses, the Court adopted Judge Wang’s R&R in full on September 30, 2022,
and this action was closed. (ECF No. 188.)
Thereafter, on October 14, 2022, Plaintiff filed a motion for reconsideration of the Court’s
order adopting the R&R (ECF Nos. 190, 191), and a motion to vacate the Court’s September 30,
2022 Pre-Filing Injunction Order (ECF No. 192.) Defendants filed a memorandum of law in
opposition to both motions on October 28, 2022. (ECF No. 193.)
On August 28, 2023, the Court alerted Plaintiff that he never filed a memorandum of law
in support of his motion to vacate the Court’s September 30, 2022 Pre-Filing Injunction. (ECF
No. 194.) Plaintiff filed a letter on August 31, indicating that he was attempting to locate his
memorandum of law in his computer files, and requested an extension to file the missing
memorandum by September 5, 2023. (ECF No. 195.) Plaintiff indicated that if he was unable to
locate his memorandum of law, he would voluntarily withdraw the motion to vacate. (Id.) To
date, Plaintiff has not filed his memorandum of law in support of the motion to vacate.
DISCUSSION
I.
Motion for Reconsideration
“A motion for reconsideration is an extraordinary remedy to be employed sparingly in the
interests of finality and conservation of scarce judicial resources.” Walker v. Carter, 2016 WL
6820554, *2 (S.D.N.Y. Feb. 4, 2016) (citing Drapkin v. Mafco Consol. Grp., Inc., 818 F. Supp. 2d
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678, 695 (S.D.N.Y. 2011)). A court will grant such a motion in only three circumstances: where
the party seeking reconsideration identified (1) an intervening change of controlling law; (2) the
availability of new law; or (3) the need to correct a clear error or prevent manifest injustice. See
Berg v. Kelly, 343 F. Supp. 3d 419, 424 (S.D.N.Y. 2018) (citing Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013)). It is not simply an
opportunity for the moving party to present “the case under new theories” or otherwise take a
“second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d
Cir. 2012); see also Svenningsen v. Ultimate Grounds Management, Inc., 2017 WL 3105871, *1
(S.D.N.Y. July 20, 2017).
The standard for granting such a motion is strict, and the decision to grant or deny a motion
for reconsideration is one committed to the discretion of the district court. Salveson v. JP Morgan
Chase & Co., 663 Fed.App’x. 71, 75 (2d Cir. 2016) (internal quotations omitted); Sigmon v.
Goldman Sachs Mortgage Company, 229 F.Supp.3d 254, 257 (S.D.N.Y. 2017). In general, any
decision to grant a motion for reconsideration is one supported by a showing of exceptional
circumstances, such as controlling decisions or data that the court overlooked. Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (exceptional circumstances include matters “that
might reasonably be expected to alter the conclusion reached by the court.”); Xiu Feng Li v. Hock,
371 Fed. App’x 171, 175 (2d Cir. 2010).
Additionally, although Plaintiff is proceeding pro se, he was a practicing lawyer and is
experienced in litigation, and is thus not afforded the special solicitude generally provided to pro
se plaintiffs. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[T]he degree of solicitude
may be lessened where the particular pro se litigant is experienced in litigation and familiar with
the procedural setting presented…The ultimate extension of this reasoning is that a lawyer
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representing himself ordinarily receives no such solicitude at all.”); Zappin v. Cooper, No. 16-CV5985 (KPF), 2018 WL 708369, at *1 n.1 (S.D.N.Y. Feb. 2, 2018), aff’d, 768 F. App’x 51 (2d Cir.
2019); In re Truong, 327 F. App’x 260, 262 (2d Cir. 2009) (“Additionally, although Truong is
proceeding pro se, he is an attorney, albeit a disbarred one.”).
Here, Plaintiff argues that the Court erred in concluding that it lacked subject matter
jurisdiction over Plaintiff’s claims and that Plaintiff failed to sufficiently plead his claims. (ECF
No. 191 at 2–20.) He also argues that the Court “plainly erred” and violated his constitutional
rights when issuing the pre-filing injunction. (Id. at 20.)
Having reviewed the record and the parties’ memoranda of law, the Court concludes that
it neither overlooked a controlling issue of law nor a crucial fact in the record. Plaintiff’s motion
for reconsideration is a bald attempt to take a “second bite at the apple.” Analytical Surveys, Inc.,
684 F.3d at 52. In reaching its decision on the motion to dismiss, the Court carefully considered
Plaintiff’s objections to the R&R, including his arguments regarding the domestic relations
exception, the Rooker-Feldman doctrine, collateral estoppel, and that Plaintiff adequately pleaded
his claims for abuse of process, conspiracy to abuse process, fraud, conspiracy to commit fraud,
and his claims under N.Y. Judiciary Law § 487. As this Court has held before, “reconsideration
of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality
and conservation of scarce judicial resources.” Canfield v. SS&C Techs. Holdings, Inc., 2021 WL
1026128, at *1 (S.D.N.Y. Mar. 17, 2021). Plaintiff points to no change in controlling law,
availability of new evidence, or the need to correct a clear error, sufficient to warrant
reconsideration. See Actava TV, Inc. v. Joint Stock Co. No. 18-CV-06626 (ALC), 2023 WL
2528542, at *2 (S.D.N.Y. Mar. 15, 2023). As such, Plaintiff has failed to indicate the exceptional
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circumstances that would lead this Court to disturb its previously reached conclusions, and
Plaintiff’s motion for reconsideration is denied. See Shrader, 70 F.3d at 257.
II.
Motion to Vacate
As previously stated, Plaintiff did not file a memorandum of law in support of his motion
to vacate the Court’s September 30, 2022 Pre-Filing Injunction. (ECF No. 192; see ECF Nos.
194–196.) Accordingly, to the extent Plaintiff has not voluntarily withdrawn his motion (see ECF
No. 195), the motion is denied for failure to comply with Local Rule 7.1 (“all motions shall
include…[a] memorandum of law, setting forth the cases and other authorities relied upon in
support of the motion… [and] [s]upporting affidavits and exhibits thereto containing any factual
information and portions of the record necessary for the decision of the motion…”).
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for reconsideration and motion to vacate
are DENIED. The Clerk of Court is respectfully requested to terminate the pending motions at
ECF Nos. 190 and 192.
SO ORDERED.
Dated: September 11, 2023
New York, New York
______________________________
ANDREW L. CARTER, JR.
United States District Judge
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