Rodriguez v. City of New York et al

Filing 65

ORDER granting 57 Letter Motion for Conference ; denying 61 Motion for Reconsideration. this case, it is hereby ORDERED that plaintiff's motion, styled as a motion for reconsideration, is denied; however, it is further ORDERED t hat plaintiff is granted leave to file, within 21 days of today's date, a motion to amend his first amended complaint. The Clerk of Court is respectfully directed to terminate the motions pending at ECF Nos. 57 and 61.So Ordered. (Signed by Judge Naomi Reice Buchwald on 8/27/2020) (js)

Case 1:18-cv-04805-NRB Document 65 Filed 08/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
GIOVANNI RODRIGUEZ (a/k/a King Karrot),
Plaintiff,

O R D E R

- against -

18 Civ. 4805 (NRB)

THE CITY OF NEW YORK et al.,
Defendants.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
WHEREAS on March 9, 2020, this Court issued a Memorandum and
Order that granted in part and denied in part defendants’ partial
motion to dismiss plaintiff’s first amended complaint, see ECF No.
51; and
WHEREAS plaintiff thereafter filed a proposed second amended
complaint that by all appearances sought to (1) replead claims
that the Court previously had dismissed with prejudice (i.e.,
plaintiff’s state constitutional and Monell claims); 1 (2) add two
new causes of action pursuant to 42 U.S.C. § 1983; and (3) add
five additional parties as defendants, see ECF No. 53; and

1

Plaintiff’s counsel has since indicated that he was not attempting to
replead the Monell claim but that he was seeking only to preserve his right to
appeal the Court’s previous ruling dismissing that claim. See ECF No. 57, ECF
No. 62 at 7. To the extent that was plaintiff’s counsel’s intention –- and
even assuming that repleading the Monell claim in an amended complaint was in
fact necessary to preserve his right to appeal the dismissal of that claim,
which the Court maintains it was not –- that intention was nowhere indicated
either in plaintiff’s proposed amended complaint or his related filings.

1

Case 1:18-cv-04805-NRB Document 65 Filed 08/27/20 Page 2 of 3

WHEREAS by letter dated July 17, 2020, this Court explained
that, due to apparent deficiencies in the proposed second amended
complaint, the proposed pleading required briefing by way of a
formal motion seeking leave to file a second amended complaint,
see ECF No. 56; and
WHEREAS in response to the Court’s July 17, 2020 letter,
plaintiff’s

counsel

filed

a

pre-motion

letter

concerning

a

proposed motion pursuant to Federal Rules of Civil Procedure 59(e)
and/or 60 for reconsideration of the Court’s July 17, 2020 letter
or,

alternatively,

seeking

leave

to

amend

the

First

Amended

Complaint pursuant to Rule 15 of the Federal Rules of Civil
Procedure, see ECF No. 57; and
WHEREAS prior to receiving a response to his pre-motion letter
either from defense counsel or the Court, plaintiff’s counsel filed
a memorandum of law, purportedly pursuant to Federal Rules of Civil
Procedure

59(e)

and

60

and

Local

Civil

Rule

6.3,

for

reconsideration of the Court’s July 17, 2020 letter, see ECF No.
58; and
WHEREAS counsel for defendants subsequently filed a letter
detailing their opposition to plaintiff’s proposed amendments, see
ECF No. 60; and
WHEREAS even assuming, arguendo, that plaintiff’s purported
motion for reconsideration of this Court’s July 17, 2020 letter

2

Case 1:18-cv-04805-NRB Document 65 Filed 08/27/20 Page 3 of 3

was procedurally proper, 2 the reasoning underlying said motion was
predicated upon defense counsel having consented to the proposed
amendments, see ECF No. 62; and
WHEREAS defense counsel’s most recent filing indicates that
defendants do not so consent, see ECF No. 60, and therefore that
the

reasoning

underlying

plaintiff’s

purported

motion

for

reconsideration is inapplicable to the facts and circumstances of
this case, it is hereby
ORDERED that plaintiff’s motion, styled as a motion for
reconsideration, is denied; however, it is further
ORDERED that plaintiff is granted leave to file, within 21
days

of

today’s

complaint.

The

date,

a

motion

to

amend

his

first

Clerk

of

Court

is

respectfully

amended

directed

to

terminate the motions pending at ECF Nos. 57 and 61.
SO ORDERED.
Dated:

New York, New York
August 27, 2020
___________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

2 By their terms, neither Rule 60(b), which governs final judgments, nor
Rule 59(e), which is used to alter or amend a judgment, explicitly controls
where, as here, the “decision” being challenged was not a “judgment” at all but
rather a letter from the Court declining to endorse a proposed stipulation
absent additional explanation and/or briefing.

3