Humbach v. Canon et al

Filing 152

OPINION & ORDER re: 84 MOTION for Reconsideration filed by Miriam Humbach. For the foregoing reasons, Plaintiff's motion for reconsideration is DENIED. The Court respectfully directs the Clerk to terminate the motion at ECF No. 84. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 6/30/2016) Copies Mailed By Chambers. (mml)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERL'T DISTRICT OF NEW YORK

DOC#:
DATE F-IL_E_D_:-(e-.+13<>-fr-z.-';-,<.':".

MIRIAl\1 RUMBACH,

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Plaintiff,
13-cv-2512 (NSR)
-againstOPINION & ORDER
DANIEL CAl'JON et al.,
Defendants.

NELSON S. ROMAN, United States District Judge
On November 12, 2014, the Court issued an Opinion & Order (Docket No. 81, the
"November Opinion"), dismissing pursuant to Fed.R.Civ.P. 12(b)(6) all claims against: (1)
Defendant James Infantino, and (2) Michael Kirsch, Barbara Zanato, Debbie Alspach, Kathleen
Campanaro, Deborah Lenaghan, Eileen Kelly, Lisa Tighe, Marisa Boniella, and Joseph Keams
(the "District Defendants"). The Court also dismissed claims for malicious prosecution and
entrapment against Defendants Daniel Canon, James M. Dumser, Robert Chiappone, D .P.
Corrado, and Ernesto Giraldez (the "Police Defendants"). Claims for excessive force and false
arrest against the Police Defendants survived. Before the Comt is Plaintiffs motion for
reconsideration of the November Opinion. For the following reasons, Plaintiffs motion is
DENIED.
BACKGROUND
The Court assumes familiarity with the facts of the case and the substance of the
November Opinion.
Plaintiff asserts that the Cou1t overlooked certain factual matters and was "given
erroneous information," (Pl.'s Mot. Recons. at 1), which would reasonably be expected to have

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Chambers ofNclson S. Roman, U.S.D:J.

led to a different ruling had they been considered. Plaintiff alleges that the evidence the Court
used contained errors including the actual disposition of her case and the extent of her injuries.
Additionally, Plaintiff alleges the presence of new evidence not previously considered including
medical reports of her injuries, recordings of the police officers, and a video tape of the
altercation. (Id. at 2.) Plaintiff also alleges new claims including the illegal search of her car,
intentional harassment, and conspiracy. (Id.)
STANDARD ON A MOTION FOR RECONSIDERATION
Motions for reconsideration are governed by Local Civil Rule 6.3 and Federal Rule of
Civil Procedure 60(b). “The standard for granting a motion for reconsideration pursuant to Local
Rule 6.3 is strict.” Targum v. Citrin Cooperman & Company, LLP, No. 12-cv-6909 (SAS), 2013
WL 6188339, at * 1 (S.D.N.Y. Nov. 25, 2013). Motions for reconsideration are “addressed to the
sound discretion of the district court and are generally granted only upon a showing of
exceptional circumstances.” Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir.
1990). A motion to reconsider “is not a vehicle for ... presenting the case under new theories ...
or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (quotation and citation omitted); see also Nat’l Union Fire Ins.
Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St.
Martin’s Press, No. 97-cv-690 (MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000))
(Mukasey, J.) (in moving for reconsideration, “‘a party may not advance new facts, issues, or
arguments not previously presented to the Court.’”). They “‘will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked.’” Analytical
Surveys, 684 F.3d at 52 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Reconsideration of a Court’s previous order is “an extraordinary remedy to be employed

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sparingly in the interests of finality and conservation of scarce judicial resources.” In re Initial
Pub. Offering Sec. Litig, 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (internal citation and
quotation omitted), aff’d sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05-cv-3430,
05-cv-4759, & 05-cv-4760, 2006 WL 1423785, at *1 (2d Cir. 2006).
DISCUSSION
Plaintiff’s motion for reconsideration seeks to introduce newly available evidence and to
correct clear error. Plaintiff also raises issues previously addressed by the Court and new
allegations that were not contained in the original complaint.
I.

Availability of New Evidence
The documents available to the Court in the November Opinion included the Complaint,

an e-mail invitation to the breakfast and book fair, a visitor’s pass to the school, and a number of
police reports memorializing witness statements made to the police on April 21, 2010, the day of
the incident at issue. (See November Opinion at 3.) Plaintiff now asks the Court to review and
incorporate certain audio and video tapes that were not attached to her original filing. (See Pl.’s
Mot. Recons. at 3.)
The supposed new evidence that Plaintiff points to includes a tape recording where
Plaintiff alleges the Police Defendants “admit on the tape recording what they’re going to do to
me, including detaining me for a long period of time.” (Pl.’s Mot. Recons. at 2.) This tape
recording has not been presented to the Court and was not included with Plaintiff’s motion for
reconsideration. No other evidence of the existence of this tape recording has been provided.
Plaintiff’s unsupported statements are insufficient to upset the Court’s November Opinion.
Plaintiff also points to new evidence of a video tape of the incident showing the Police
Defendants “beating the Plaintiff, Police walking around the parking lot trying to find
[Plaintiff’s] car so that they can search it.” (Pl.’s Resp. Def. Opp. Mot. Recons. at 1.) Again, this
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video tape was not included with Plaintiff’s motion for reconsideration or provided to the Court
in any other manner. Accordingly, Plaintiff’s motion for reconsideration based on the purported
availability of new evidence is denied.
II.

The Need to Correct Clear Error
Plaintiff asserts that there was clear error in the Court’s November Opinion because the

Court was provided with erroneous information concerning the termination of Plaintiff’s
prosecution by an adjournment in contemplation of dismissal (“ACD”). However, Plaintiff
claims that her prosecution “was dismissed in its entirety and sealed in 2013.” (Pl.’s Mot.
Recons. at 1.)
Plaintiff asserted a malicious prosecution claim against all of the Defendants in her
complaint. A malicious prosecution claim requires “termination of the prior criminal proceeding
in favor of the accused” in order to avoid “possible conflicting determinations arising out of the
same transaction.” DiBlasio v. City of New York, 102 F.3d 654, 658 (2d Cir. 1996). Therefore,
favorable termination is required for Plaintiff’s malicious prosecution claim to survive a motion
to dismiss. Termination by ACD has been held not to constitute “a favorable termination
because it leaves open the question of the accused’s guilt.” Fulton v. Robinson, 289 F. 3d 188,
196 (2d Cir. 2002).
Plaintiff contends that because her criminal case was dismissed in its entirety and sealed,
it constitutes a favorable termination. She also states that she has written to Judge Krauss, who
presided over her case, to “get a letter of disposition.” (Pl.’s Resp. Def. Opp. Mot. Recons. at 1.)
Defendants, on the other hand, state that the prosecution was terminated pursuant to an ACD and
that they “provided the Court a copy of Plaintiff’s application annexed to, and made a part of,
Plaintiff’s complaint.” (Defs.’ Opp. Mot. Recons. at 4.)

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At this juncture, Plaintiff has not submitted, and the Court is not otherwise in possession
of, any documents or evidence substantiating Plaintiff’s claim that her case was dismissed in its
entirety, rather than by an ACD. Absent any additional information showing a different
disposition of Plaintiff’s case, the Court cannot find that it was resolved in Plaintiff’s favor, and
Plaintiff therefore fails to show clear error in the November Opinion.
Plaintiff also asserts that there was clear error when the Court considered the extent of
her injuries, as the Court did not have medical reports that showed her “substantial injuries.”
(Pl.’s Mot. Recons. at 1.) However, Plaintiff does not provide the Court with these reports to
correct the error. Even supposing these reports exist, the extent of Plaintiff’s injuries did not
play a role in the Court’s decision to dismiss her claims. Plaintiff’s claim for excessive force
survived Defendants’ motion to dismiss and would be the only claim potentially affected by
these new reports. Thus, these reports cannot show a clear error in the November Opinion.
III.

Issues Already Addressed by the Court
Plaintiff raises a number of other issues in support of her motion for reconsideration, but

these issues were already addressed by the Court in the November Opinion, including that: (1)
Mr. Infantino called the school and made “false statements,” (Pl.’s Mot. Recons. at 1); (2) the
District Defendants watched the Police Defendants and therefore “had a hand in [Plaintiff’s]
confinement,” (id. at 2); and (3) the Police Defendants did not have probable cause to arrest her.
(Id.) The first two arguments were fully considered by the Court and Plaintiff fails to raise any
new information for the Court’s consideration. See Analytical Surveys, Inc. v. Tonga Partners,
L.P., 684 F.3d 36, 52 (2d Cir. 2012) (Plaintiff is not entitled to take “a second bite of the
apple.”). The final argument relates to a claim that was not dismissed, and therefore appears not
to require reconsideration by the Court.

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IV.

New Claims
Plaintiff also alleges new claims for illegal search, intentional harassment, and conspiracy

in her motion for reconsideration. (Id.) Plaintiff is not, however, permitted to allege new claims

in a motion for reconsideration. See Polsby, 2000 WL 98057, at* 1 (in moving for
reconsideration, '"a party may not advance new facts, issues, or arguments not previously
presented to the Court."'). She may, of course, seek leave to amend her Complaint in accordance
with the Federal Rules of Civil Procedure and this Court's Local Civil Rules and Individual
Practices.

CONCLUSION
For the foregoing reasons, Plaintiffs motion for reconsideration is DENIED. The Court
respectfully directs the Clerk to terminate the motion at ECF No. 84.

Dated:

SO ORDERED:

June 29, 2016
White Plains, New York

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United States District Judge

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