Bennett v. Care Correction Solution Medical Contracter et al

Filing 99

OPINION AND ORDER re: 92 MOTION for Reconsideration re; 90 Clerk's Judgment filed by Donald Mack Bennett. For the reasons set forth above, Plaintiffs motion for reconsideration is denied. The Clerk of Court is respectfully requested to terminate the pending motion (Docket No. 92), and is directed to mail a copy of this Opinion and Order to the pro se Plaintiff. (Signed by Magistrate Judge Judith C. McCarthy on 9/25/2017) (Attachments: # 1 Attachment to Opinion and Order) (mml)

Dellefave v. Access Temporaries, Inc., Not Reported in F.Supp.2d (2001)
2001 WL 286771

2001 WL 286771
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Matthew B. DELLEFAVE, Plaintiff,
v.
ACCESS TEMPORARIES, INC., Steven Weinstein,
a/k/a Steven Weber, Michael Weinstein, Mark
Paul, Lawrence Paul, Ronald Axelrod, Karen
P. Druziako, John Does, 1-100 (being as yet
unidentified employees, representatives, or agents
of Access Temporaries, Access Personnel and/
or other companies owned in whole or part by
Steven Weinstein and/or Michael Weinstein), Jane
Roes, 1-100 (being as yet unidentified persons,
organizations of persons, or business entities that
hold any ownership interest in Access Temporaries,
Inc.), Peter Poes, 1-100 (being as yet unidentified
persons, organizations of persons, or business
entities that are officers and/or directors of or
are in any way involved in managing any of the
activities of Access Temporaries, Inc.), and Michael
Moes, 1-100 (being as yet unidentified persons,
organizations of persons, or business entities that
have received assets from Access Temporaries,
Inc., within the last six months), Defendants.
No. 99 CIV. 6098(RWS).
|
March 22, 2001.
Attorneys and Law Firms
Di Rienzo & Wallerstein, Fanwood, NJ, By Joseph Di
Rienzo, Esq., Of Counsel, for Plaintiff.
Jackson, Lewis, Schnitzler & Krupman, New York, By
Penny Ann Lieberman, Esq., Of Counsel, for Defendant
Access Temporaries, Inc.
Jackson, Lewis, Schnitzler & Krupman, Morristown, NJ,
By Terri L. Freeman, Esq., Of Counsel, for Defendant
Access Temporaries, Inc.
Berger Stern & Webb, New York, By Steven A. Berger,
Esq., John R. Cahill, Esq., Kenneth J. Applebaum, Esq.,
Of Counsel, for Defendant Karen P. Druziako.

OPINION
SWEET, D.J.
*1 On January 10, 2001, this Court granted judgment
on the pleadings for the defendants, ordered DelleFave
to pay Rule 11 attorneys' fees for defendant Karen
Druzakio (“Druzakio”), and denied DelleFave's motions
to amend and to compel discovery. See Dellefave v.
Access Temporaries, Inc., 99 Civ. 6098(RWS), 2001 WL
25745 (S.D.N.Y. Jan. 10, 2001) (“the January 10, 2001
opinion”). Plaintiff Matthew B. DelleFave (“DelleFave”)
has moved for reconsideration or reargument pursuant to
Local Civil Rule 6.3, to amend pursuant to Fed.R.Civ.P.
52(b) and 59(e), or for relief pursuant to Fed.R.Civ.P.
60(b)(1) and (6). Druzakio and the remaining defendants
have opposed the motion in separate briefs. For the
reasons set forth below, the motions are denied.

Discussion
I. The Applicable Legal Standards for Reargument,
Reconsideration, Amendment, or Relief
Local Rule 6.3 provides in pertinent part: “There shall be
served with the notice of motion a memorandum setting
forth concisely the matters or controlling decisions which
counsel believes the court has overlooked.” Thus, to be
entitled to reargument and reconsideration, the movant
must demonstrate that the Court overlooked controlling
decisions or factual matters that were put before it on
the underlying motion. See Ameritrust Co. Nat'l Ass'n v.
Dew, 151 F.R.D. 237, 238 (S.D.N.Y.1993); East Coast
Novelty Co. v. City of New York, 141 F.R.D. 245, 245
(S.D.N.Y.1992).
Local Rule 6.3 is to be narrowly construed and strictly
applied so as to avoid repetitive arguments on issues that
have been considered fully by the Court. In deciding a
reconsideration and reargument motion, the Court must
not allow a party to use the motion as a substitute for
appealing from a final judgment. See Morser v. AT & T
Info. Sys., 715 F.Supp. 516, 517 (S.D.N.Y.1989); Korwek
v. Hunt, 649 F.Supp. 1547, 1548 (S.D.N.Y.1986), aff'd,
827 F.2d 874 (2d Cir.1987). Therefore, a party may not
“advance new facts, issues or arguments not previously
presented to the Court.” Morse/Diesel, Inc. v. Fidelity &
Deposit Co. of Md., 768 F.Supp. 115, 116 (S.D.N.Y.1991).

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Dellefave v. Access Temporaries, Inc., Not Reported in F.Supp.2d (2001)
2001 WL 286771

The decision to grant or deny the motion is within the
sound discretion of the district court. See Schaffer v.
Soros, No. 92 Civ. 1233, 1994 WL 592891, at *1 (S.D.N.Y.
Oct. 31, 1994).
Upon receiving such a motion, a court may do any of
the following. First, the motion may be denied, thereby
leaving the original decision unaltered. See Lehmuller
v. Incorporated Village of Sag Harbor, 982 F.Supp.
132, 135 (E.D.N.Y.1997). Alternatively, “the Court can
grant a motion to reargue for the limited purposes of
considering the effect of an overlooked matter,” and
after doing so may affirm and/or clarify the original
decision. Lehmuller, 982 F.Supp. at 135-36; see In re
First American Corp., No. M8-85, 1998 WL 148421,
at *3 (S.D.N.Y. Mar. 27, 1998), aff'd, 154 F .3d 16
(2d Cir.1998); Violette v. Armonk Assocs., L.P., 823
F.Supp. 224, 226-27, 231 (S.D.N.Y.1993); Brignoli v.
Balch Hardy & Scheinman, Inc., 735 F.Supp. 100, 102-03
(S.D.N.Y.1990). Finally, having granted a motion to
reconsider, the Court may vacate the original decision. See
Morin v. Trupin, 823 F.Supp. 201, 203 (S.D.N.Y.1993);
Travelers Ins. Co. v. Buffalo Reins. Co., 739 F.Supp. 209,
211-13 (S.D.N.Y.1990).
*2 Motions for reargument in accordance with Rule
59(e) are governed by the same standards as those
governing motions under Local Rule 6.3. See Candelaria
v. Coughlin, 155 F.R.D. 486, 491 (S.D.N.Y.1994); Morser,
715 F.Supp. at 517.
Rule 60(b)(1) provides in relevant part that “upon such
terms as are just, the court may relieve a party ... from
a final judgment, order, or proceeding for ... (1) mistake,
inadvertence, surprise, or excusable neglect.” Rule 60(b)
(6) provides relief “for any other reason justifying [that]
relief.” However, the Second Circuit has held that “Rule
60(b)(1) and 60(b)(6) are mutually exclusive, so that any
conduct which generally falls under the former cannot
stand as a ground for relief under the latter.” United States
v. Cirami, 535 F.2d 736, 740 (2d Cir.1976) (quoting United
States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir.)). Since
Dellefave seeks relief on the basis of alleged mistakes of
law, which is a ground for relief under Rule 60(b)(1), Rule
60(b)(6) is inapplicable.
Our Court of Appeals has instructed that Rule 60(b) is
“extraordinary judicial relief” and can be granted “only
upon a showing of exceptional circumstances.” Nemaizer

v. Baker, 793 F .2d 58, 61 (2d Cir.1986); accord United
States v. Bank of N.Y., 14 F.3d 756, 759 (2d Cir.1994).
Like a motion under Rule 59(e), a Rule 60(b) motion is
not a substitute for an appeal. See Browder v. Director,
Dep't of Corrections, 434 U.S. 257, 263 & n. 7, 98 S.Ct.
556, 54 L.Ed.2d 521 (1978); Hood v. Hood, 59 F.3d 40,
42 (6th Cir.1995). “Mere dissatisfaction in hindsight with
choices deliberately made ... is not grounds for finding
the mistake, inadvertence, surprise or excusable neglect
necessary to justify Rule 60(b)(1) relief.” Nemaizer, 793
F.2d at 62.

II. Dellefave Has Failed to Meet the Legal Standards
Required for the Court to Reconsider, Amend, or
Relieve Him from the Effect of the January 10, 2001
Opinion
A. Judgment on the Pleadings and Discovery
Dellefave seeks relief from that portion of the January 10,
2001 opinion which granted Druzakio's Rule 12(c) motion
for judgment on the pleadings on the grounds that (1)
the Court overlooked facts that he presented; and (2) the
Court erred in failing to convert the motion to a Rule
56 summary judgment motion in consideration of those
additional materials.
First, as set forth above, a movant must show that
the Court overlooked facts that had been presented in
the underlying motion in order to warrant relief. See
Dietrich v. Bauer, 76 F.Supp.2d 312, 327 (S.D.N.Y.1999).
However, the additional materials that Dellefave suggests
were overlooked-the proposed amended complaint and
the DiRienzo Certification-were filed on October 17, 2000,
and November 7, 2000, respectively, after the 12(c) motion
was fully submitted upon oral argument on October 11,
2000. Therefore, these materials were not properly before
the Court in deciding the Rule 12(c) motion, and their
existence is not cause to reconsider or amend the January
10, 2001 opinion.
*3 Even if these materials had been submitted in
opposition to the Rule 12(c) motion and that motion
converted to one for summary judgment, they would
have been disregarded as insufficient under the relevant
evidentiary standards. The proposed amended complaint
was unsigned, and therefore subject to being stricken
pursuant to Rule 11. See Fed.R.Civ.P. 11 (“If a pleading,
motion, or other paper is not signed, it shall be stricken
unless it is signed promptly after the omission is called

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Dellefave v. Access Temporaries, Inc., Not Reported in F.Supp.2d (2001)
2001 WL 286771

to the attention of the pleader or movant..”); Wrenn v.
New York City Health and Hospitals Corp., 104 F.R.D.
553, 556 (S.D.N.Y.1985) (stating that failure to sign a
proposed amended complaint “may constitute grounds
for striking the pleading.”). Moreover, rather than
submitting the certified transcription of the deposition,
Dellefave's counsel offered proof of that testimony in
the form of a “certification,” a summary based upon
his notes. (Reconsideration Mtn. Ex. B ¶ 2.) Affidavits
submitted pursuant to a summary judgment motion “shall
be on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein.” Fed.R.Civ.P. 56(e). DiRienzo's
certification recounted his notes of a witness's testimony
about her recollection of others' statements, and as such
constituted inadmissible double or triple hearsay. See
Fed.R.Evid. 801(c).
Second, Dellefave never argued that the Rule 12(c) motion
should be converted to a summary judgment motion
until the instant filing. As such, he may not argue for
reconsideration, amendment, or relief on that basis here.
See Dietrich, 76 F.Supp.2d at 327 (“a party may not
advance new facts, issues or arguments not previously
presented to the court.”); U.S. Titan v. Guangzhou Zhen
Hua Shipping, 182 F.R.D. 97, 100 (S.D.N.Y.1998) (same).
In any event, the fact that these materials were submitted
pursuant to a motion to amend does not dictate that they
should have been considered and treated as evidence in
opposition to a motion for summary judgment. Whether
to consider additional materials and thereby convert a
Rule 12 motion into a summary judgment motion is within
the sound discretion of the Court. See Hayden v. County of
Nassau, 180 F.3d 42, 54 (2d Cir.1999) (“If a judge looks to
additional materials, the motion should be converted into
a motion for summary judgment”); Diezcabeza v. Lynch,
75 F.Supp.2d 250, 256 (S.D.N.Y.1999) (“The Court may,
at its discretion, consider the affidavits attached to the
motion and thereby treat the instant motion as one for
summary judgment”); Pisello v. Town of Brookhaven, 933
F.Supp. 202 (E.D.N.Y.1996) ( “In its discretion and upon
notice to the parties, the motion for judgment on the
pleadings is treated for one for summary judgment.”).
Dellefave has introduced no controlling authority for the
proposition that the Court had an obligation to consider
these additional materials in the motion to dismiss under
the circumstances. 1

1

The fact that the proposed amended complaint
was considered pursuant to the motion to amend
the complaint does not dictate that the Court was
required to consider it as a part of the motion to
dismiss. First, as set forth above, the two motions
were submitted separately, and addressed in the same
opinion for reasons of judicial economy. Moreover,
the standard for considering materials submitted in
a motion to dismiss differs from that in a motion
to amend. In a motion to amend, it is appropriate
to consider the proposed amended complaint in
order to determine exactly which changes were
sought. See Smith v. Planas, 151 F.R.D. 547, 550
(S .D.N.Y.1993). On the other hand, a court must
consider only the pleadings, attached exhibits, and
materials incorporated by reference in addressing a
motion for judgment on the pleadings. Consideration
of additional materials is discretionary. See Royal
Ins. Co. of America v. Sportswear Group, LLC, 85
F.Supp.2d 275, 278 (S.D.N.Y.2000).

*4 As the Court acted within its discretion in declining
to treat the motion to dismiss as a summary judgment
motion, the fact that discovery had not yet finished is
irrelevant to the disposition. See, e.g., Excalibur Systems,
Inc. v. Aerotech World Trade, Ltd., No. 98-CV-1931,
(JG), 1999 WL 1281496, *1 n. 1 (finding that Rule 12(c)
motion brought more than five months before the close of
discovery was timely and appropriate).
No matters of fact or law having been overlooked, and
the plaintiff having advanced no claim that exceptional
circumstances exist justifying relief from the operation of
the opinion, the motion to reconsider or amend the Rule
12(c) dismissal of the complaint against all defendants is
hereby denied. 2
2

In his reply brief, DelleFave alleges that “the
court may have been influenced by ex parte
communications” with the defendants in the form
of a letter submitted between June 19, 2000 and
June 26, 2000 that are not in plaintiff counsel's
files. (Pltf. Reply Br. at 1, 4-5.) This assertion is
groundless. First, the letter at issue was received and
filed on June 21, 2000, and not considered at any
time after June 23, 2000, the date it was treated as a
motion and denied. Second, the letter was drafted by
Druzakio's attorneys at Berger Stern & Webb, who
asked the court to reconsider a May 23, 2000 granting
Druzakio's former counsel's motion to withdraw. It

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Dellefave v. Access Temporaries, Inc., Not Reported in F.Supp.2d (2001)
2001 WL 286771
addressed only Druzakio's representation and raised
no substantive or procedural issue pertaining to
DelleFave's claims. Finally, the letter was docketed
as Document # 16 in the public court clerk's file for
this case on June 27, 2000, a fact that DelleFave could
have discovered with minimal effort.

In light of this result, and no additional matters of fact or
law having been overlooked, the motion to reconsider the
decision to deny the discovery motion is also denied.

B. Motion to Amend
Dellefave next seeks reconsideration, amendment or relief
from that portion of the January 10, 2001 opinion which
denied leave to amend the complaint, on the grounds that
(1) the motion to amend the complaint to replead causes
of action against defendants other than Druzakio could
not have been filed in anticipation of an adverse ruling
because only Druzakio had filed a Rule 12 motion; and
(2) the alternative jurisdictional grounds for the Court's
refusal to grant leave to amend the complaint contravenes
Supreme Court precedent directing district courts to
exercise supplemental jurisdiction. These contentions will
be addressed in turn.
As set forth in the opinion, leave to amend was denied due
to undue delay, dilatory motive, futility, and the fact that
the amended complaint, if allowed, would be the subject of
a successful motion to dismiss on jurisdictional grounds.
See 2001 WL 25745, *9. Therefore, even if Dellefave
did not have a dilatory motive in seeking to amend the
complaint as to non-moving defendants, several adequate
alternative grounds exist-including futility-on which to
deny the motion to replead as to them.
Second, the Supreme Court precedent Dellefave cites on
the alternative jurisdictional ground was not presented
in the original motion, and therefore is not a basis
on which to reconsider the opinion under the relevant
standards cited above. In any case, these cases do not
establish that a district court must either remand or
exercise jurisdiction over a proposed amended complaint
that raises no grounds for exercising federal jurisdiction.
Instead, the cases cited address the exercise of federal
jurisdiction in cases where the federal claim providing
the basis for removal jurisdiction has been dismissed
in nondiversity cases where no amended complaint has
been proposed. Under those circumstances, district courts
have discretion whether to exercise jurisdiction over
the remaining state law claims. See Wisconsin Dept.

of Corrections v. Schacht, 524 U .S. 381, 390-91, 118
S.Ct. 2047, 2053, 141 L.Ed. 364 (1998) (noting that
district courts may exercise supplemental jurisdiction over
state law claims after federal claims providing removal
jurisdiction are dismissed); Carnegie Mellon University v.
Cohill, 484 U.S. 343, 357 & n. 7, 108 S.Ct. 614, 622 &
n. 7, 98 L.Ed.2d 720 (1988) (recognizing nonmandatory
rule that where all federal claims are dismissed, district
court should dismiss all state claims as well) (citing Mine
Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139,
16 L.Ed.2d 218 (1966) (“pendent jurisdiction is a doctrine
of discretion, not of plaintiff's right ”) (emphasis added);
28 U.S.C. § 1367(c)(3) (“The district courts may decline to
exercise supplemental jurisdiction over a claim ... if ... (3)
the district court has dismissed all claims over which it has
original jurisdiction”).
*5 Here, in contrast, the filing of a new complaint
“supersedes the original, and renders it of no legal effect,”
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128
(2d Cir.1994). Therefore, the existence of a basis on
which to exercise pendent jurisdiction under the original
complaint provides no justification for the court to
exercise jurisdiction over an amended complaint that sets
forth no basis for federal jurisdiction. It would be futile
to allow a plaintiff to file an amended complaint that
would be the subject of a successful motion to dismiss
on jurisdictional grounds. See Chan v. Reno, 916 F.Supp.
1289, 1308 (S.D.N.Y.1996). Therefore, the procedural
posture of the case, the fact that the proposed amended
complaint failed to state causes of action or assert a basis
for the exercise of federal jurisdiction, and considerations
of judicial economy all weighed in favor of dismissing the
action rather than remanding. See, e.g., Moore v. State
of Indiana, 999 F.2d 1125, 1128 (7th Cir.1993) (affirming
district court's refusal to grant leave to amend and
dismissal of the case where proposed amended complaint
would be subject to successful motions to dismiss for
failure to state a cause of action and lack of federal
jurisdiction).
The motion to reconsider the ruling on the proposed
amended complaint is therefore denied.

C. Rule 11
Dellefave seeks reconsideration of the imposition of
attorneys' fees pursuant to Rule 11 because (1) Rule 11
does not apply to a complaint filed in state court because
the complaint is not signed with the certification required

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Dellefave v. Access Temporaries, Inc., Not Reported in F.Supp.2d (2001)
2001 WL 286771

to impose sanctions; and (2) the proposed amended
complaint and documents attached and incorporated
by reference thereto stated claims for hostile work
environment discrimination and tortious interference with
contract claims.
First, as above, Dellefave never before raised the first
ground for reconsideration of the sanctions award.
Therefore, it would not be properly considered by the
Court at this time under the relevant legal standards set
forth above.
However, a brief discussion of this argument is warranted
to highlight a change in the law. Dellefave cites Mareno
v. Jet Aviation of America, Inc., 970 F.2d 1126, 1128
(2d Cir.1992), cert. denied, 507 U.S. 966, 113 S.Ct. 1401
(1992), and prior Second Circuit cases for the proposition
that complaints filed in state court may not be the subject
of Rule 11 sanctions. However, Rule 11 was amended
in 1993 to allow a district court to impose sanctions
not only for a party's “signing” a paper filed with the
district court, but for “presenting to the court (whether
by signing, filing, submitting, or later advocating)” a
document that is otherwise sanctionable. Fed.R.Civ.P.
11(b) (December 1, 1993 amendment). The Advisory
Committee Notes explain that “if after a notice of removal
is filed, a party urges in federal court the allegations
of a pleading filed in state court (whether as claims,
defenses, or in disputes regarding removal or remand), it
would be viewed as ‘presenting’ - and hence certifying to
the district court under Rule 11-those allegations.” See
Buster v. Greisen, 104 F.3d 1186, 1190 n. 4 (9th Cir.1997)
(affirming imposition of sanctions by federal removal
court for pursuing allegations in complaint first filed in
state court), cert. denied, 522 U.S. 981, 118 S.Ct. 441, 139
L .Ed.2d 378 (1997).
*6 By advocating the allegations in the original
complaint in his written and oral opposition to Druzakio's
End of Document

dismissal and sanctions motions (Pltf. Rule 11 Br. at 2),
and in support of his motion to amend (Pltf. Amd. Br. at 3,
DiRienzo Cert. at 2), Dellefave has “presented” the claims
of the original complaint to this Court. See, e.g., Loving
v. Pirelli Cable Corp., 11 F.Supp.2d 480, 493 (D.Del.1998)
(granting Rule 11 sanctions on the basis of complaint
originally filed in state court that was defended at oral
argument in federal court). Therefore, he may properly
be sanctioned for presenting frivolous claims pursuant to
Rule 11.
The second argument Dellefave advances in support of
the motion to reconsider the award of sanctions does not
suggest that this Court overlooked a matter of fact or law,
but rather that the Court misapplied the law. As such, the
motion in effect seeks to appeal the prior decision rather
than to ask the Court to reconsider it under the proper
standard.
No appropriate grounds having been advanced for
reconsideration of the sanction award, the imposition of
attorneys' fees will stand.

III. Druzakio's Motion for Fees and Costs
Within the discretion of the Court, Druzakio's motion
for attorneys' fees and costs associated with opposing the
instant motion is denied.

Conclusion
For the foregoing reasons, the motions are denied in full.
It is so ordered.

All Citations
Not Reported in F.Supp.2d, 2001 WL 286771

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Peterson v. Home Depot U.S.A., Inc., Not Reported in F.Supp.3d (2014)
2014 WL 1355622

2014 WL 1355622
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Edward PETERSON, Plaintiff,
v.
HOME DEPOT U.S.A., INC., Defendant.
No. 11 Civ. 5747(ER).
|
Signed April 4, 2014.

OPINION AND ORDER
RAMOS, District Judge.
*1 Plaintiff Edward Peterson moves pursuant to Local
Rule 6.3 for reconsideration of this Court's Order (Doc.
18) denying Plaintiff's application for a further extension
of the discovery period (the “October 3 Order,” or the
“Order”). 1 Doc. 19. The motion is DENIED.
1

The procedural history of this case is discussed in the
October 3 Order, familiarity with which is presumed.

I. Legal Standard
Rule 6.3 of the Local Civil Rules for this District provides
for reconsideration or reargument of a court's order
on a motion only where “the court has overlooked
‘controlling decisions or factual matters that were put
before it on the underlying motion ... and which, had they
been considered, might have reasonably altered the result
before the court.’ “ Mikol v. Barnhart, 554 F.Supp.2d
498, 500 (S.D.N.Y.2008) (alteration in original) (quoting
Greenwald v. Orb Commc'ns & Mktg., Inc., No. 00
Civ.1939(LTS) (HBP), 2003 WL 660844, at *1 (S.D.N.Y.
Feb. 27, 2003)); see also Local R. 6.3. “Reconsideration
of a court's previous order is an ‘extraordinary remedy
to be employed sparingly in the interests of finality
and conservation of scarce judicial resources.’ “ Parrish
v. Sollecito, 253 F.Supp.2d 713, 715 (S.D.N.Y.2003)
(quoting In re Health Mgmt. Sys., Inc. Sec. Litig., 113
F.Supp.2d 613, 614 (S.D.N.Y.2000)). Local Rule 6.3 is
“narrowly construed and strictly applied so as to avoid
repetitive arguments on issues that have been considered
fully by the Court.” Mikol, 554 F.Supp.2d at 500 (quoting

Dellefave v. Access Temps., Inc., No. 99 Civ. 6098(RWS),
2001 WL 286771, at *1 (S.D.N.Y. Mar.22, 2001)) (internal
quotation mark omitted). “Where the movant fails to
show that any controlling authority or facts have actually
been overlooked, and merely offers substantially the same
arguments he offered on the original motion or attempts
to advance new facts, the motion for reconsideration must
be denied.” Id.
A motion for reconsideration under Local Rule 6.3 is not
a substitute for appeal, Boart Longyear Ltd. v. Alliance
Indus., Inc. ., 869 F.Supp.2d 407, 418 (S.D.N.Y.2012),
nor is it a vehicle for a party dissatisfied with the
Court's ruling to voice its disagreement with the decision.
R.F.M.A.S., Inc. v. Mimi So, 640 F.Supp.2d 506, 512–
13 (S.D.N.Y.2009). “Courts have repeatedly been forced
to warn litigants that such motions should not be made
reflexively to reargue ‘those issues already considered
when a party does not like the way the original motion
was resolved.’ “ Boart Longyear, 869 F.Supp.2d at 418
(quoting Makas v. Orlando, No. 06 Civ. 14305(DAB),
2008 WL 2139131, at *1 (S.D.N.Y. May 19, 2008)); see,
e.g., Anwar v. Fairfield Greenwich Ltd., 884 F.Supp.2d 92,
96 (S.D.N.Y.2012) (“The provision for reargument is not
designed to allow wasteful repetition of arguments already
briefed, considered and decided.” (quoting Schonberger
v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y.1990)
(internal quotation marks omitted)); see also Associated
Press v. U.S. Dep't of Def., 395 F.Supp.2d 17, 19
(S.D.N.Y.2005) (noting that a motion for reconsideration
is not “an occasion for repeating old arguments previously
rejected”).
*2 Whether to grant or deny a motion for
reconsideration is “within ‘the sound discretion of the
district court.’ “ Premium Sports Inc., No. 10 Civ.
3752(KBP), 2012 WL 2878085, at *1 (S.D.N.Y. June 11,
2012) (quoting Aczel v. Labonia, 584 F.3d 52, 61 (2d
Cir.2009)). Under the strict standard applied by courts in
this Circuit, “reconsideration will generally be denied.” In
re Health Mgmt. Sys., Inc. Sec. Litig., 113 F.Supp.2d at
614.

II. Plaintiff's Motion
In moving for reconsideration, Plaintiff first argues that
the October 3 Order will result in “manifest injustice,”
as Plaintiff's inability to conduct metallurgical testing
will preclude him from introducing the scientific evidence
needed to prove his case. See Pl.'s Mem. in Supp. at

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Peterson v. Home Depot U.S.A., Inc., Not Reported in F.Supp.3d (2014)
2014 WL 1355622

6. Plaintiff raised this argument in his initial motion.
See Doc. 16 (“Letter Brief”), at 5 (“The metallurgical
testing sought by Plaintiff with either prove (or disprove)
[Plaintiff's expert's] preliminary opinions and, without
such testing, Plaintiff will be unable to meet his burden
of proof.”). The Court did not overlook this argument
in denying Plaintiff's request to extend discovery, but
rather expressly considered it as a factor demonstrating
Plaintiff's lack of diligence in complying with the existing
discovery schedule. See Order at 5 (“[N]otwithstanding
Plaintiff's claim that he will be unable to satisfy his
burden of proof in the absence of this crucial information,
Plaintiff failed to conduct metallurgical testing during
the five months that followed [between the issuance of
Plaintiff's expert report and the discovery deadline].”).
This argument having been raised and rejected on the
initial motion, it cannot be raised a second time as a basis
for reconsideration.
Plaintiff also argues that the Court overlooked
“controlling law on excusable neglect that ..., more likely
than not, would have altered” the Court's decision.
Pl.'s Reply at 2; see Pl.'s Mem. in Supp. at 7–10.
This argument fails for multiple reasons. First, despite
Plaintiff's assertions to the contrary, see Pl.'s Reply at 1–2,
Plaintiff's “excusable neglect” argument represents a new
legal theory improperly raised for the first time on motion
for reconsideration. See Albury v. J.P. Morgan Chase,
No. 03 CIV.2007(HBP), 2005 WL 1653939 (S.D.N.Y. July
14, 2005), at *3 (“Except where a movant is relying on
new facts that could not have been previously discovered
or newly promulgated law, additional facts or new legal
theories cannot be asserted by way of a motion for
reconsideration.”); see also Letter Motion (arguing in
terms of Rule 26 as opposed to Rule 6, which now
forms the basis of Plaintiff's objection). Plaintiff's original
application failed to argue excusable neglect, and it was
not incumbent on the Court to raise that argument sua
sponte in order to make Plaintiff's case for him. Excusable
neglect is therefore improperly raised, and Plaintiff's
motion fails for that reason alone.
*3 Even if Plaintiff had raised excusable neglect in
its prior application, the instant motion would still fail
because the law to which Plaintiff now directs the Court
is not “controlling.” Since Plaintiff sought a modification
of the parties' discovery plan, Rule 16(b)(4), and not
Rule 6(b)(1), governs the application. See Fed.R.Civ.P.
16(b)(4) (providing that a Rule 16 scheduling order “may

be modified only for good cause and with the judge's
consent”); see also Corkrey v. Internal Revenue Serv.,
192 F.R.D. 66, 67 (N.D.N.Y.2000) (“Because the rule
which authorized the scheduling order contains a specific
provision governing the relief sought here, it is that rule
which governs the motion ... rather than Rule 6(b).”). The
October 3 Order specifically quoted Rule 16 and noted
that, “[t]o demonstrate good cause, a party seeking an
extension must show that the relevant deadline could not
reasonably be met despite that party's diligence.” Order
at 3–4. Thus, the Court did not overlook, but rather
expressly applied, the controlling law for purposes of
Plaintiff's application.
Finally, even if Rule 6 did provide the applicable standard
in this case, the substance of Plaintiff's excusable neglect
argument is itself meritless. The Second Circuit has
indicated that the relevant factors in evaluating such an
argument include “(1) the danger of prejudice to the
non-moving party, (2) the length of delay and impact
on judicial proceedings, (3) the reason for the delay,
including whether it was within the reasonable control of
the moving party, and (4) whether the moving party acted
in good faith.” Williams v. KFC Nat. Mgmt. Co., 391 F.3d
411, 415 (2d Cir.2004) (citing Pioneer Inv. Servs. Co. v.
Brunswick Associates Ltd. P'ship, 507 U.S. 380, 395, 113
S.Ct. 1489, 123 L.Ed.2d 74 (1993)). Here, Plaintiff has
failed to establish any justifiable basis for the delay. He
first repeats his previous argument that he was attempting
to “avoid a spoliation claim.” Pl.'s Mem. in Supp. at
8; see also Letter Motion at 2 (“In order to avoid a
claim by Defendant of evidence spoliation, the Plaintiff
has refrained from conducting destructive testing on the
Ladder without Defendant's consent or participation.”).
The Court did not overlook this argument in its October
3 Order. See Order at 6 (noting that a spoliation concern
explains neither Plaintiff's delay in seeking an extension
from the Court nor his failure to timely alert the Court
to Defendant's apparent unwillingness to cooperate with
the request for metallurgical testing). Although Plaintiff
indicates that the March 23, 2012 status conference was
the first time Plaintiff “realized Defendant was expressly
unwilling to consent and/or participate in such testing,”
Pl.'s Mem. in Supp. at 9, the Court implicitly considered
and rejected this argument when it held that “two emails
[from Plaintiff to Defendant] over a four-month time
period ... fail to demonstrate diligence” on Plaintiff's part.
Order at 6.

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Peterson v. Home Depot U.S.A., Inc., Not Reported in F.Supp.3d (2014)
2014 WL 1355622

*4 Finally, Plaintiff offers the following explanation for
his eleventh-hour request:
The Plaintiff ... avoided unilateral
testing of the Ladder because
he was under a good faith
assumption that the Court would
be amenable to granting additional
time for metallurgical testing of the
Ladder because of the cooperative
course of dealings between the
parties throughout discovery and
the perceived flexibility that had
been established through the Court's
multiple endorsement [sic] of
previous requests for extensions of
time, which were never followed
by an admonishment that a certain
discovery cutoff date was “final.”
Pl.'s Mem. in Supp. at 8–9 (citation omitted). Plaintiff
is essentially indicating that he was operating under the
assumption that, since the Court had granted previous
requests to extend the discovery period, the parties were
no longer under an obligation to comply with Courtimposed deadlines. Viewed differently, Plaintiff's position
implies that, once the Court waived the earlier deadlines,
it was effectively estopped from enforcing future deadlines
unless it put the parties on notice that a new date
was “final.” But all deadlines are “final” unless and
until the Court grants an extension. Any assumption
to the contrary was unreasonable, regardless of whether
it was made in good faith. In any event, Plaintiff's
misguided assumption still fails to explain why he did not
request the extension, or alert the Court to Defendant's
End of Document

noncooperation, in advance of the deadline. 2 Plaintiff's
attempt to deflect responsibility from himself and onto the
Court is unavailing.
2

The cases to which Defendant cites are
distinguishable on that basis. See PL's Mem. in
Supp. at 10. In Cedar Petrochemicals, Inc. v. Dongbu
Hannong Chemical Co., Ltd., 769 F.Supp.2d 269, 281
(S.D.N.Y.2011), there was “at least some merit” to
the plaintiff's claim that circumstances outside its
control had contributed to the delay; the plaintiff had
merely failed to “plan ahead” and anticipate those
circumstances. In Bahrami v. Ketabchi, No. 05 CIV.
3829(RMB)(KNF), 2010 WL 1948599 (S.D.N.Y.
May 13, 2010), counsel misread the date on the
court's order, leading to a late filing. In Martinez v.
Barasch, No. 01 CIV. 2289(MBM), 2004 WL 1555191
(S.D.N.Y. July 12, 2004), the key facts underlying
the defendants' jurisdictional challenge were belatedly
disclosed, thus excusing the defendants' delay in
raising them. Here, Plaintiff was aware of the need for
metallurgical testing and of the impending deadline
but simply failed to act prior to the close of discovery.

III. Conclusion
For the reasons set forth above, Plaintiff's motion for
reconsideration is DENIED. The Clerk of Court is
respectfully directed to terminate the motion (Doc. 19).

It is SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 1355622

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Metropolitan Opera Ass'n, Inc. v. Local 100, Hotel..., Not Reported in...
2004 WL 1943099, 175 L.R.R.M. (BNA) 2870

2004 WL 1943099
United States District Court,
S.D. New York.
METROPOLITAN OPERA
ASSOCIATION, INC., Plaintiff,
v.
LOCAL 100, HOTEL EMPLOYEES
AND RESTAURANT EMPLOYEES
INTERNATIONAL UNION, et al., Defendants.
No. 00 Civ. 3613(LAP).
|
Aug. 27, 2004.
Attorneys and Law Firms
Cohen Lans LLP, New York, NY, Deborah E. Lans,
for Plaintiff Metropolitan Opera Association, Inc., of
counsel.
Stillman & Freidman, PC, New York, NY, Charles A.
Stillman, Catharine Easterly, and Sharon E. Grubin,
General Counsel, Metropolitan Opera, New York, NY,
for Plaintiff Metropolitan Opera Association, Inc., of
counsel.
Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C.,
New York, New York, Elkan Abramowitz, Jonathan S.
Sack, Elizabeth Small, for the firm of Herrick, Feinstein
LLP, of counsel.
Levy, Ratner & Behroozi, P.C., New York, New York,
Daniel Engelstein, Adam Rynard, for Defendant Local
100, Here International Union and the firm of Davis,
Cowell & Bowe, LLP, of counsel.
Hogan & Hartson, LLP, New York, NY, Steven M.
Edwards, for Davis, Cowell & Bowe, LLP, of counsel.
Herrick, Feinstein LLP, New York, New York, James A.
Moss, Marianne Yen, for Defendants Henry Tamarin and
Dennis Diaz, of counsel.

OPINION
PRESKA, J.

*1 In an Opinion dated January 28, 2003, and reported
at 212 F.R.D. 178 (the “Opinion”), the motion of
plaintiff, the Metropolitan Opera Association, Inc. (the
“Met”), for judgment as to liability against defendants
Local 100, H.E.R.E. (“Local 100” or the “Union”),
and Henry Tamarin and Dennis Diaz (“Tamarin” and
“Diaz”; collectively, the “individual defendants”) and
for sanctions against defendants and their counsel was
granted. Herrick Feinstein, LLP (“Herrick”), Davis,
Cowell & Bowe (“Davis”), 1 the Union and the individual
defendants now move for reconsideration of the Opinion.
The facts pertinent to the instant motions have been set
forth in extensive detail in the Opinion, familiarity with
which is assumed.
1

Although the notice of motion dated March 3, 2003
states that both the Union and Davis move for
reconsideration, and the opening line of the Levi,
Ratner & Behroozi brief notes that the firm represents
both the Union and Davis, the text of the briefs and
the conclusions do not mention Davis other than to
state in a footnote that Davis joins the arguments
made on behalf of all other defendants. Thus, Davis
will not be treated separately. Because movants have
joined in each other's motions, all arguments that
were made are considered as to all movants.

I. Standard for Reconsideration
Rule 59(e) motions for reconsideration in the Southern
District of New York are governed by Local Rule 6.3.
The decision whether to grant such a motion is within
the district court's sound discretion. Ursa Minor Ltd. v.
Aon Fin. Prods., Inc., No. 00 Civ. 2474, 2000 U.S. Dist.
LEXIS 12968, at *1 (S.D.N.Y. Sept.8, 2000), aff'd, 7 Fed.
Appx. 129 (2d Cir.2001); see also Wallingford Shopping,
L.L.C. v. Lowe's Home Centers, Inc., 171 F.Supp.2d 152,
153 (S.D.N.Y.2001). In this Circuit, “[t]he standard for
granting such a motion is strict, and reconsideration will
generally be denied....” Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir.1995); see also Ursa Minor,
2000 U.S. Dist. LEXIS 12968, at *1; Wallingford, 171
F.Supp.2d at 153. “[R]econsideration of a previous order
is an extraordinary remedy to be employed sparingly in
the interests of finality and conservation of scarce judicial
resources.” In re Health Mgmt. Sys., Inc. Sec. Litig., 113
F.Supp.2d 613, 614 (S.D.N.Y.2000) (internal quotation
marks and citations omitted).

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Local Rule 6.3 provides that the motion shall “set[ ]
forth concisely the matters or controlling decisions
which counsel believes the court has overlooked.”
New assertions cannot be raised in a motion for
reconsideration. See Bueno v. Gill, 237 F.Supp.2d 447,
449 n. 1 (S.D.N.Y.2002) (citing National Union Fire Ins.
Co. of Pittsburgh, PA v. Stroh Cos., No. 98 Civ. 8428,
2000 U .S. Dist. LEXIS 2581, at *17-18 (S.D.N.Y. Mar.
9, 2000), aff'd, 265 F.3d 97 (2d Cir.2001)); Litton Indus.,
Inc. v. Lehman Bros. Kuhn Loeb Inc., No. 86 Civ. 6447,
1989 U.S. Dist. LEXIS 9145, at *9-10 (S.D.N.Y. Aug. 4,
1989). Rather, a motion for reconsideration “is limited to
bringing to the Court's attention controlling authority or
factual matters presented to the Court in the underlying
motion and overlooked.” Bueno, 237 F.Supp.2d at 449.
I have already noted, and sanctions counsel to Herrick
has acknowledged, that a motion for reconsideration
does not mean the parties get a “do over.” (Lans III, 2
Ex. 22 (Transcript of February 10, 2003 Conference
(“2/10/03 Tr.”) at 9).) As former Judge Martin has so aptly
commented:
2

Reference is to the Declaration of Deborah E. Lans
in Opposition to Motions for Reconsideration sworn
to May 5, 2003.

*2 The purpose of a motion to reargue is [neither] to
start a new round of arguments ... [n]or should the Court
be expected to wade through lengthy papers that simply
reiterate in slightly different form the arguments already
made in the party's original papers.
Forsyth v. Fed'n Employ. & Guidance Serv., No. 97 Civ.
3399, 2003 U.S. Dist. LEXIS 3314, at *1-2 (S.D.N.Y. Mar.
6.2003).
Further, reconsideration will be denied unless the
decisions or data relied upon might reasonably be
expected to alter the conclusion reached by the court.
Shrader, 70 F.3d at 257; see also Anglo Am. Ins.
Grp., P.L.C. v. CalFed, Inc., 940 F.Supp. 554, 557
(S.D.N.Y.1996) (successful motion for reconsideration
“must present ‘matters or controlling decisions the court
overlooked that might materially have influenced its
earlier decision” ’) (quoting Morser v. AT & T Info. Sys.,
715 F.Supp. 516, 517 (S.D.N.Y.1989)); Adams v. United
States, 686 F.Supp. 417, 419 (S.D.N.Y.1988) (motion for
reconsideration denied where Government failed to point
to law which was overlooked and “evidence of agency

interpretation which the court is said to have overlooked
lends no support to the Government's case”).

II. Herrick's Motion
As mentioned above, at the February 10, 2003 conference,
I raised my concern that Herrick was merely looking for a
chance to have a “do over” on the issues that were raised or
could have been raised in sanctions motion. In response,
Herrick's newly-retained distinguished sanctions counsel,
Elkan Abramowitz, gave assurances that Herrick would
move only on issues that were “the proper subject of a
motion to reconsider” and that any new issues would
concern arguments that were not “waivable.” (2/10/03
Tr. at 9.) After more discussion of the matter, Mr.
Abramowitz stated: “[i]f there are no grounds for [a]
motion to reconsider, I represent as an officer of the
court I will not burden the record further....” (Id. at 14.)
Despite this representation, no arguments were raised
on reconsideration that were not raised or could not
have been raised on the underlying motion, and, thus,
the motion is denied on that basis alone. Nevertheless,
given the serious nature of the misconduct detailed
in the Opinion, in the alternative, Herrick's motion
for reconsideration is granted. Upon reconsideration,
however, I adhere to my previous decision with respect to
Herrick.
On this motion, Herrick lawyers James A. Moss and
Marianne Yen have both submitted declarations which
purport to refute the factual findings made in the Opinion.
A statement in each one, however, reveals the true
substance of Herrick's motion for reconsideration. Moss
says: “In this case we strongly disagree with the Court's
criticism of our handling of this case.” (Moss Decl. 3 ¶ 6.)
Yen says: “I respectfully request that the Court accept and
consider this Declaration so as to allow me to provide a
more complete response to what the Court has determined
to be an incomplete explanation of my actions.” (Yen
Decl. 4 ¶ 1 (emphasis added).) Needless to say, these are
not proper grounds for reconsideration. In any event,
the supposed factual issues raised (more accurately, half
raised) by the Moss and Yen Declarations are wholly
insufficient to affect the result. (See, e.g., Lans III ¶ 42.)
3

Reference is to the Declaration of James A. Moss
sworn to March 3, 2003.

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4

Reference is to the Declaration of Marianne Yen
sworn to March 3, 2003.

*3 In its motion, Herrick continues the approach
utilized on the sanctions motion-it selects a few points
to quibble over while ignoring numerous larger, more
serious issues raised concerning its conduct in the process
of discovery in this action. For example, Moss, the Herrick
supervising partner on this matter during most of the
time period upon which the Opinion is based, primarily
addresses two isolated failings by Herrick lawyers found
in the Opinion-counsel's response that no documents
responsive to the Met's Third Document Request existed
and the misrepresentations surrounding the Peter Ward
deposition-and remains silent on the numerous other
failings found. (See Lans III ¶ 8.)
Similarly, as part of his explanation of why he did not
submit an affidavit in opposition to the sanctions motion,
Moss states that “[i]n fact prior to the full briefing on
the sanctions motion, I did submit a seven-page letter to
the Court dated April 12, 2002 [hereinafter the “April 12
letter”], addressing many of the legal and factual issues
the plaintiff had indicated it wanted to raise in its motion
papers.” (Moss Decl. ¶ 4.) Moss then complains that
the Opinion cited some “observations made by Sharon
Grubin [, counsel to the Met,] in her letter to the Court
of April 25, 2002, but made no mention at all of the
[April 12 letter]; instead [the Opinion found Moss'] silence
was ‘deafening.” ’ (Id.) First, some two weeks after the
sanctions motion was served, Grubin's April 25 letter
brief “(1) follow[ed] up on [the Met's] December 17
[, 2001] application for sanctions, including attorneys'
fees, regarding the subpoenaed depositions of the Met
Directors, and (2) supplement[ed] that application to
request similar relief with regard to defendant's counsel's
behavior concerning the deposition of Peter Ward.” 212
F.R.D. at 183, 216. Thus, the April 25 Grubin letter
was a stand-alone supplement to the April 11, 2002
sanctions motion (in the informal manner utilized by all
parties without objection throughout the case, see infra
note 15), and was considered only on the two items
noted therein. Moss' April 12 letter discussed neither and,
indeed, noted that, because of time constraints, “we have
not endeavored ... to prepare a substantive response to
[Met] counsel's many arguments.” (Moss Decl., Ex. A at
3; see also id. at 7 (“If your Honor is inclined to permit
the Met at this late stage to interpose this silly motion,
we will certainly respond to it at length.”).) Moss nowhere
explains, however, how the unsworn letter, by its terms

not a “substantive response” or a response “at length,”
should have been considered as part of the record on the
sanctions motion or, more importantly, on what issues it
should have been considered.
Then, in an apparent attempt to come within the rubric
of reconsideration and to point out matters overlooked
in the sanctions motion, Moss notes that he is attaching
a copy of the April 12 letter to his declaration and then
“ask[s] th [e] Court to review it, particularly if the Court
did not do so before deciding to grant the plaintiff's motion.”
(Id. (emphasis added).) The implication that the April 12
letter had not been read prior to issuance of the Opinion
either represents massive (and incredible) memory loss or
is wholly disingenuous. When, on the eve of trial, the
Met asked permission to file its sanctions motion, I was
reluctant to adjourn the trial without gauging whether
the motion was serious or frivolous. Thus, the Met was
instructed to serve the motion the next day so that it could
be reviewed. After reviewing the motion, Moss wrote the
April 12 letter discussing the motion. In the April 12
teleconference that followed in which Moss participated,
the motion and the April 12 letter were discussed at length.
Moss' suggestion now that the April 12 letter might not
have been read prior to the Opinion represents more of
the type of conduct on which the Opinion was based.
Moreover, during the April 12 teleconference, I noted
that, even assuming the various quibbles raised in the
April 12 letter were correct, the letter was entirely silent
on the numerous serious allegations of discovery failure
detailed in the motion. (See Lans III ¶¶ 9-12.) Precisely
the same approach has been utilized by Herrick on the
reconsideration motion. A few factual matters are picked
apart-mostly unsuccessfully (see Lans III ¶¶ 13-36)-while
numerous major findings about Herrick's conduct over
the course of the discovery process are left unaddressed.

A. Factual Issues
*4 As an initial ground for reconsideration, Herrick
argues that numerous facts relating to the discovery
process in this case were overlooked and misconstrued.
(Herrick Br. 5 at 2.) Herrick contends that “[m]any of the
crucial findings of fact by the Court are not supported
by the record as a whole, because the Court apparently
relied solely on the Met's representations and accepted
them as true.” (Id. at 3.) The fact that the Opinion cites to
the Met's submissions-which were extraordinarily detailed
and well-supported by documentary evidence-does not

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render the findings incorrect or unsupported. Indeed,
the statements of Deborah Lans, counsel for the Met,
in her moving declaration submitted on the motion for
sanctions were made under penalty of perjury and stood,
for the most part, unrebutted by defendants. (See Lans
II, 6 Ex. 60 (Lans' moving declaration marked as a marked
pleading and indicating that most of the factual statements
in the moving declaration were unrebutted).) The nonsubstantive footnote in Herrick's reply brief does not in
any way change the fact that the factual allegations in the
Lans Declaration remain largely unrebutted. (See Herrick
Reply Br. 7 at 3 n.2 (“We dispute many of the assertions
contained in the latest 75-page Lans Declaration and
the accompanying legal memorandum, as we do many
of the statements in the Met's declarations submitted
in connection with its motion for judgment and this
motion, totaling 236 pages. Given the length of the Met's
submissions and present space limitations, we reject the
notion that each of those allegations is admitted if not
specifically denied.”).) For the record, there are no page
limits, or “space limitations,” on affidavits, and no request
was made by Herrick for additional briefing pages. In
addition, some of the findings in the Opinion are based on
my own independent recollection of the facts and events
during the discovery process. E.g., 212 F.R.D. at 217
(Yen's representation in the December 18 teleconference
that Ward would be “getting on a plane.”)
5

6
7

Reference is to the Memorandum of Law in
Support of Herrick, Feinstein LLP's Motion for
Reconsideration dated March 3, 2003.
Reference is to the Reply Declaration of Deborah E.
Lans, sworn to May 15, 2002.
Reference is to the Reply Memorandum of Law
in Support of Herrick, Feinstein LLP's Motion for
Reconsideration dated May 30, 2003.

Supposedly overlooked facts that Herrick does deign to
discuss do not aid its cause. For example, Herrick argues
that the finding in the Opinion that “[t]he Union had
initially objected to a walk-through [of its offices by Met
counsel], and, in a effort to avoid it, Yen produced a floor
plan of the Union's offices,” 212 F.R.D. at 209 n. 18,
overlooked the fact that the floor plan had been produced
prior to the request for a walk-through, not in response to
the request. Although Herrick is correct as to the narrow
fact of when the floor plan was produced, that fact in
no way diminishes the finding that the Union argued

that Met counsel's request for a walk-through of Union
offices should be denied because a floor plan, drawn by a
Herrick lawyer and now admitted to be inaccurate, had
been produced. (See Lans III ¶ 42(b).) Thus, the fact that
the floor plan was produced prior to the request for a walk
through would not reasonably be expected to alter the
conclusion in the Opinion. See Shrader, 70 F.3d at 257.
*5 Similarly, Herrick argues that the finding that the
“Met's Fourth Document Request dated October 31,
2001 was never responded to,” 212 F.R.D. at 193, was
incorrect because “documents were produced in response
thereto.” (Herrick Br. at 4.) Although the wording of
the Opinion could have been more precise, the context
of the finding and the citation following it make clear
that, as admitted in Ms. Yen's May 22, 2002 letter,
a written response 8 to the Met's Fourth Document
Request had never been served “because one associate was
transitioning out of the case and another transitioning in.”
212 F.R.D. at 193. 9
8

9

See Fed.R.Civ.P. 34(b) (“The party upon whom
the [Rule 34] request is served shall serve a written
response within 30 days after the service of the
request.... The response shall state, with respect to
each item or category, that inspection and related
activities will be permitted, as requested, unless the
request is objected to, in which event the reasons for
the objection shall be stated.”).
The entire finding that Herrick complains of reads:
“The Met's Fourth Document Request dated October
23, 2001 was never responded to because one
associate was transitioning out of the case and
another transitioning in. (See Letter from Yen to the
Court dated May 22, 2002 (“Yen 5/22/02 Ltr.”) at
5.) Moss, the partner in charge during that period, is
silent.” 212 F.R.D. at 193.

Similarly, Herrick contests the finding that “counsel lied
to the Court about a witness' vacation schedule,” 212
F.R.D. at 182; see also id. at 216-18, 226-27. (Herrick Br.
at 4.) Even on reconsideration, however, neither Moss
nor Yen denies representing-falsely, according to Ward's
testimony under oath-that Ward would be out of town for
three weeks on vacation. Moss and Yen's wordy dancing
around in their declarations on reconsideration in no way
contradicts or otherwise calls into question the finding
that Yen represented to Met counsel and the Court that
Ward would be getting “on a plane” on a certain date and
that both Yen and Moss represented repeatedly to Met

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counsel and the Court that Ward would be out of town
(not in the New York area) on vacation. (See Lans III ¶¶
20-36.) 10
10

The Moss and Yen Declarations are, of course, silent
as to the other machinations surrounding the Ward
deposition. See 212 F.R.D. 216-18, 226-27.

Presumably intending to discuss a factual matter,
Herrick's brief contains a heading stating, “The Union
Produced All Relevant Documents.” (Herrick's Br. at 10.)
The discussion recites the Union's responses to plaintiff's
various document requests, including productions of
documents, Rule 34 responses 11 and the Bates numbers
of some of the documents produced: After noting these
responses, the section concludes: “We respectfully submit
that the Court should have taken into account this record
of actual compliance by defendants and their counsel,
which we believe refutes a finding of wholesale abdication
of responsibility by all defense counsel involved.” (Herrick
Br. at 11.)
11

Herrick's recitation makes clear that, contrary to the
implication in its discussion of the finding in the
Opinion that “the Met's Fourth Document Request ...
was never responded to,” Herrick Br. at 4, it well
knows the difference between producing documents
in response to a Rule 34 request and serving a written
response to a Rule 34 request. Compare “[d]ocuments
responsive to the Fourth Document Demand were
timely produced on November 21, 2001 ...,” Herrick
Br. at 11, with “Ms. Yen submitted a Rule 34 response
to the 32 separately-numbered document requests
comprising the Met's Fifth Document Request ...,” id.

First, that various productions were made and responses
served in no way supports the proposition that “[t]he
Union Produced All Relevant Documents.” At the very
least, and aside from the documents the Opinion finds
were not produced, the admitted deletion of scores of
electronic documents precludes anyone's ever knowing
whether all relevant documents were produced. The text
is a non-sequitur to the heading.
Second, as to Herrick's request that the record of
compliance by defendants and their counsel be taken into
account, I would have thought that it was clear that a
lengthy opinion devoting some thirty-one pages in Federal
Rules Decisions to “The Course of Discovery” would be
seen as taking into account all of the conduct involved in
the discovery process, including the productions made by

the Union (and, indeed, conduct by the Met's counsel).
See 212 F.R.D. at 182. To the extent that there is any
ambiguity, however, I state unequivocally that all of
the Union's productions were taken into account in the
underlying sanctions motion and in this reconsideration
motion as well. Herrick's oft-cited reprise that the Union
produced a large number of documents is, however,
insufficient to overcome the numerous serious abuses of
the discovery process by the Union and its counsel. These
and the other factual matters raised by Herrick do not
merit a change in the underlying sanctions decision. (See
Lans III ¶ 42.)

B. Legal Matters
*6 In arguing that “controlling precedents were
overlooked or misconstrued by the Court,” Herrick Br. at
15, Herrick argues principally that, as to Rule 37, Second
Circuit precedent required proof of prejudice before such
sanctions may be imposed, id. at 15-17, and, as to Rule
37, Rule 26(g) and 28 U.S.C. § 1927, sanctions may not be
imposed without proof of relevance of the documents in
question, id. at 17. Herrick does not address the Court's
inherent power. Both of these arguments were raised, and
rejected, in the underlying sanctions decision.

1. Rule 37
Herrick argues that prejudice must be shown under Rule
37 as a predicate to sanctions. As noted, this argument
was fully presented in Herrick's original opposition papers
and rejected in the Opinion. See 212 F.R.D. at 229 (“the
Union's assertion that the Met must show prejudice before
a sanction may be ordered under Rule 37 is without
merit”). Thus, this argument is, in fact, a do over. Perhaps
worse, however, this argument ignores the very next two
paragraphs of the Opinion where prejudice was expressly
found. See 212 F.R.D. at 229 (“[I]t is beyond peradventure
that many documents have been destroyed that related
directly to events taking place during the most critical time
period in this action, that is, when the Union planned
its campaign against the Met, decided what its leaflets,
letters and other public statements would say and on
what basis”; “the documents that have been produced
were often produced in an untimely, disorganized fashion,
after numerous letters and telephone calls were exchanged
and court conferences held and after the depositions
of relevant witnesses. The Met was not only denied
the opportunity to prove its case, but was denied the
opportunity to plan its strategy in an organized fashion

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as the case proceeded”; “documents that were produced
were not produced as required by Rule 34, that is, in
the manner in which they were maintained or according
to request number, see Fed.R.Civ.P. 34(b), and many
important documents were produced after the depositions
of key witnesses. All of these obstructions prevented the
Met from adequately planning and preparing its case; it
was forced to proceed with depositions before relevant
documents were produced, it was no doubt hampered
in opposing summary judgment and, ultimately, in
preparing for trial.”). Herrick's argument that sanctions
under Rule 37 should be reconsidered because prejudice
is required for such sanctions when prejudice was found
is, charitably, somewhat below the standard required on
reconsideration.
Even in arguing that prejudice is required before sanctions
may be imposed under Rule 37, Herrick has not now
pointed to any law the Court overlooked, but rather
attempts to distinguish two cases cited in the Opinion on
this point, Miller v. Time-Warner Communications, No. 97
Civ. 7286, 1999 U.S. Dist. LEXIS 14512, at *5 (S.D.N.Y.
Sept. 22, 1999), and Skywark v. Isaacson, No. 96 Civ.
2815, 1999 U.S. Dist. LEXIS 23184, at *20 (S.D.N.Y
Oct. 15, 1999), on the basis that the documents withheld
or tampered with in those cases were relevant whereas,
Herrick claims, those withheld or destroyed in this case
were not. (See Herrick Br. at 15-16.) Again, that attempted
distinction is without merit because the Opinion found as
a factual matter that the documents at issue were relevant.
For example, it found that “Union counsel's position that
the Weekly Reports were not ... relevant is wholly without
merit,” 212 F.R.D. 197 n. 14, and goes on to note that
those documents report Union members' daily activities,
including campaign planning and meetings regarding
campaigns, such as the Union's campaign against the
Met. Herrick argues that such information is not relevant
because it “would not advance the Met's secondary
boycott claim because it would not contain any evidence
of violence or threats that are necessary to the pleading of
an unlawful secondary boycott claim....” (Herrick Br. at
12.) Such an argument reflects an overly narrow reading
of the Met's complaint and of the meaning of relevance.
*7 As to the former, the Met's complaint contains
several claims in addition to its secondary boycott
claim. For example, as to the Met's trespass claim,
as noted in Lans III ¶ 63(c), a Weekly Report that
was produced demonstrated a trespass by documenting

a Union member's presence inside the Opera House
distributing leaflets on a date complained of by the Met.
The information called for by the Weekly Reports might
also have established the extent of the dissemination of
defamatory materials, demonstrated ratification of Union
management's activities in its campaign against the Met
and proved the dates when leafletting occurred (relevant
to the Union's statute of limitations defense).
As to the latter, relevance, the Weekly Reports could well
have led to other admissible evidence, e.g., testimony of
individuals involved in the activities at issue, documents
not theretofore produced, such as House Visit reports.
(See Lans III ¶ 63(c).) The suggestion that documents
ordered produced, such as the Weekly Reports, were not
relevant is without merit.
Even assuming that the documents requested were not
relevant, the law does not support Herrick's view that a
party or its counsel may ignore a court order to produce
materials because it considers them irrelevant. 12 In Van
Pier v. Long Island Sav. Bank, No. 97 Civ. 6295, 1998
U.S. Dist. LEXIS 15170, at *2 (S.D.N.Y. Sept. 29, 1998),
the magistrate judge granted sanctions pursuant to Rule
37 in connection with plaintiff's failure to comply with
an order to produce certain documents. Plaintiff filed
objections with the district court, claiming that he did
not produce the documents because he believed either
that they were not relevant or that they were already in
the defendant's possession, but Judge Rakoff affirmed
the imposition of sanctions because “these objections
became irrelevant once the Magistrate Judge ordered the
parties to produce all documents in their possession ...
and plaintiff, rather than complying with the order or
appealing from it, chose to ignore it.” Van Pier, 1998
U.S. Dist. LEXIS 15170, at *3; see also McDonald v.
Head Criminal Court Supervisor Officer, 850 F.2d 121,
124 (2d Cir.1988) (affirming district court's dismissal of
pro se plaintiff's action for failure to comply with court
order concerning discovery because “[a]n order issued
by a court must be obeyed, even if it is later shown to
be erroneous”); Davidson v. Dean, 204 F.R.D. 251, 258
(S.D.N.Y.2001) (“Once the discovery Orders in this case
were issued, plaintiff had two choices-to comply with the
Orders or to appeal. Plaintiff did appeal the Orders and
lost. Plaintiff's only choice at that point was to comply
with the Orders, and only the Court ... could excuse him
from that obligation.”); Worldcom Network Servs., Inc. v.
Metro Access, Inc. ., 205 F.R.D. 136, 143 (S.D.N.Y.2002)

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(“sanctions are permissible under Rule 37(b)(2) when a
party fails to comply with a court order, regardless of the
reasons”).
12

The one case from this Circuit that Herrick relies on
for a contrary view is wholly inapposite. In Fonseca v.
Regan, 734 F.2d 944 (2d Cir.1984), the Government,
by means of what the Court of Appeals called a
“cosmic interpleader,” sought information from the
plaintiff in the guise of discovery that was, in fact,
only relevant to a potential criminal prosecution of
him and others and had nothing whatsoever to do
with the pending civil case. The far different factual
setting in Fonseca makes its holding inapplicable here.

*8 As the Opinion noted, counsel on more than one
occasion ignored document requests (even after the Court
ordered them to produce the documents at issue) because,
in their view, the documents called for were irrelevant.
See, e.g., 212 F.R.D. at 200-01 (during a teleconference
with the Court, Yen “said the [Weekly] [R]eports did
not matter because the employees' calendars showed the
same information” and defendants never fully complied
with Court order that reports be produced); id. at 205-07
(during a conference the Court overruled Yen's belated
relevance objection and Moss' objection to a document
request as “blunderbuss” and ordered defendants to
respond to the request). In sum, the issues raised on
reconsideration do not alter the Opinion's findings as to
Rule 37.

2. Rule 26 and 28 U.S.C. § 1927
As noted above, Herrick's argument that sanctions are
inappropriate because the discovery sought by the Met
was irrelevant is not supported by case law and is
factually incorrect. Beyond the documents that were
the subject of court orders (and thus relevant under
Rule 37), whole categories of unproduced documents
are undeniably relevant. For example, as noted in the
discussion of prejudice, many of the documents that were
destroyed “related directly to events taking place during
the most critical time period in this action, that is, when
the Union planned its campaign against the Met, decided
what its leaflets, letters and other public statements would
say and on what basis.” 212 F.R.D. at 229. To suggest that
these documents are irrelevant is, charitably, incorrect.
More importantly, however, any argument as to relevance
completely misses the point. Sanctions under Rule 26(g)
are imposed when a paper signed and filed has been

interposed for an improper purpose or where a competent
attorney could not have reasonably believed that the
paper was well grounded in fact and warranted by
existing law. See Fed.R.Civ.P. 26(g) Advisory Committee
Notes to 1983 Amendment (Rule “provides a deterrent
to both excessive discovery and evasion by imposing
a certification requirement that obliges each attorney
to stop and think about the legitimacy of a discovery
request, a response thereto, or an objection”). Here, where
counsel's certifications were not even modified by some
sort of reservation that all “relevant” documents had
been produced, the Opinion found that counsel's repeated
certifications that all responsive documents had been
produced to the Met, or that there were no responsive
documents, “were made without any real reflection or
concern for their obligations under the rules governing
discovery and, in the absence of an adequate search for
responsive documents, without a reasonable basis.” 212
F.R.D. at 221-22. Indeed, the Opinion held that the
knowing and egregious nature of the certifications led to
the conclusion that they could only have been interposed
for an improper purpose. Id. at 222. Herrick has shown
no reason why the imposition of sanctions under Rule 26
was inappropriate.
*9 Sanctions under 28 U.S.C. § 1927 are appropriate
where an attorney unreasonably and vexatiously
multiplies the proceedings and needlessly increases the
cost of discovery. See United States v. Int'l Bhd. of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 948 F.2d 1338, 1345 (2d Cir.1991). Herrick's
argument that sanctions under § 1927 were improper
because its only discovery misconduct related to nonproduction or belated production of irrelevant documents
fails because, even had the documents been irrelevant,
(1) the law is clear that § 1927 has to do with vexatious
conduct, and (2) the record here is replete with evidencenowhere discussed by Herrick-of bad faith delay and
obstruction by Herrick. 13 The cases indicate that the
relevance of the material or the “appropriateness” of
the ultimate response to discovery requests does not
necessarily bear on the decision to impose sanctions
under this statute. Rather, the basis for the sanction is
the vexatious manner in which the attorneys acted in
responding to the discovery requests. For example, in
Wine Mkts. Int'l, Inc. v. Bass, 977 F.Supp. 601, 605-06
(E.D.N.Y.1997), the court found that the imposition of
sanctions for counsel's refusal to produce witnesses for
deposition and other dilatory tactics was appropriate,

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even though depositions eventually occurred within the
time period directed by the court. In Apex Oil Co. v.
Belcher Co. of New York, Inc., 855 F.2d 1009, 1020
(2d Cir.1988), the Court of Appeals affirmed the district
court's imposition of sanctions under § 1927 where
defendant's counsel had refused to comply with plaintiff's
discovery requests until plaintiff's counsel made a motion
to compel. By focusing on the strawman of relevance and
ignoring the conduct on which the § 1927 sanction were
based, Herrick has provided no reason why such sanctions
were inappropriate.
13

As noted, Herrick does not even mention the Court's
imposition of sanctions as part of its inherent powers.
That imposition here, of course, had to do with
defendants' and counsel's overall and overwhelming
pattern of bad faith misconduct having to do only in
part with the withholding of relevant documents.

C. Notice
Herrick argues, astonishingly, that it had no notice
that it might be subject to sanctions, because “the
first indication from the Court that attorneys may have
engaged in sanctionable conduct ... was the issuance of
the January 30, 2003 Opinion.” (Herrick Br. at 17-19
(emphasis added).) Specifically, Herrick argues that the
Met's repeated comments about seeking sanctions, its
request for and taking of discovery into defendants' and
their counsel's compliance with their respective discovery
obligations, its request to file a motion seeking sanctions
against defendants and their counsel and its formal
motion seeking sanctions against defendants and their
counsel were not enough and that the Court was required
to give Herrick some more explicit order and warning.

and repeated demonstrations of incomplete compliance
and non-compliance with discovery requests,” id. at 222,
constituted warnings early and often to Herrick that its
conduct of discovery was alleged to be blameworthy.
As noted in the Opinion, for example, Met counsel
warned the Union on several occasions that if appropriate
responses to the Met's discovery requests were not
forthcoming, sanctions would be sought. See id. at 230.
When the Met did propose sanctions in its December 18,
2001 letter to the Court, it asked first for the benefit of
discovery on the defendants' and their counsel's discovery
compliance, which I granted. 16 Id. at 203. On March
13, 2002, I issued a written order overruling defendants'
objections to the depositions of two Herrick lawyers (Yen
and Lynett) on the issue of their actions pertaining to
discovery. Furthermore, I directed that the depositions
proceed, making it plain, again, that the lawyers' conduct
was under scrutiny. Another written order was issued
on March 21, 2002, directing “inquiry of the listed
witnesses [including Herrick attorneys Lynett and Yen,]
concerning discovery compliance without restriction as to
time” and referring to “the serious questions raised about
defendants' discovery compliance.” (Lans III, Ex. 13.)
15

This argument, charitably, is hogwash. 14
14

This argument as to notice is also a do-over because
it was made in the underlying sanctions motion and
rejected in the Opinion. See 212 F.R.D. at 183 n. 4.

First, as a factual matter, from the May 2000 contempt
and injunction hearings forward, the record shows more
than ample notice to defendants and their counsel
that their compliance with their respective discovery
obligations was a matter of scrutiny and that sanctions
could be awarded. 15 Indeed, as the “referee on the ground
in this engagement,” 212 F.R.D. at 182, it is fair to say
that “Met counsel's continuing high-decibel allegations
of [Union counsel's] failure to make adequate inquiry

16

The fact that formally-styled motions to compel were
not made is of no import. Defendants and their
counsel not only participated without objection in
numerous conferences about discovery but they also
repeatedly solicited the Court's informal rulings by
letters and telephone calls. Indeed, I made numerous
discovery rulings throughout the case upon letter
applications, informal conferences and telephone
calls, some from depositions. See 212 F.R.D. at 218.
Herrick and its counsel well know that oral orders and
orders made without the need for formal writings are
as obligatory as any other order.
As the transcript of a conference with the Court on
January 7, 2002 (quoted in the Opinion) makes clear,
counsel's conduct during the discovery process was
squarely in issue and was to be investigated during
compliance discovery. See 212 F.R.D. at 207.

*10 Finally, on April 12, 2002, having reviewed the Met's
motion for sanctions against defendants and their counsel,
including Herrick, and Moss' April 12 letter and having
conferred with all counsel, I issued yet another written
order adjourning the trial and rejecting defendants' and
Herrick's contention that the Met's motion for sanctions
was “silly.” (See Moss Decl., Ex. A (Moss April 12, 2002
letter) at 7).) The order stated that the Met's motion was

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not frivolous but rather presented issues of serious concern
and directed the defendants and their lawyers to respond
in full. (Lans III, Ex. 4.) The opposition papers submitted
by Herrick addressed counsel's own conduct and, indeed,
contained more defense of Herrick's conduct than of its
clients' conduct.

In any event, there is no requirement that the Court find
that orders were violated to permit sanctions under Rules
26(g), 28 U.S.C. § 1927 or as part of the Court's inherent
authority, three of the bases on which the sanctions were
levied in this case.

Even without the strength of the record on the issue
of notice in this case, the law in this Circuit does not
support Herrick's argument. See Daval Steel Products
v. M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir.1991)
(“Parties and counsel have no absolute entitlement to be
‘warned’ that they disobey court orders at their peril.”).
Moreover, when any notice requirement does exist, it is
satisfied when a notice of a motion has been served seeking
the particular sanctions which ultimately are awarded.
See Peters-Turnbull v. Bd. of Educ., No. 96 Civ. 4914,
1999 U.S. Dist. LEXIS 16079, at *11 (S.D.N.Y. Oct. 20,
1999) (“[P]laintiff was given notice of the consequences
of her failure to respond to discovery ... when this Court
ordered the plaintiff to show cause why this case should
not be dismissed under Rule 37. Plaintiff was given further
notice when the Court ordered the defendants to move
for dismissal ....”), aff'd, 7 Fed. Appx. 107 (2d Cir.2001).
Here, the Met expressly moved for “judgment, attorneys'
fees and further relief” under, inter alia, Rules 26 and
37, 28 U.S.C. § 1927 and the Court's inherent power
against Herrick as well as against the defendants. Indeed,
under § 1927, only a lawyer can be sanctioned, as the
Met discussed in its memorandum of law on the motion.
Herrick's briefing in response, in which it argued the
lawyers' lack of culpability, demonstrates beyond cavil
that Herrick had notice that sanctions were being sought
against that firm.

E. Conclusion
*11 Accordingly, for the reasons set forth above and
because none of the matters raised is sufficient to change
the result, having reconsidered the sanctions motion as to
Herrick, I adhere to my prior decision in the Opinion.

D. Orders
Finally, Herrick argues that no orders were violated,
(see Herrick Br. at 20), but again is wrong on the facts.
Although Herrick continues to nitpick, it is crystal clear
that, for example, (1) Weekly Reports for all Union
employees who “participated in any way in Local 100's
effort ... at the Met” were not produced as ordered
(or their non-production properly explained), see Lans
III at ¶¶ 44-49; (2) admitted deficiencies in the Union's
retention and production of electronic documents were
never addressed as ordered, including contacting all the
Union's ISPs to attempt to retrieve deleted documents, see
id. at ¶¶ 50-53; and (3) Ward's deposition did not proceed
as ordered, see 212 F.R.D. at 216-218, 225 n. 32, 226-27.

III. The Union's Motion
The two arguments made by the Union that are not
duplicative of those made by Herrick are that (1) the
First Amendment precludes the Court from directing
entry of judgment for liability on the Met's defamation
claim without the Court's first making detailed factual
findings as to which statements are defamatory and which
were uttered with malice, and (2) judgment was improper
because certain of the Met's claims were legally insufficient
on their face.
As Judge Leisure has so aptly summarized the law:
A party seeking reconsideration is not
supposed to treat the court's initial
decision as the opening of a dialogue
in which that party may then use such
motion to advance new theories or
adduce new evidence in response to
the court's rulings.... The Court cannot
overlook legal arguments it was not
presented with in the motion papers....
It is well established that [a] motion for
reconsideration is [also] not a vehicle
for plugging the gaps of the lost motion
with additional matters.

Wechsler v. Hunt Health Sys., Ltd., 186 F.Supp.2d 402,
410-11 (S.D.N.Y.2002) (internal quotation marks and
citations omitted). It is clear that a party has no more
right to have new theories heard on reconsideration than
on appeal. Chitkara v. N.Y. Tel. Co., 45 Fed. Appx. 53,
55 (2d Cir.2002); Forsyth, 2003 U .S. Dist. LEXIS 3314,
at *1 (losing party may not advance new arguments on a
motion for reconsideration); In re Oil Spill by the “Amoco
Cadiz”, 794 F.Supp. 261, 267 (N.D.Ill.1992) (motions to

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reconsider may not be used to “raise legal argumentation
which could have been heard during the pendency of the
previous motion”), aff'd, 4 F.3d 997 (7th Cir.1993).
Here, the Union raises only arguments that could have
been but were not raised initially, without any explanation
for the failure to raise them the first time around. I
noted this problem initially at the February 10, 2003
conference in discussing the Union's failure to raise the
First Amendment issue in the underlying motion:
Can I ask why we didn't brief this in connection with the
motion where counsel sought liability for discovery abuse?
Where were they on that? Why wasn't that briefed then?
If you say that the sanction of liability may not be imposed
in a defamation, for example, case, where was that in the
briefing? Never mentioned, correctamento?

(2/10/03 Tr. at 8.)
The Union has not cited any authority suggesting a special
exception to the standards governing reconsideration
motions when purported First Amendment concerns
are raised, and the law in fact suggests that First
Amendment arguments are every bit as “waivable” as
any others. See, e.g., Word v. Croce, No. 00 Civ. 6496,
2001 U.S. Dist. LEXIS 9071, at *14 (S.D.N.Y. July 6,
2001) (denying reconsideration where the issue raised was
retaliation for the exercise of First Amendment rights);
Costello v. McEnery, No. 91 Civ. 3475, 1994 U.S. Dist.
LEXIS 13619, at *3-6 (S.D.N.Y. Sept. 26, 1994) (denying
reconsideration where the claim was of a discharge in
retaliation for the exercise of First Amendment rights);
Creek v. Village of Westhaven, No. 83 C 1851, 1993
U.S. Dist. LEXIS 10634, at *8-10 (N.D.Ill. Aug. 2,
1993) (denying reconsideration where defendants raised
the issue of First Amendment protection for their actions
for the first time on reconsideration and defendants failed
to offer any reason why the First Amendment argument
could not have been briefed initially). As discussed below,
there is, in fact, no First Amendment issue raised by the
sanctions decision in any event.
*12 Furthermore, aside from the First Amendment
argument that could have been raised on the sanctions
motion, most of the quibbles the Union now raises
concerning the legal sufficiency of the Met's claims were
previously advanced and have already been rejected,
establishing the law of the case. For that further reason,

the Union's arguments are barred now. For example,
defendants argued lack of ratification in opposition to
the Met's motion for contempt and preliminary injunctive
relief, see Lans III, Ex. 3 (excerpt from Local 100's prehearing brief), but I ruled in the Met's favor, finding
a likelihood of success on the Met's claims. Defendants
unsuccessfully challenged the Met's prima facie tort
claim in their summary judgment motion on the same
grounds asserted again now. (Id., Ex. 2.) Defendants
also unsuccessfully challenged in their summary judgment
motion the Met's secondary boycott claim on the same
preemption and substantive grounds as they now do
now. (Id.) The Union is precluded from presenting these
legal arguments yet again by, among other principles,
the doctrine of law of the case. See In re Crazy Eddie
Sec. Litig., 948 F.Supp. 1154, 1161 (E.D.N.Y.1996)
(citing In re Joint Eastern District and Southern District
Asbestos Litig., 18 F.3d 126, 129 (2d Cir.1994) (citations
omitted)). 17
17

Defendants did not move for summary judgment
against the Met's defamation or tortious interference
claims, and one assumes they would have if they
believed the claims to be so deficient as they now
claim. Their not moving (especially in light of the
wide-ranging nature of that motion) suggests a
recognition that the Met's claims were, at the very
least, facially sufficient.

In sum, the Union's motion is patently improper, both
because it raises issues for “reconsideration” that could
have been raised in opposition to the sanctions motion but
were not and because it raises issues that were disposed
of by earlier rulings in this case. Accordingly, the Union's
motion for reconsideration is denied. Nevertheless, in
the alternative, because of the serious nature of the
misconduct detailed in the Opinion and the high place
the first Amendment occupies in our pantheon of
rights, the Union's motion for reconsideration is granted.
Upon reconsideration, however, I adhere to my previous
decision with respect to the Union.

A. First Amendment Issues
Research has disclosed no case law holding that a
judgment on liability cannot be entered on a defamation
claim either generally or specifically as a sanction for
misconduct under Rules 26 and 37, 28 U.S.C. § 1927
or the Court's inherent power. Indeed, the Union cites
no case to support its argument that special rules apply

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to defamation cases which preclude the award of those
sanctions otherwise available except after the defamation
claims are, in effect, tried on the merits and findings made
as to each allegation. To the contrary, a number of cases
have directed the entry of judgment against defendants
on defamation claims as a discovery sanction or for
failure to answer. See, e.g., Lothschuetz v. Carpenter,
898 F.2d 1200 (6th Cir.1990) (sustaining the entry of
a default judgment as to liability on a libel claim as a
sanction for defendants' discovery misconduct); Adolph
Coors Co. v. Movement Against Racism and the Klan, 777
F.2d 1538 (11th Cir.1985) (affirming the district court's
entry of judgment on a defamation claim as a discovery
sanction. Defendants had declined to produce documents
on the basis that they were constitutionally privileged to
withhold disclosure where the disclosure requested would
put their members at risk of harm from Klan groups and
impair defendants' and their members' First Amendment
rights. The district court ruled that the disclosure was
proper and did not create such a risk. Plaintiff was
granted judgment on its defamation claims as a sanction
for defendants' refusal to make disclosure); Professional
Seminar Consultants, Inc. v. Sino Am. Tech. Exch. Council,
Inc., 727 F.2d 1470 (9th Cir.1984) (affirming a default
judgment as to liability on plaintiff's libel and conversion
claims as a sanction for the proffer of false documents);
see also Israel Travel Advisory Serv., Inc. v. Israel Identity
Tours, Inc., 61 F.3d 1250 (7th Cir.1995) (upholding the
district court's dismissal of defendant's counterclaims for
discovery abuse and noting that the district court could
also properly have entered judgment for plaintiff on its
defamation (and other) claims); Walia v. Vivek Purmasir
& Associates, 160 F.Supp.2d 380 (E.D.N.Y.2000) (entry
of a default judgment for failure to answer a defamation
claim was proper).
*13 Further, the logic of the cases dictates that no
special First Amendment exception be created. It has
long been the law that there is no due process bar to
default or dismissal where, as here, a party disregards its
discovery obligations with willfulness and in bad faith. 18
See Hammond Packing Co. v. State of Arkansas, 212
U.S. 322, 350-54, 29 S.Ct. 370, 53 L.Ed. 530 (1909);
Societe Internationale Pour Participations Industrielles Et
Commerciales, S.A. v. Rogers, 357 U.S. 197, 209-12,
78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). The law holds,
and logic dictates, that by virtue of the non-complying
defendant's obstruction of discovery, it is deemed to have
waived its rights, and the court is permitted to infer

that the evidence withheld by defendants and the legal
conclusions to be drawn from that evidence would be
adverse to the defendants. Indeed, such a presumption is
viewed as necessary to preserve the constitutional right
of due process. As the Supreme Court explained in
Hammond Packing, it is
18

The Court of Appeals has held that the requisite
showing of fault for the valid entry of default or
dismissal is also satisfied by a showing of gross
negligence. See Cine Forty-Second Street Theatre
Corp. v. Allied Artists Pictures Corp., 602 F.2d at
1066-68 (2d Cir.1979).

the undoubted right of the lawmaking power to create a
presumption of fact as to the bad faith and untruth of
an answer to be gotten from the suppression or failure to
produce the proof ordered, when such proof concerned
the rightful decision of the cause.... [T]he preservation of
due process [i]s secured by the presumption that the refusal
to produce evidence material to the administration of due
process was but an admission of the want of merit in the
asserted defense.
Hammond, 212 U.S. at 350-51; see also Societe
Internationale, 357 U.S. at 210 (quoting Hammond ).
Both in Hammond Packing and later in Insurance Corp.
of Ireland Ltd. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), the
Supreme Court emphasized that the rights of litigants in
our civil justice system are conditioned on compliance
with procedural rules. Hammond Packing, 212 U.S. at 351
(noting that there are “many other presumptions attached
by the law to the failure of a party to a cause to specially
set up or assert his supposed rights in the mode described
by law.”); Insurance Corp. of Ireland, 456 U.S. at 705
(“The expression of legal rights is often subject to certain
procedural rules. The failure to follow those rules may well
result in a curtailment of the rights.”). In both decisions
the Court equated the sanction of default to a waiver by
the malefactor of the opportunity to contest the factual or
legal basis for the adverse ruling or judgment imposed as a
sanction. Hammond Packing 212 U.S. at 351 (analogizing
a default based on discovery non-compliance to a default
because of a failure to answer “based on a presumption
that the material facts alleged or pleaded were admitted
by not answering”); Insurance Corp. of Ireland, 456 U.S.
at 706 (“the sanction is nothing more than the invocation
of a legal presumption or, what is the same thing, the
finding of a constructive waiver”). Finally, the Court in

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Insurance Corp. of Ireland made clear that the nature of
the underlying right waived had no effect on the validity of
the sanction, which turns solely on whether the trial court
has abused its discretion. Id. at 707.
*14 Pursuant to Hammond and Insurance Corp., as well
as the court of appeals decisions from various circuits cited
above specifically affirming the entry of judgment as a
sanction in defamation cases, it was certainly well within
my discretion to enter judgment against defendants.
Defendants were afforded a full and fair opportunity to
litigate their defenses but they chose instead to obstruct
discovery. 19 By virtue of their malfeasance, defendants
have in effect conceded the validity of the Met's claims
and waived their defenses. In other words, as the Supreme
Court stated in Insurance Corp., “[t]he sanction took
as established the facts”-here, inter alia, the false and
defamatory nature of the pleaded statements and the
actual malice of defendants-“that [the plaintiff] was
seeking to establish through discovery. That a particular
legal consequence ... follows from this, does not in any way
affect the appropriateness of the sanction .” Id. at 709.
19

Indeed, because many of the documents requested
by the Met were lost, destroyed or simply never
produced, the Met was entitled to a presumption that
these documents would have been material to its case.
See Hammond Packing, 212 U.S. at 380 (court “must
assume” that items that defendants failed to produce
were “material”).

The Union discusses none of the foregoing authority.
Further, none of those cases it does cite has anything
to do with a situation where defendants were deemed to
have abandoned their right to litigate as a sanction for
misconduct. New York Times v. Sullivan, 376 U.S. 254, 84
S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny-Hustler
Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99
L.Ed.2d 41 (1988); Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d
502 (1984); Old Dominion Branch No. 496, Nat. Ass'n of
Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 94 S.Ct.
2770, 41 L.Ed.2d 745 (1974); Linn v. United Plant Guard
Workers of America, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d
582 (1966); and Edwards v. South Carolina, 372 U.S. 229,
83 S.Ct. 680, 9 L.Ed.2d 697 (1963)-all concern the burden
of proof in defamation cases where, unlike here, the parties
had properly litigated within the Federal Rules of Civil
Procedure. Moreover, the application of the New York
Times v. Sullivan standards in labor cases, under Linn, is a

matter of analogy, not constitutional mandate. See Robert
D. Sack, Sack on Defamation § 5.7 (3d ed.2004).
Commodity Futures Trading Commission v. Vartuli, 228
F.3d 94 (2d Cir.2000), and United States v. Various
Articles of Obscene Merchandise, Schedule No. 1769, 600
F.2d 394 (2d Cir.1979), are equally inapposite. First,
the claim upon which default judgment was granted in
Vartuli sounded in fraud-not defamation-so there was no
discussion of the trial court's supposed obligation to hear
evidence on the standards set forth in New York Times v.
Sullivan before imposing default judgment. Second, Local
100 incorrectly asserts that the Court of Appeals vacated
the trial court's imposition of default judgment. In fact,
the Court of Appeals upheld the default judgment entered
against one of the co-defendants, but remanded the case
for reconsideration of the relief granted to the plaintiffnamely an injunction. Vartuli, 228 F.3d at 112. Thus,
the actual holding of Vartuli has nothing to do with this
case, where the Court has only entered judgment, and
consideration of the appropriate relief will be assessed
separately. 20 Similarly, Various Articles of Obscene
Merchandise has no application here. A default judgment
was issued in that case against allegedly obscene materials
where recipients of the materials had either acquiesced
to forfeiture or had failed to file answers. The Court of
Appeals held that the First Amendment prohibited such
a default because it was highly unlikely that the intended
recipients of allegedly obscene materials would contest
forfeiture and hence the resulting “destruction of books,
magazines and films [would] become an unreviewed act
of censorship.” Id. at 399. By contrast, the judgment
here raises no concern of censorship where defendants
answered the complaint and vigorously litigated the Met's
claims, including on a motion for summary judgment, but
ultimately waived their right to defend by failing in their
discovery and other obligations.
20

To the extent that the Union is attempting to assert
that default judgment constitutes an impermissible
prior restraint in violation of the First Amendment
prohibition, see Memorandum in Support of the
Motion of Defendant Local 100 to Reconsider and
to Vacate the Court's January 28, 2003 Order dated
March 3, 2003 (“Union Br.”) at 4 (discussing the
Court of Appeals' decision vacating the preliminary
injunction entered earlier in this case and complaining
that this Court has not “set[ ] forth the exact
statements ... held to be unlawful”), the Union is
incorrect. As noted above, the Opinion only spoke to

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liability, not relief, and, moreover, included no order
restraining any future speech by the Union (see infra
). In any event, there is no confusion about the nature
of conduct for which defendants have been held liable
in this case-it is clearly spelled out in the complaint.
See In re Crazy Eddie Sec. Litig., 948 F.Supp. 1154,
1160 (1996) (“[A] default effectively constitutes an
admission that ... the acts pleaded in a complaint
violated the laws upon which a claim is based and
caused injuries as alleged.”).

*15 Finally, the Union's censorship or “chilling”
argument is entirely erroneous because the First
Amendment is not implicated by the entry of judgment
as to liability in this case. The Union presumes that the
Opinion has a precedential and therefore potentially in
terrorem effect on future expression. However, a judgment
entered as a discovery sanction is not an adjudication on
the merits and has no collateral estoppel effect outside
the case in question. See Willy v. Coastal Corporation,
503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992)
(Rule 11 sanctions were properly imposed in the case even
though the district court was later determined to lack
subject-matter jurisdiction because the sanctions order
was “collateral to the merits,” id. at 137; further: “there is
no constitutional infirmity under Article III in requiring
those practicing before the courts to conduct themselves
in compliance with the applicable procedural rules ...,” id.
at 139); cf . Amato v. City of Saratoga Springs, 170 F.3d
311, 323 (2d Cir.1999) (noting that “of course a default
judgment lacks preclusive effect in other litigation”);
Abrams v. Interco, Inc., 719 F.3d 23, 39 n. 9 (2d Cir.1983)
(noting that “the decision of issues not actually litigation,
e.g., a default judgment, has no preclusive effect in other
litigation”); Talib v. Garcia, No. 98 Civ. 3318, 2000 U.S.
Dist. LEXIS 9752, at *12-13 (S.D.N.Y. July 12, 2000)
(reviewing law in various circuits and noting that the
majority of courts, including those in New York, hold
that a default judgment does not support issue preclusion).
Here, while the judgment entitles the Met to relief for
defamation as a procedural matter, it does not stand as
an adjudication on the merits that would bar any future
expression (except against the Met) of those statements
alleged by the Met to have been defamatory.

B. Sufficiency Issues
Citing the undisputed principle that a default judgment
may only be granted upon a well-pleaded complaint, the
Union incorrectly asserts that judgment must be vacated
here because the Met's claims against the Union are “all ...

meritless on their face.” (Union Br. at 6.) The Union not
only twists the meaning of a “well-pleaded complaint”-a
term of art at this stage of the proceedings which, in any
event, affords the non-defaulting party significant leeway
in its pleading-but also ignores the fact that the sufficiency
of the Met's pleading has already been upheld against
defendants' challenges on the motions for contempt and
injunctive relief and the defendants' motion for summary
judgment.
After the entry of a default judgment, the assessment
of the “well-pleaded” nature of a complaint is
subject to “considerable latitude,” Levesque v. Kelly
Communications, Inc., No. 91 Civ. 7045, 1993 U.S. Dist.
LEXIS 791, at *19 (S.D.N.Y. Jan. 25, 1993), and “[o]nly
‘in very narrow exceptional circumstances' may a court
find an allegation not ‘well pleaded.” ’ In re Crazy
Eddie Sec. Litig., 948 F.Supp. 1154, 1160 (E.D.N.Y.1996)
(quoting Trans World Airlines, Inc. v. Hughes, 449 F.2d
51, 63 (2d Cir.1971), rev'd on other grounds, 409 U.S. 363,
93 S.Ct. 647, 34 L.Ed.2d 577 (1973)). Moreover, so long
as the facts alleged in the complaint “might ... have been
the case,” they cannot successfully be controverted by
the defendant. Thomson v. Wooster, 114 U.S. 104, 115,
5 S.Ct. 788, 29 L.Ed. 105 (1885) (emphasis added); see
also Hughes, 449 F.2d at 63 (endorsing district court's
list of the narrow circumstances in which a complaint
is not well-pleaded: (1) allegations in the complaint are
internally inconsistent, (2) allegations are “contrary to
uncontroverted material in the file of the case,” or (3)
allegations are contrary to “indisputable” facts judicially
noticed by the court) (internal quotations and citation
omitted); In re Crazy Eddie Sec. Litig., 948 F.Supp. at
1160 (“Although a court has discretion to determine
whether the facts alleged in a complaint state a valid cause
of action, a defaulting party ordinarily cannot contest
the merits of the plaintiff's claim absent ‘indisputable’
contradictory evidence”) (citations omitted). Here, the
Union has shown nothing that “renders inconceivable
the likelihood” that the Met could have proved that its
challenged claims are all proper as a matter of law and the
law of the case. Hughes, 449 F.2d at 64.
*16 The Union has waived its right to a full hearing on
the merits by virtue of its misconduct and must live with
the consequences:
It would usher in a new era in
the dynamics of litigation if a party
could suffer a default judgment to

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be entered against it and then go
about its business as if the judgment
did not exist and as though, despite
the opportunities to comply with the
court's orders and to defend on the
merits which had been ignored, the
slate was wiped clean and a new day
had dawned. To state the proposition
is to expose the folly of it.

Hughes, 449 F.2d at 63-64.
As noted above, the well-pleaded nature of the Met's
complaint has already been found by my review and
rejection of defendants' previous challenges to the
sufficiency of many of the Met's claims. Those prior
rulings are the law of the case, which I decline to disturb.
See In re Crazy Eddie Sec. Litig., 948 F.Supp. 1154 at
1161 (previous “decisions [on the sufficiency of claims]
establish the law of the case, from which no departure is
warranted absent ‘weighty reasons.” ’) (citing In re Joint
E.D. & S.D. Asbestos Litig., 18 F.3d 126, 130 (2d Cir.1994)
(citing United States v. Adegbite, 877 F.2d 174, 178 (2d
Cir.), cert. denied, 493 U.S. 956, 110 S.Ct. 370, 107 L.Ed.2d
356 (1989))). By granting the Met's motion for injunctive
relief and ruling that the Met was likely to succeed on
the merits of its claims, including reviewing the elements
of each of those claims and the Met's pleading of them
in the face of the same arguments the Union now makes
again about, inter alia, lack of ratification, and in denying
defendants' motion for summary judgment (docket no.
56), I held that the Met had properly pleaded both the legal
elements and the facts to support its claims of ratification,
defamation, trade libel, interference, trespass, unlawful
secondary boycotting and prima facie tort and, indeed,
had offered substantial evidence to support those claims.

1. Pleadings under Martin v. Curran
In asserting that the Met failed properly to plead the
Union's liability pursuant to Martin v. Curran, 303 N.Y.
276, 101 N.E.2d 683 (1951), the Union ignores the Met's
detailed pleading concerning membership participation,
authorization and ratification. Compare Union Br. at
7-8 (citing only ¶ 90 of the Met's Amended Complaint)
with Am. Compl. ¶¶ 85-90 (entitled “Local 100 Members'
Knowledge of, Actual Participation in, Authorization of,
and Ratification of Defendants' Tortious Acts”). When
read in its entirety, the Met's Amended Complaint fully

satisfies the requirements of Martin v. Curran, particularly
in light of the “considerable latitude” that must be
permitted in assessing whether the Met's complaint is wellpleaded. Levesque, 1993 U.S. Dist. LEXIS 791, at *19.
The Union argues that the Met has failed to plead that
Union membership had full knowledge of the Union's
specific tortious activities, Union Br. at 7, but, in fact,
that is precisely what the Met did. Having detailed in
preceding paragraphs the exact nature of defendants'
tortious activities, Am. Compl. ¶ ¶ 1-7, 23-84 (activities
which the Met referred to collectively as the Union's
“campaign”), the Met alleged that “Local 100 members
have had full knowledge of defendants' campaign as
described herein,” id. ¶ 85 (emphasis added); see also id. ¶
89 (“Not only have the rank and file of Local 100 had full
knowledge of defendants' tortious campaign against the
Met ...”) (emphasis added). The Met further specifically
alleged that Local 100 members (1) had been briefed
by defendant and now ex-President Henry Tamarin at
quarterly meetings about the Union's campaign against
the Met and had full access to Tamarin's correspondence
(a primary source of statements defaming the Met),
id. ¶ 86, (2) were “kept informed ... of defendants'
tortious activities” by Local 100's research director,
Brooks Bitterman, as well as by other internal union
communications, popular and Union press coverage and
the Internet, id. ¶ 88, and (3) attended “regular meetings”
to “strategize about the campaign against the Met” and
were assigned “responsibilities” related to the campaign
against the Met, id. ¶ 87. Moreover, the Met specifically
pleaded that the Union had held meetings “before every
major demonstration or attack against the Met both to
keep the membership informed of the latest developments
in the campaign and to enlist membership assistance in
executing future offensives against the Met.” (Id. ¶ 87.)
Finally, the Met alleged: “Local 100's membership has
ratified defendants' efforts to defame, harass, intimidate
and coerce the Met ... with full knowledge of the nature
and scope of the campaign....” (Id. ¶ 90.)
*17 The Union's assertion that the Met failed to
plead ratification adequately is simply wrong; the Met's
Amended Complaint, in satisfaction of Martin v. Curran,
alternatively pleaded that the Local 100 membership
participated in, authorized beforehand and/or ratified
after the fact the tortious activities specifically detailed
in the Met's complaint. See Giffords Oil Co., Inc. v.
Boss, 54 A.D.2d 555, 556, 387 N.Y.S.2d 51, 52 (2d Dep't

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1976) (liability under Martin v. Curran established by
proof of participation in, authorization of or ratification
of a union's tortious conduct); Saint v. Pope, 12
A.D.2d 168, 176, 211 N.Y.S.2d 9, 16 (4th Dep't 1961)
(same). The Met specifically pleaded, Am. Compl. ¶
89, that the membership had “actually participated in
defendants' numerous acts of defamation, harassment,
intimidation and trespass,” specified that the Union issued
instructions to the membership regarding “how to act
and what to say when leafleting and demonstrating
against the Met,” and quoted ex-President Tamarin's
saying that Union rallies against the Met were the
“best place” to see the membership. See Westchester
County v. Westchester County Federation of Labor, 129
N.Y.S.2d 211, 215 (N.Y.Sup.Ct.1953) (participation of
union membership in tortious activity at direction of
union officers satisfied requirement of Martin v. Curran
). The Met also specifically pleaded that the membership
“authorized defendants as their agents to pursue these
tortious activities,” Am. Compl. ¶ 85, and asserted that
“defendants have held ‘union meetings' before every major
demonstration or attack against the Met” id. ¶ 87, 101
N.E.2d 683. See Martin v. Curran, 303 N.Y. at 282, 101
N.E.2d 683 (liability established where union members
“expressly or impliedly” authorize or ratify the union's
tortious acts) (emphasis added).
In any event, the Met also adequately alleged that, with
“full knowledge” of the Union's conduct, the membership
of Local 100 ratified each of the tortious activities of
their union detailed in the Met's Amended Complaint.
“ ‘Ratification’ is a form of subsequent authorization
by which the principal, with knowledge of the material
facts, accepts responsibility for the agent's act whether it
was originally approved or not.” A. Terzi Productions,
Inc. v. Theatrical Protective Union, 2 F.Supp.2d 485, 492
n. 3 (S.D.N.Y.1998). Formal ratification is not required
under Martin v. Curran and may be “implied from the
members' conduct.” Soloway v. Delit, No. 90 Civ. 2273,
1992 U.S. Dist. LEXIS 14232, at *12 (S .D.N.Y. Sept.
21, 1992) (citing Martin v. Curran, 303 N.Y. at 282,
101 N.E.2d 683). Here, the Met specifically pleaded that
the Local 100 membership ratified “defendants' efforts
to defame harass, intimidate and coerce the Met”-fully
described in the preceding paragraphs of the Amended
Complaint-“both by continuing to confer actual and
apparent authority on defendants to wage this tortious
campaign against the Met on their behalf, and, with full
knowledge of the nature and scope of the campaign,

by not protesting or making any attempt to discontinue
or alter these attacks,” Am. Compl. ¶ 90. See Browne
v. International Brotherhood of Teamsters, 203 A.D.2d
13, 15, 609 N.Y.S.2d 237, 239 (1st Dep't 1994) (“a
union may ‘ratify’ or ‘authorize’ without going so far
as to openly encourage or embrace the tactics of its
official representative”) (internal quotations and citation
omitted). The Met also specifically pleaded that the Local
100 membership had “full knowledge” of the Union's
conduct through “regular meetings with union officers
and membership to strategize about the campaign against
the Met,” Am. Compl. ¶ 86, additional meetings “before
every major demonstration or attack against the Met
both to keep the membership informed of the latest
developments in the campaign and to enlist membership
assistance in executing future offensives against the Met,”
id. ¶ 87, 609 N.Y.S.2d 237 and “the constant coverage over
the past three years of [the] campaign against the Met in
the popular and union press and over the internet (spurred
on by the press released issued by Local 100's ‘research
director’ Brooks Bitterman),” id. ¶ 88, 609 N.Y.S.2d
237. See Westchester, 129 N.Y.S.2d at 215 (membership
ratified tortious activity “[b]y their silence” after “actions
of [union] officers were reported to the membership at a
duly called meeting”).
*18 Thus, the Union's argument appears to boil down
to the semantic quibble that the Met did not modify each
mention ‘of the Local 100 membership and of defendants'
tortious acts with the words “each and every.” The law
does not support such a petty argument. Taken in context,
it is clear that by “members” and “membership,” the
Met was referring to the entire membership of Local 100.
It is likewise clear that when the Met referred to the
tortious acts of defendants, it was referring back to all
the acts previously specified in the Amended Complaint
as “Factual Allegations Common to All Claims.” (Am.
Compl. at 5.) Finally, the Met is, of course, entitled to
enjoy the benefit of any doubt as to the meaning of its
pleadings (1) where it has clearly made the effort to satisfy
the requirements of Martin v. Curran (unlike the cases to
which defendants cite), 21 (2) where, again unlike the cases
to which defendants cite, 22 in the present posture, the
Met's pleadings must be liberally construed, see Hughes,
449 F.2d at 63; Levesque, 1993 U.S. Dist. LEXIS 791, at
*19, and (3) in light of defendants' spoliation and nonproduction of relevant documents as to member activities
and ratification.

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21

22

Defendants cite to a number of cases where (1)
plaintiffs failed to plead participation, authorization
or ratification at all, and/or (2) plaintiffs conceded
the inadequacy of their pleadings. See, e.g., Building
Industry Fund v. Local Union No. 3, 992 F.Supp.
162, 195 (E.D.N.Y. May 29, 1996) (plaintiffs failed
to allege authorization or ratification), aff'd w/o
opinion, 141 F.3d 1151 (2d Cir.1998); Modeste v.
Local 1199, Drug, Hosp. and Health Care Employees
Union, RWDSU, AFL-CIO, 850 F.Supp. 1156,
1160 (S.D.N.Y.) (plaintiff conceded claims were
invalidated under Martin v. Curran ), aff'd w/o opinion,
38 F.3d 626 (2d Cir.1994); R.M. Perlman Inc. v.
New York Coat, Suit, Dresses, Rainwear & Allied
Workers' Union Local 89-22-1, 789 F.Supp. 127, 131
(S.D.N.Y.1992) (plaintiffs conceded that they had
not adequately pleaded liability); Mounteer v. Bayly,
86 A.D.2d 942, 943 448 N.Y.S.2d 582, 583 (3d
Dep't 1982) (no allegations of liability on part of
membership were made).
None of the cases to which the Union cites concerns
the review of a complaint for compliance with the
requirements of Martin v. Curran preliminary to
the entry of default judgment as a sanction for
defendants' egregious abuse of discovery which abuse
relates (among other things) to withheld disclosures
bearing on ratification.

2. Evidentiary showing under Martin v. Curran
The Union's assertions about the evidentiary difficulties
of satisfying the requirements of Martin v. Curran, (Union
Br. at 7), are irrelevant at this point. 23 Now that judgment
on liability has been ordered against the defendants
based on discovery abuse, the question is not what the
Met can now prove or could have proven-defendants
having withheld and destroyed an unknown number of the
documents that the Met could have used in satisfying its
burden of proof. 24 See Hughes, 449 F.2d at 66; see also
Thomson, 114 U.S. at 114 (question is whether allegations
are “[ ]susceptible” of proof).
23

24

Moreover, the suggestion that the requirements of
Martin v. Curran are impossible to satisfy is simply
untrue. See, e.g., Westchester, 129 N.Y.S.2d at 215.
The many Weekly Reports, minutes and notes of
meetings, Housecalling Sheets, and meeting sign-in
sheets, for example, never produced by defendants
would surely have been relevant.

B. Merits Issues
Without acknowledging its current procedural position,
the Union asserts that the Met has failed to prove
the falsity or defamatory content of defendants' speech,
and/or that the Court had some obligation to assess
individually the false and defamatory nature of these
statements and defendants' malice in making each
statement. (See, e.g., Union Br. at 14.) All of these
arguments are, in fact, backdoor attempts to attack the
merits of the Met's claim. But, in the words of the
Court of Appeals, “[t]here was a time for that and [,
defendants] cannot elect to default and then defend on
the merits. [They] cannot have [their] cake and eat it
too .” Hughes, 449 F.2d at 64; see also Bambu Sales,
Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir.1995)
(where “[d]efendants rolled the dice on the district court's
tolerance for deliberate obstruction, and they lost,” court
refused to allow them to “return to the table”).

1. Defamation
As discussed above, by its destruction of evidence and
willful refusal to cooperate with discovery, the defendants
lost their right to contest the sufficiency of the Met's proof,
to raise defenses to the Met's claims or to seek review by
the Court of the same. Nevertheless, the Union asserts
that the Met bears an “affirmative” “burden of showing
that each defamatory statement is false,” that the Met
has failed to prove the defamatory nature of speech that
defendants characterize as merely “negative or harassing,”
and that the Met has failed to prove the falsity of the
Union's statements that the Met was party to a labor
dispute. (Union Br. at 12-15.) Similarly, in a repetition of
the argument made in Point I of its brief, Local 100 argues
that this Court must “specifically rule on each alleged
defamatory statement” before entering judgment. (Union
Br. at 10.) On all points, the Union is wrong.
*19 As Hughes makes clear, because the complaint
adequately pleads defamation and its factual assertions
are not incontrovertibly disproven by the case file or facts
of which the Court has judicial notice, judgment may be
entered. The Union's contrary argument was explicitly
rejected by the Court of Appeals in Hughes. The defendant
in Hughes, having suffered a default, nonetheless asserted
that the plaintiff had to prove its claims on the merits at
the damages inquest. Rejecting this assertion, the court
held that this argument “stands the matter on its head and
implies that it was [the plaintiff's] responsibility to defend

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the allegations of its complaint.... [The plaintiff] had no
obligation to introduce any evidence whatever in support
of the allegations of its complaint.” The Met properly
pleaded defamation in this case, e.g., Am. Compl. ¶¶
3-5, 23-44, 94-99, alleging that defendants made false and
defamatory statements about the Met with malice, see
Linn, 383 U.S. at 65, and the Union's arguments do not
“render inconceivable the likelihood” that the Met could
have made out its claim of defamation, Hughes, 449 F.2d
at 64.
The decision of the Court of Appeals vacating as vague
the preliminary injunction in this case also does not
constitute the necessary indisputable evidence that each
of the Union's statements alleged to be defamatory in
the Met's Amended Complaint was merely “negative”
and “harassing” and hence not actionable. (Union Br.
at 15.) Given that the Met's Amended Complaint had
not yet been filed, the Court of Appeals could not have
passed on all, or indeed most of, the Met's allegations
of defamation. In any event, the Court of Appeals did
not rule on the merits of the Met's defamation claim
as originally drafted but held only that the preliminary
injunction initially issued was unduly vague. Metropolitan
Opera Ass'n v. Local 100, Hotel Employees and Restaurant
Employees International Union, 239 F.3d 172, 174, 175-76
(2d Cir.2001) (“We do not reach the merits of the Union's
other argument”; and “[w]e agree that the injunction
presents serious questions under First Amendment and
libel law, but find it unnecessary to ultimately determine
these issues because we hold that the injunction must be
vacated as its scope and meaning are unclear”). 25
25

The Union also quotes the Court of Appeals' opinion
to suggest that the Court conferred blanket protection
on “harassing” speech, but, read in its proper context,
the passage only addresses the propriety of injunctive
relief to support the Court's conclusion, in dicta, that
equity will not generally enjoin a libel even where the
libel is harassing. In short, in no way does this passage
affect the imposition of liability upon the Union's
default.

Finally, as this Court has already ruled, and hence as
is the law of this case, the Norris LaGuardia Act and
the National Labor Relations Act do not constitute
indisputable evidence that the Met was party to a labor
dispute such that defendants' public statements were
true. 26 In any event, the Met's allegations of defamation
do not turn on the existence of a labor dispute, but on

the defendants' statement falsely linking the Met to that
dispute.
26

Of course, the term “labor dispute” as understood
by lay people, not labor lawyers, is what would
have been relevant at a trial on this point. In any
event, even under the hypertechnical definition of
federal labor law, there was no “labor dispute”
here. The dispute between the Union and RAregarding the means by which Local 100 would
seek to recognize the RA workers at the Met,
election or card check-did not concern “the terms or
conditions of employment or ... the association of
or representation of persons in negotiating, fixing,
maintaining, changing, or seeking to arrange terms or
conditions of employment.” Burlington Northern R.
Co. v. Brotherhood of Maintenance of Way Employees,
481 U.S. 429, 107 S.Ct. 1841, 95 L.Ed.2d 381 (1987),
cited by the Union, Union Br. at 13, concerned a
dispute between a company and a union regarding
the employment of union members by the company's
subcontractor and, as such, is wholly distinguishable.

2. “Commonplace Labor Rhetoric”
Nor does the Union's claim of privilege to engage in socalled “commonplace labor rhetoric” or to defame the
Met to government officials affect the sanctions decision.
With respect to the statements the Union benignly
characterizes as “commonplace labor rhetoric,” it selects
certain phrases from the Met's Amended Complaint, lists
them out of context, and argues that they are nonactionable, non-factual statements. (Union Br. at 11.) As
the basis for such a characterization, the Union suggests
that there is a definitive list of permissible invectives and
degrading words and phrases that may used with impunity
in a labor dispute. Assuming arguendo this Court were
free to examine the merits of the Met's claims, the cases
to which the Union cites would not be found to establish
conclusively (as Hughes requires) the existence of such a
categorical list.
*20 Indeed, in Steinhilber v. Alphonse, 68 N.Y.2d 283,
508 N.Y.S.2d 901, 501 N.E.2d 550 (1986), cited by the
Union (Union Br. at 10), the New York Court of Appeals
explicitly stated:
We eschew any attempt here to reduce
the problem of distinguishing fact
from opinion to a rigid set of criteria
which can be universally applied. The
infinite variety of meanings conveyed

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by words-depending on the words
themselves and their purpose, the
circumstances surrounding their use,
and the manner, tone and style with
which they are used-rules out, in our
view, a formulistic approach.

Id. at 68 N.Y.2d at 291, 508 N.Y.S.2d at 905, 501 N.E.2d
550; see also Milkovitch v. Lorain Journal Co., 497 U.S.
1, 18, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (rejecting
a “wholesale defamation exemption for anything that
might be labeled ‘opinion” ’). In fact, determining whether
particular statements are “non-actionable rhetoric or
opinion” is “a difficult task” and is based on a multifactor, totality of the circumstances test which includes
an evaluation of (1) whether the specific language in issue
has a precise meaning which is readily understood; (2)
whether the statements are capable of being proven true
or false; and (3) whether either the full context of the
communication in which the statement appears or the
broader social context and surrounding circumstances are
such as to signal ... readers or listeners that what is being
read or heard is likely to be opinion, not fact” (internal
quotations and citations omitted). Brian v. Richardson, 87
N.Y.2d 46, 51, 637 N.Y.S.2d 347, 350, 660 N.E.2d 1126
(1995); see also Milkovitch, 497 U.S. at 9; Gross v. New
York Times Co., 82 N.Y.2d 146, 155, 603 N.Y.S.2d 813,
819, 623 N.E.2d 1163 (1993); Steinhilber, 68 N.Y.2d at
292, 508 N.Y.S.2d 905. Even when union speech is at issue,
this contextual review is employed. See Old Dominion, 418
U.S. 264 at 284, 94 S.Ct. 2770, 41 L.Ed.2d 745 (holding
that the alleged defamatory words “were obviously used
here in a loose, figurative sense” but noting that “[t]his
is not to say that there might not be situations where
the use of this writing or other similar rhetoric in a
labor dispute could be actionable”) (emphasis added).
Consideration of the totality of the circumstances and
overall context, however, does not go to “the face” of
the Met's complaint but rather requires an evidentiary
evaluation that is foreclosed. See Hughes, 449 F.2d at 68
(“the question is not whether one inference or another
is stronger but whether [defendants'] evidence-in light of
default and thus the absence of trial-absolutely forecloses
the possibility” of the plaintiff's claims).
Likewise, the Union had no absolute privilege as a matter
of law to defame the Met to the Members of the New
York City Council under the Noerr-Pennington doctrine.

“The essence of the Noerr-Pennington Doctrine is that
parties who petition the government for governmental
action favorable to them cannot be prosecuted under
antitrust laws even though their petitions are motivated
by anticompetitive intent.” Video Int'l Production, Inc.
v. Warner-Amex Cable Communications, Inc., 858 F.2d
1075, 1082 (5th Cir.1988). Although some courts,
like the Fifth Circuit, have extended the doctrine to
state tort actions analogous to anti-trust claims, the
Union provides no authority for the proposition that
the Noerr-Pennington doctrine applies to defamation
claims. Indeed, the only authority located holds that
it does not. In re IBP Confidential Business Documents
Litigation, 755 F.2d 1300, 1313 (8th Cir.1985) (the
“Noerr-Pennington Doctrine does not necessarily and
absolutely preclude liability for damages resulting from
defamatory statements made in the course of petitioning
the government”).

3. Tortious Interference
*21 The Union argues that the Met's tortious
interference claim is preempted, Union Br. at 16-17, but
that argument was rejected on the preliminary injunction
motion. The Union also argues that the claim is deficient
because an “inducement of breach of contract” claim must
recite the contract(s) breached. (Id. at 17). The problem
with this argument, however, is that the Met pleaded
interference with its “business relations and economic
advantage,” not contract. (Am. Compl. at p. 58 (title
of claim) & ¶ 123.) No contract need be identified to
sustain such a claim, and the Union cites no cases
suggesting otherwise. 27 See NBT Bancorp Inc. v. Fleet/
Norstar Financial Group, Inc., 87 N.Y.2d 614, 623, 641
N.Y.S.2d 581, 586, 664 N.E.2d 492 (1996).
27

The Union also says that at the February 10, 2003
conference, the Met committed that it would offer no
proof of effect on donor relations. (Union Br. at 17
n.11.) In fact, the Met said, in response to defendants'
suggestion that it answer their earlier interrogatories
as to damages: “The requests were, as you may recall,
for all the contribution records and all of the ticket
sales and so forth, and it is not our intention to rely
on that kind of data....” (2/10/03 Tr. at 19-20.)

4. Prima Facie Tort
As part of their summary judgment motion, defendants
argued the Met's prima facie tort claim should be
dismissed “Because the Met Has Not Alleged and Cannot

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Prove ‘Disinterested Malevolence.” ’ (Lans III, Ex. 2
at Table of Contents, Point VI.) This aspect of the
defendants' motion was denied upon a finding that
there were questions of fact requiring trial. The Union's
argument now to the same effect accordingly is foreclosed.
See In re Crazy Eddie Sec. Litig., 948 F.Supp. 1154
(E.D.N.Y.1996).

support judgment and sanctions against them. While I
believe the Opinion's findings are sufficient to support
my decision, I grant Tamarin and Diaz's motion for
reconsideration to clarify the factual and legal findings as
to Tamarin and Diaz's misconduct.

5. Secondary Boycott
The Union argues that the secondary boycott claim is
preempted. This argument has been rejected twice: once at
the injunction stage and later on defendants' motion for
summary judgment, and I decline to disturb that law of
the case.

1. Tamarin
*22 Tamarin, although an individually-named defendant
with the same obligations as the Union, appears never
once to have searched his own files for documents
responsive to the Met's document requests, even though
many requests were directed specifically to him. See, e.g.,
212 F.R.D. at 228 n. 35 (“Tamarin, the then-outgoing
Union president, was also grossly inadequate in his own
document search. For example, he never even looked at
the documents in his Chicago office.”). In his deposition,
Tamarin testified that sometime after May 2000-around
the time that the Met sent out its First Document Requesteither Brooks Bitterman or Joseph Lynett gave him “a
list of files to look for and documents” and that he
looked for some documents “personally and some [he]

C. Conclusion
In sum, having reconsidered the sanctions decision as to
the Union and having found nothing that would change
the result, I adhere to my prior sanctions decision as to the
Union.

IV. The Individual Defendants' Motion
Tamarin and Diaz move to clarify whether the judgment
of liability based on the Opinion applies to them, to correct
it so as not to impose such liability or, in the alternative,
to reconsider. The motions to clarify and reconsider are
granted, and, for the reasons set out below, I adhere to
my prior decision granting judgment on liability against
Tamarin and Diaz.
First, the finding of liability indeed applies to Tamarin
and Diaz, as I intended and as the Opinion markes
clear. The Opinion differentiates between “the Union”
and “defendants” as appropriate, and, as all defendants
were aware, the Met's motion was expressly made against
all defendants, not only the Union. Because I found that
Tamarin and Diaz willingly participated in the discovery
misconduct, I ultimately granted the Met's motion for
sanctions as against all defendants. Thus, the findings of
liability and sanctions set out in the Opinion apply to the
individual defendants.
Tamarin and Diaz also move for reconsideration on the
ground that the Opinion made no findings of bad faith
or misconduct by either of them. They quibble with the
significance of the Opinion's recitation of the facts relating
to them, arguing that such findings are insufficient to

A. The Facts

delegated to other people on [his] staff.” (Lans I, 28 Ex.
48 (Deposition of Henry Jonathan Tamarin dated Dec.
11, 2001) at 65.) However, the Met served four other
Document Requests-the Second in May 2001, the Third
and Fourth in October 2001-to which Tamarin, as Local
100's leader, undoubtedly had responsive materials. Yet
Tamarin testified that he could not recollect whether he
ever looked through his files again after this first occasion
in 2000 until the night before his deposition in December
of 2001. (Id. at 67-69.)
28

Reference is to the Declaration of Deborah E. Lans,
sworn to April 11, 2002.

Compliance discovery revealed that Tamarin, the
Union's member of the board of the benefit trust
plans, participated in communications about subsidies
and Union member benefits at committee meetings,
with Union personnel and otherwise, many of which
communications went unproduced. See, e.g., 212 F.R.D.
at 192 (Margaret Rimmelin, the Union's Office Manager,
testified at her deposition that from time to time
Tamarin received member inquiries regarding benefits
and sometimes responded by letter); id. at 199-200
(Tamarin questioned at deposition about letters he wrote
concerning subsidies and when asked if he had copies of

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those documents, answered, “Well, I don't know. We're
looking.”); id. at 224 (Executive Board Minutes and
Membership Meeting Minutes referenced the existence of
reports on such topics yet Moss' signed response to the
Met's Third Document Request stated that there were no
documents concerning benefits to its members and their
families). Tamarin sent numerous letters out about the
campaign which also went unproduced. See id. at 194
(noting that Tamarin sent letters to members of the New
York City Council's Parks, Cultural Affairs, Finance and
Labor committees, but no copies of these letters were
made); id. at 200 (noting that Tamarin did not believe he
had looked at any files in his office in Chicago which he
had occupied since November 1999 and from which he
dealt with the Union's campaign against the Met).

Metropolitan Opera, card check neutrality agreements or
the like?
A: Not prior to yesterday evening.

Q: Did you ever provide your files so far as they relate
[to] the Met, R.A., the activities at the Met, card check
agreements?
A: I believe I was asked last year and provided whatever
I had at that time.
Q: Asked by whom?
A: It was either Joe Lynett or Brooks Bitterman.

In addition, Tamarin participated in numerous rallies and
meetings, yet Tamarin's Weekly Reports, when finally
produced, were produced only in part. See id. at 212
n. 23 (noting that the reports were produced three days
before the close of discovery and that “[t]here were
significant gaps” in the production). Although Herrick
(not Tamarin) now claims (in an unsworn submission)
that the non-produced reports were for times when
Tamarin was uninvolved in the campagin at the Met,
there is documentary evidence disproving this last-minute
excuse. (See Lans III, Ex. 15 (memorandum and letters
written by Tamarin).)
*23 Tamarin himself, as an individual defendant to
whom the document requests were addressed, bore part
of the burden to ensure that responsive documents were
produced. However, as set out in the Opinion, documents
that should have been produced either were produced
at the last minute or not at all. When Tamarin was
questioned at his deposition with respect to Weekly
Reports, for example, he responded as follows:
Q: Have your counsel in this case asked you to provide them
with copies of those reports?
A: Yesterday evening.
Q: Yesterday evening?
A: Yes.
Q: Have your counsel in this case ever asked you to provide
them with your files relating to Restaurant Associates, the

Q: You stated last year, so you're talking about some time
in 2000?
A: I believe so....
Q: ... [B]etween last year and last night were you asked for
anything?
A: I don't have a recollection.
Q: Last night were you asked for anything other than your
[W]eekly [R]eports?
A: No.

212 F.R.D. at 199 (emphasis added). The Opinion found
that counsel's failure to produce, or even inquire about,
the Weekly Reports in a timely manner constituted
“conduct [that] is wholly inconsistent with counsel's
obligation to conduct discovery in good faith.” Id. For
the record, Tamarin's own failure to make any effort
to ensure that a document request directed to him
personally as an individual defendant (which he nowhere
denies receiving) had been complied with also constitutes
discovery misconduct. See id. at 138 n. 35 (“Tamerin,
the then-outgoing Union President, was also grossly
inadequate in his own document search. For example,
he never even looked at the documents in his Chicago
office.”).

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2. Diaz
Dennis Diaz was the lead organizer assigned by Local
100 to the Met campaign. He was involved in many
relevant activities, including near-daily communications
with RA workers at the Met for at least a twoyear period, numerous house visits to the workers to
solicit participation and persuade them to sign “cards,”
travelling with an RA worker from the Met to a
conference in Puerto Rico to discuss organizing tactics,
and participating in numerous leaflet “actions” and visits
to Met directors and affiliates.
Because Diaz was named as an individual defendant in
this case, the Met's document requests were directed to
him personally, and he nowhere denies receiving them. As
noted in the Opinion, Joseph Lynett gave a copy of the
Met's First Document Request to Diaz in May 2000, see
212 F.R.D. at 185, yet neither the Weekly Reports nor
any other of a multitude of documents in Diaz' custody,
possession, or control was obtained by the Met until some
15-18 months later (if at all). Searching of Diaz's files, to
the extent done, was performed by Bitterman and Yen.
However, Bitterman testified at his deposition that he
only searched the file drawer that Diaz himself designated,
Lans I, Ex. 42 (Deposition of Brooks Bitterman dated Oct.
25; 2001 (“Bitterman Dep.”)) at 496-497, meaning that
numerous boxes in Diaz's office and all but the one file
drawer went uninspected, Lans I ¶ 88-89. Never produced
(with two exceptions, see Lans I, Ex. 51) were any records
of his house visits to RA workers. (Lans I ¶ 90.) Again, like
Tamarin, Diaz bore a responsibility to ensure compliance
with his discovery obligations, yet the record reveals that
he did not fulfill this responsibility.
*24 Counsel for both sides expend much ink arguing
about what to make of Diaz's testimony in a related NLRB
proceeding that he did not keep a log of his activities on
behalf of Local 100 and the citation to that testimony in
footnote 34 of the Opinion. Diaz's testimony before the
NLRB was as follows:
Q: Do you keep a diary?
A: No.
Q: Do you keep a calendar of your appointments?
A: A calendar of what's going on, yes. But I don't save
them.

Q: Do you log what you do on a day-to-day basis? Your
activities on behalf of Local 100.
A: No.

212 F.R.D. at 195 (emphasis added).
In his deposition on November 15, 2001, however, Diaz
testified as follows:
Q: Do you see to the left of where it says cafeteria it says
report?
A: Yes.
Q: What does it mean?
A: Could be, had to do with my reports, my daily reports.
I can't remember Q: What are your daily reports?
A: Office reports that we fill in at each week we fill out
reports.
Q: What are those reports about?
A: The weekly work that was done.

Id. (emphasis added). Diaz's NLRB testimony was cited
in the Opinion in the section discussing wilfulness and
bad faith, specifically “falsehoods uttered by individual
defendants.” Id. at 225-26. There, it was noted that
Granfield originally denied providing any “written
reports ... to the International with respect to [his]
activities,” a statement later shown to be undeniably false.
Id. Following the recitation of that testimony, a foonote in
the Opinion states: “Similarly, in his testimony in a related
NLRB proceeding, Diaz denied that he ‘log[ged] what [he
did] on a day-to-day basis ... [, his] activities on behalf
of Local 100.” ’ 212 F.R.D. at 226 n. 34. Although the
testimony appears to be false, because it was not given
in this case-and thus was not relied on as a basis for
sanctions-it was relegated to a footnote. Thus, it is without
import on reconsideration.

B. Conduct as Individuals

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Tamarin and Diaz attempt to obfuscate the real issuea pervasive pattern of discovery misconduct over an
extended period of time-by arguing that their conduct
in not producing, for example, the Weekly Reports does
not warrant sanctions because, inter alia, “a party may
be substantially justified in not disclosing evidence if
the party could not have been expected to foresee its
relevance.” (Individual Defs' Reply Br. 29 at 5 (citing
7 Moore's Federal Practice § 37.62 at 37-126.1-127 (3d
ed.2003)).) This argument is of no moment in the face of
the record in this case. All five of the Met's Document
Requests were addresed to Local 100 and Tamarin and
Diaz. Neither of the individual defendants has denied
receiving copies of these requests addressed personally to
them. Neither Tamarin nor Diaz ever himself searched
any of his own files for documents or took any steps
to ensure that a competent search was made by others,
even after their depositions were taken on the topic
of their search for documents and their possession of
documents and even after they had been asked by
Met counsel to produce documents directed to them
personally. Although Bitterman searched one of Diaz's
file drawers for documents responsive to the Met's First,
Second and Third Requests, no one, Diaz included,
searched for documents responsive to the Fourth and
Fifth Requests. (Lans I, Ex. 54 at Responses of Dennis
Diaz to Compliance Interrogatories (“Diaz's Responses”)
¶ 3.) As set out in part above, the Opinion found
that categories of documents were not produced-indeed
were not even searched for-by Tamarin and Diaz, and
documents likely to be in each defendant's files were
withheld during discovery. In addition, although Diaz
uses email, (Bitterman Dep. at 26-27), not one email
to or from Diaz was produced or the absence of email
explained. Nor were the files and computer used by
Tamarin's New York secretary (Tamarin's secretaries do
all his typing) ever searched for responsive documents. See
212 F.R.D. at 192.
29

Reference is to Reply Memorandum of Law on Behalf
of Defendants Henry Tamarin and Dennis Diaz dated
May 30, 2003.

*25 As the foregoing record and the Opinion make
clear, Tamarin and Diaz utterly failed in their discovery
obligations as individuals to whom each and every
document request by the Met was directed. They had a
duty to assure that such requests were complied with, at
least on behalf of themselves, and they did not do so.
For these reasons and the reasons set out in the Opinion,

judgment of liability and sanctions against Tamarin and
Diaz is appropriate based on their individual misconduct.

C. Coordinated Conduct with Counsel
Tamarin and Diaz may also properly be sanctioned for the
misconduct of their counsel. It has long been the law in
this Circuit that a client may be sanctioned for his lawyer's
misconduct. As the Court of Appeals wrote in Cine
Forty-Second Street Theatre, “[a] litigant chooses counsel
at his peril, and here, as in countless other contexts,
counsel's disregard of his professional responsibilities can
lead to extinction of his client's claim.” 602 F.2d at
1068 (citing Link v. Wabash Railroad Co., 370 U.S. 626,
82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). The Court went
on to note that the “acts and omissions of counsel are
normally wholly attributable to the client.” Id. Moreover,
where, as here, the sanctionable conduct is a “coordinated
effort” of counsel and party, joint and several liability
is appropriate. See Estate of Calloway v. Marvel Entm't
Group, 9 F.3d 237, 239-240 (2d Cir.1993), cert. denied, 511
U.S. 1081, 114 S.Ct. 1829, 128 L.Ed.2d 459 (1994).
As high-ranking members of the Union's staff and
individually-named defendants in this action, Tamarin
and Diaz must be assumed to have had familiarity with
the many documents called for by the Met's document
requests, whether in their possession or in the possession
of others at the Union. Tamarin and Diaz bore the
responsibility of coordinating with counsel-particularly as
individuals to whom the requests were addressed-to assure
that the Union's and their own discovery obligations
were complied with. The record in this case demonstrates
willful disregard of that responsibility on the part of
Tamarin and Diaz. While Tamarin and Diaz initially
might have relied on Bitterman to gather responsive
documents and their counsel to supervise Bitterman,
they were not free to forget about their obligations
merely upon turning over some portion of their files.
As outlined above, neither defendant knew, or made an
effort to learn, whether his files had been reviewed by
a lawyer. (See, e.g., Diaz's Responses ¶ 6 (“I do not
know if any lawyers searched my files which I turned
over to Brooks Bitterman.”); Lans I, Ex. 54 at Tamarin's
Responses to Compliance Interrogatories ¶ 4 (“I delegated
responsibility for searching and producing responsive
documents to Brooks Bitterman and other staff members
of Local 100”).)

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D. Conclusion
In sum, the individual defendants and their counsel
may not engage in parallel know-nothing, do-nothing,
head-in-the-sand behavior in an effort consciously to
avoid knowledge of or responsbility for their discovery
obligations and to obstruct plaintiff's wholly appropriate
efforts to prepare its case. Accordingly, the individual
defendants are properly sanctioned for the misconduct of
their counsel, independently, and for their participation
with the Union and counsel in coordinated, multiple acts
of willful misconduct. Upon reconsideration, I adhere to
my previous decision with respect to Tamarin and Diaz.

CONCLUSION
*26 Because Herrick, Davis and the Union motions do
not raise matters appropriate on reconsideration, their
motions for reconsideration (docket nos. 64 and 71) are
denied.

In the alternative, the motions for reconsideration by
Herrick, Davis and the Union (docket nos. 64 and 71) are
granted and, upon reconsideration, I adhere to my prior
decision.
The motion for clarification and reconsideration by the
individual defendants Tamarin and Diaz (docket no. 62)
is granted. The Opinion is clarified such that the Opinion
applies to Tamarin and Diaz in granting judgment on
liability against them. Upon reconsideration, I adhere to
my prior decision granting judgment on liability against
Tamarin and Diaz.
Counsel shall confer and inform the Court by letter no
later than September 13, 2004 how they would propose to
proceed.
SO ORDERED

All Citations
Not Reported in F.Supp.2d, 2004 WL 1943099, 175
L.R.R.M. (BNA) 2870

End of Document

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23

Seifts v. Consumer Health Solutions LLC, Not Reported in F.Supp.3d (2015)
2015 WL 1069270

2015 WL 1069270
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
SEIFTS, et al., Plaintiffs,
v.
CONSUMER HEALTH SOLUTIONS
LLC, et al., Defendants.
No. 05 Civ. 9355(ER)(LMS).
|
Signed March 10, 2015.
|
Filed March 11, 2015.

OPINION AND ORDER
RAMOS, District Judge.
*1 Before the Court is the Report and Recommendation
(“R & R”) dated August 5, 2013 of Magistrate Judge
Lisa Margaret Smith, addressing two motions for
reconsideration of an entry of default judgment. Doc. 151.
Magistrate Judge Smith concludes and recommends that
this Court conclude that both motions be denied. Id. at 2–
3. For the reasons stated herein, the Court ADOPTS the
R & R and directs the entry of judgment as recommended.

I. Background
Plaintiffs Jeffrey C. Seifts, Ellen Manfredo, Charles
Hargreaves, Selma Denmark, Peter Audet, Carolyn
Demichelle, Susan E. Hoyt, Maryann Pulvirenti, Joseph
French, Linford Snyder, Diane Berman, John Bastone,
and John Gerson, individually and on behalf of the
participants of the Fleetcare CU 1000P Medical Program,
John and Jane Does 1–300, Jeffrey C. Seifts & Co.,
Inc., and Consumer Advocates Group, Ltd. (“CAG”)
(collectively, “Plaintiffs”), commenced this action on
November 3, 2005 against Consumer Health Solutions
LLC d/b/a Palmetto Administrators (“CHS”), Fleetcare
Group, LLC, Fleet Care Corporation, Bart Posey,
TIG Premier Insurance Company, William M. Worthy,
II, Angela Posey, Obed Kirkpatrick, Jollene Priester,
Jack Henson Hawkins, and New Source Benefits,
LLC, individually and jointly and severally (collectively,

“Defendants”). 1 Plaintiffs assert claims for breach of
fiduciary duty and disclosure obligations under ERISA,
claims for recovery of the value of wrongly denied
benefits, and a series of claims under New York law.
1

TIG Premier Insurance Company was terminated
as a defendant, Doc. 147, based on the Court's
grant of its motion to dismiss and/or for summary
judgment. Doc. 81. Jollene Priester was terminated
as a defendant following the Parties' stipulation of
voluntary dismissal pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(ii). Doc. 167.

Initially assigned to the Honorable Stephen C. Robinson,
the case was transferred to the Honorable Richard J.
Holwell on November 12, 2010, Doc. 62, to the Honorable
J. Paul Oetken on October 20, 2011, Doc. 83, and to the
undersigned on July 22, 2013. Doc. 148. The case was
referred to the Honorable Lisa Margaret Smith, United
States Magistrate Judge, on November 14, 2011. Doc.
84. On May 6, 2011, Judge Holwell entered a default
judgment in favor of Plaintiffs Ellen Manfredo, Charles
Hargreaves, Selma Denmark, Peter Audet, Carolyn
DeMichelle, Susan E. Hoyt, Maryann Pulvirenti, Joseph
French, Linford Snyder, Diane Berman, John Bastone,
and John Gerson (the “Individual Plaintiffs”) and against
Defendants CHS, Fleetcare Group, LLC, Fleet Care
Corporation, Bart Posey, William M. Worthy, II, Angela
Posey, Obed Kirkpatrick, Jollene Priester, Jack Henson
Hawkins, and New Source Benefits, LLC. Doc. 80. On
March 15, 2012, Judge Oetken entered a default judgment
in favor of Plaintiffs Jeffrey C. Seifts, Jeffrey C. Seifts &
Co., Inc., and CAG (the “Seifts Plaintiffs”) and against
Defendants CHS, Fleetcare Group, LLC, Fleet Care
Corporation, Bart Posey, William M. Worthy, II, Angela
Posey, Obed Kirkpatrick, Jack Henson Hawkins, and
New Source Benefits, LLC, jointly and severally. Doc.
102.
Defendants Jollene Priester (“Priester”) and Jack
Hawkins (“Hawkins”) filed separate motions to vacate
the default judgment on April 6, 2012 and May 18, 2012.
Docs. 118, 135. On April 4, 2012 and April 24, 2012,
Defendant Obed Kirkpatrick (“Kirkpatrick”) submitted
two letters that he styled as a “motion to set aside default
judgments.” Docs. 127, 132. On July 31, 2012, Judge
Oetken, to whom the case was then assigned, denied
the motions filed by Priester and Hawkins but did not
address the letter motion submitted by Kirkpatrick. Doc.
142. On August 25, 2012, Hawkins sent a letter to the

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Court seemingly renewing his motion to vacate the default
judgment, construed by Magistrate Judge Smith as a
motion for reconsideration of Judge Oetken's July 31,
2012 Order. Doc. 146. Magistrate Judge Smith, in her
August 5, 2013 R & R, concludes and recommends that
this Court conclude that both Kirkpatrick's motion and
Hawkins' motion for reconsideration be denied. Doc. 151
at 2–3. 2
2

In a separate R & R, dated March 6, 2014, Magistrate
Judge Smith made a recommendation regarding
damages in this case, which this Court adopted in its
entirety on November 21, 2014. Docs. 166, 168.

*2 The R & R noted that objections, if any, would
be due within seventeen days and that failure to timely
object would preclude later appellate review of any order
of judgment entered. Id. at 10. Neither Kirkpatrick nor
Hawkins filed objections. Both have therefore waived
their right to object to the R & R. See Dow Jones &
Co. v. Real–Time Analysis & News, Ltd., No. 14 Civ.
131(JMF) (GWG), 2014 WL 5002092, at *1 (S.D.N.Y.
Oct. 7, 2014) (citing Frank v. Johnson, 968 F.2d 298, 300
(2d Cir.1992); Caidor v. Onondaga County, 517 F.3d 601,
604 (2d Cir.2008)).

II. Standard of Review
A district court reviewing a magistrate judge's report and
recommendation “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Parties
may raise “specific,” “written” objections to the report
and recommendation “[w]ithin fourteen days after being
served with a copy.” Id.; see also Fed.R.Civ.P. 72(b)(2).
A district court reviews de novo those portions of the
report and recommendation to which timely and specific
objections are made. 28 U.S.C. § 636(b)(1)(C); see also
United States v. Male Juvenile (95–CR–1074), 121 F.3d
34, 38 (2d Cir.1997). The district court may adopt those
parts of the report and recommendation to which no
party has timely objected, provided no clear error is
apparent from the face of the record. Lewis v. Zon, 573
F.Supp.2d 804, 811 (S.D.N.Y.2008). The district court
will also review the report and recommendation for clear
error where a party's objections are “merely perfunctory
responses” argued in an attempt to “engage the district
court in a rehashing of the same arguments set forth in
the original petition.” Ortiz v. Barkley, 558 F.Supp.2d

444, 451 (S.D.N.Y.2008) (citations and internal quotation
marks omitted).

III. Conclusion
No party has objected to the R & R. The Court has
reviewed Judge Smith's thorough R & R and finds
no error, clear or otherwise. Judge Smith reached her
determination after a careful review of the parties'
submissions. R & R 2–10. The Court therefore ADOPTS
Judge Smith's recommended judgment for the reasons
stated in the R & R. Furthermore, the parties' failure to
file written objections precludes appellate review of this
decision. PSG Poker, LLC v. DeRosa–Grund, No. 06 CIV.
1104(DLC), 2008 WL 3852051, at *3 (S.D.N.Y. Aug. 15,
2008) (citing United States v. Male Juvenile, 121 F.3d 34,
38 (2d Cir.1997)).
The Clerk of Court is respectfully directed to enter
judgment and close this case.
It is SO ORDERED.

REPORT AND RECOMMENDATION
LISA MARGARET SMITH, United States Magistrate
Judge.
To: The Honorable Edgardo Ramos, U.S.D.J.
Plaintiffs Jeffrey C. Seifts, Ellen Manfredo, Charles
Hargreaves, Selma Denmark, Peter Audet, Carolyn
Demichelle, Susan E. Hoyt, Maiyann Pulvirenti, Joseph
French, Linford Snyder, Diane Berman, John Bastone,
John Gerson, individually and on behalf of the
participants of the Fleetcare CU 1000P Medical Program,
John and Jane Does 1–300, and Jeffrey C. Seifts & Co.,
Inc. and Consumer Advocates Group, Ltd. bring this
action against Defendants Consumer Health Solutions
LLC d/b/a Palmetto Administrators, Fleetcare Group,
LLC, Fleet Care Corporation, Bart Posey, TIG Premier
Insurance Company 1 , William M. Worthy, II, Angela
Posey, Obed Kirkpatrick, Jollene Priester, Jack Henson
Hawkins, and New Source Benefits, LLC, individually
and jointly and severally, asserting claims for breach
of their fiduciary duties and their disclosure obligations
under ERISA and to recover the value of benefits wrongly
denied by Defendants. Plaintiffs also assert claims under
New York law for breach of contract, breach of implied

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contract, quantum meruit, unjust enrichment, conversion,
fraud and intentional misrepresentation, negligence and
negligent misrepresentation, breach of the covenant of
good faith and fair dealing, breach of fiduciary duty,
intentional infliction of emotional distress, and violations
of New York Insurance Law and New York General
Business Law provisions.
1

TIG has been dismissed from the case. See Docket #
147.

*3 Default judgments were entered in the action on May
6, 2011, and March 15, 2012. Docket80, 102. Defendants
Jollene Priester and Jack Hawkins filed separate motions
to vacate the default judgment, Docket118, 135, and
on July 31, 2012, the Honorable J. Paul Oetken, to
whom the matter was then assigned, denied the motions
to vacate the default judgment. Docket # 142. In
addition to the submissions from Defendants Priester
and Hawkins, Defendant Obed Kirkpatrick submitted a
one-page undated letter to the Court, received by the
undersigned on April 4, 2012, referring to “this matter
of dismissing me from these charges.” Docket # 127.
This letter was followed up by a very brief undated
letter to the Pro Se Clerk, filed on April 24, 2012, which
Kirkpatrick stated was a “motion to set aside default
Judgments, pursuant to Rule 55(c) of the Federal Rules
of Civil Procedure,” and again referred to “this matter
of dismissing me from these charges.” Docket # 132.
Although Judge Oetken accepted for filing Kirkpatrick's
letter to the Pro Se Clerk, he did not address Kirkpatrick's
motion to vacate the default judgments in his July 31,
2012, Order. Thereafter, Defendant Hawkins sent a letter
to the Court dated August 25, 2012, which, despite being
called an opposition to the Seifts Plaintiffs' and the
Individual Plaintiffs' requests for damages, is a submission
addressed to the issue of liability—in essence, a renewed
motion to vacate the default judgment or, more precisely,
a motion for reconsideration of Judge Oetken's July 31,
2012, Order. Docket # 146. 2
2

Defendant Hawkins' submission was initially not
accepted for filing due to his failure to provide
proof of service upon the other parties in the
action. On September 14, 2012, however, Hawkins
provided some affirmations of service of his papers.
Although the Court has docketed these papers,
it notes that Hawkins did not provide proof of
service upon Defendants Bart and Angela Posey,
Obed Kirkpatrick, and New Source Benefits, LLC.

Hawkins is hereby ordered to provide proof of such
service on those parties, and to effect service if
necessary.

For the reasons that follow, I conclude, and respectfully
recommend that Your Honor should conclude, that
both Kirkpatrick's motion and Hawkins' motion for
reconsideration should be denied.

Defendant Kirkpatrick's Motion to Vacate the Default
Judgments
Defendant Kirkpatrick's initial letter to the Court states,
in its entirety, as follows:
I have not played any part in Consumer Health
Solutions, Palmetto Administrators, or TIG Premier
Insurance Company[.] William Worthy was a
participant in all of those.
I did work for Bart Posey as a salesman, who at the time
was owner of Fleet Care Corporation and met with Mr.
Seifts on Mr. Posey's behalf even taking him to lunch
when he came to Franklin, TN.
On one occasion I did travel with Mr. Posey and
William Worthy to New York [h]owever, but I did not
have anything to do with the sale of insurance to Mr.
Seifts.
I plead for your mercy in this wrongful law suit.
Due to circumstances beyond my control, I filed for
bankruptcy in December of 2010. I do not own any
property and do not have any money in a savings
account; CD's or stocks and bonds.
As you can tell, I am not an attorney and I cannot afford
to hire one to contact you. I hope you will not hold that
against me.
Thank you for your prompt attention to this matter of
dismissing me from these charges.
Docket # 127. In response to this letter, as well as a March
24, 2012, letter from Defendant Hawkins (Docket # 126),
the Court advised Kirkpatrick and Hawkins, in a letter
dated April 12, 2012, “At this point in time, your options
are to either (1) file a formal motion to set aside the
Default Judgments, pursuant to Rule 55(c) and/or Rule
60(b) of the Federal Rules of Civil Procedure, ... or (2) file
a sworn affidavit opposing the amount of money damages
and attorneys' fees sought by the plaintiffs.” Docket # 125.

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*4 Kirkpatrick's letter to the Pro Se Clerk was submitted
thereafter. The letter reads in its entirety as follows:
I have never been part of Consumer Health Solutions,
Palmetto Administrators, Fleet Care Group or TIG
Premier Insurance Company[.]
I did work for Bart Posey as a real estate salesman with
Springfield Realty.

and it may set aside a default judgment under Rule
60(b).” Fed.R.Civ.P. 55(c).

Peterson v. Syracuse Police Dep't, 467 F. App'x 31, 33
(2d Cir.2012). Although default judgments have already
been entered against Kirkpatrick, because an inquest on
damages has been ordered but has not yet been completed,
the Court applies the more lenient “good cause” standard
of Rule 55(c) in evaluating his motion. Murray Eng'g, P.C.
v. Windermere Props. LLC, No. 12 Civ. 0052, 2013 WL
1809637, at *3 (S.D.N.Y. Apr. 30, 2013).

I have never sold insurance in the state of New York.
I plead for your mercy in this wrongful law suit and file
this motion to set aside default Judgments, pursuant to
Rule 55(c) of the Federal Rules of Civil Procedure.
Thank you for your prompt attention to this matter of
dismissing me from these charges.
Docket # 132.
As the Second Circuit has explained,
Rule 55(c) permits a party to be
relieved of default “for good cause,”
whereas a default judgment may
only be set aside in accordance with
Rule 60(b). Fed.R.Civ.P. 55(c). 3
While Rule 55(c) does not define
“good cause,” this Court has advised
district courts to consider three
criteria in deciding a Rule 55(c)
motion: (1) whether the default was
willful; (2) whether setting aside the
default would prejudice the party
for whom default was awarded;
and (3) whether the moving party
has presented a meritorious defense.
Enron Oil Corp. v. Diakuhara, 10
F.3d 90, 96 (2d Cir.1993). The same
factors are applied in the context
of a Rule 60(b) motion to set
aside a default judgment, although
they are applied more rigorously,
and the district court must resolve
any doubts in the defaulting party's
favor. Id.
3

The precise wording of the rule is as follows: “The
court may set aside an entry of default for good cause,

A “default is deemed willful where a defendant simply
ignores the complaint without action.” United Bank of
Kuwait PLC v. Enventure Energy Enhanced Oil Recovery
Assocs.—Charco Redondo Butane, 755 F.Supp. 1195,
1205 (S.D.N.Y.1989) (citations omitted). In his letters,
Kirkpatrick nowhere denies having been served with the
Supplemental Summons and First Amended Complaint,
see Docket # 22 (Affidavit of Service), or being aware of
the existence of this ongoing litigation, nor does he deny
receiving any of the documents which were served on him
or sent to him at the very same address that he listed as his
return address on his correspondence to the Court and the
Pro Se Clerk. See, e.g., Docket35, 63, 77, 85, 89, 97, 105.
Rather, Kirkpatrick made no effort to contact the Court
throughout this protracted litigation until after both entry
of the second default judgment and Plaintiffs' filing of
their papers in support of the award of damages upon
inquest. Thus, the Court finds that his default was willful.
*5 “Prejudice to the nondefaulting party is ‘the
single most persuasive reason for denying a Rule 55(c)
motion ....‘ 10A Charles Allen Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2699
(3d ed.2010).” Murray Eng'g, P.C., 2013 WL 1809637, at
*5. “In order to show the requisite level prejudice, the
plaintiff must demonstrate that any prejudice resulting
from the defendant's default cannot be rectified in the
Court in another manner were the default to be vacated.”
Id. (citing 10A Charles Allen Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2699
(3d ed. 2010) (“Indeed, in most instances, the finding of
no substantial prejudice reflects the ability of the court
to impose terms and conditions on the granting of relief
in order to compensate or otherwise protect the party
not in default.”)). “[D]elay alone is not a sufficient basis
for establishing prejudice. Rather, it must be shown that
delay will result in the loss of evidence, create increased
difficulties of discovery, or provide greater opportunity

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for fraud and collusion.” Id. (internal quotation marks
and citation omitted).
Because Kirkpatrick's letters were not considered
alongside the other motions to vacate the default
judgments, neither the Seifts Plaintiffs nor the Individual
Plaintiffs addressed Kirkpatrick's motion. Thus, the
Court does not have the benefit of their position regarding
prejudice were the Court to vacate the default judgments
against Kirkpatrick. However, the Court finds instructive
the Individual Plaintiffs' submission in response to
Hawkins' motion to vacate, in which they state as follows
with respect to the issue of prejudice:
A vacatur of the Default Judgment would result in
extreme prejudice to the Plaintiffs. The underlying
litigation was commenced in 2005 and amended to
name Mr. Hawkins as a Defendant in 2006. For the bulk
of the tortured history of this litigation, the Plaintiffs
have been diligently trying to obtain discovery and
prosecute this matter. Despite actual knowledge of the
underlying litigation, Mr. Hawkins opted to ignore the
Plaintiffs['] attempts in order to make it impossible to
prosecute their case against him or obtain discovery
from him. At the time the motion for a default judgment
was filed, Mr. Hawkins had an opportunity to contest
it but, for reasons unknown, failed to do so. Instead,
Mr. Hawkins unreasonably delayed the filing of the
instant motion until the Plaintiffs sought recovery of
their damages by inquest.
By vacating the Default Judgment, the Plaintiffs would
be placed in a precarious position. As a significant
amount of time has passed, not only from the
commencement of this action but from the securing
of the default judgment, it will be expensive and
difficult for Plaintiffs to now conduct discovery. As
Mr. Hawkins demonstrates no interest in the underlying
litigation until now, there is no indication he will
cooperate with any discovery. By vacating the default
judgment, the Plaintiffs would not be able to commence
their action in another jurisdiction or file against Mr.
Hawkins as the statute of limitations has expired. By
vacating the default judgment, the individually named
Plaintiffs will not be able to recoup their likely damages
from Mr. Hawkins. As such, the instant motion should
be denied.
*6 Docket # 139 (Mem. of Law in Opp.) at 12–
13; see also Docket # 140 (Culnan Affirmation) ¶ 15

(submission of the Seifts Plaintiffs in opposition to
Hawkins' motion, making virtually the same argument).
The same arguments apply to Kirkpatrick's conduct
throughout the pendency of this litigation. Therefore, the
Court concludes that all Plaintiffs would suffer prejudice
were the Court to vacate the default judgments against
Kirkpatrick.
Finally, only the remaining criterion—the existence
of a meritorious defense—was arguably addressed by
Kirkpatrick through his assertions that he “did not have
anything to do with the sale of insurance to Mr. Seifts,”
Docket # 127, and has “never sold insurance in the state
of New York.” Docket # 132. “In order to make a
sufficient showing of a meritorious defense in connection
with a motion to vacate a default judgment, the defendant
need not establish his [or her] defense conclusively, but
he [or she] must present credible evidence of facts that
would constitute a complete defense.” Travelers Indem.
Co. v. Kabir, 368 F. App'x 209, 210 (2d Cir.2010) (citation
omitted). Kirkpatrick has provided no evidence of a
defense. His unsworn letters, which do not constitute
evidence, include only conclusory denials of liability and
contradictory statements regarding his relationship with
co-defendant Bart Posey. Thus, the earlier letter states
that Kirkpatrick “did work for Bart Posey as a salesman,
who at the time was owner of Fleet Care Corporation
and met with Mr. Seifts on Mr. Posey's behalf even taking
him to lunch when he came to Franklin, TN. On one
occasion I did travel with Mr. Posey and William Worthy
to New York ...,” Docket # 127, but the later letter states
only that Kirkpatrick “did work for Bart Posey as a real
estate salesman with Springfield Realty.” Docket # 132.
It makes no sense, however, that Kirkpatrick, by his own
admission, would have met with Seifts and would have
traveled to New York with Posey and Worthy if all he
did was work as a real estate salesman. In any event,
“a defendant must present more than conclusory denials
when attempting to show the existence of a meritorious
defense.” State Farm Mut. Auto. Ins. Co. v. Cohan,
409 F. App'x 453, 456 (2d Cir.2011) (internal quotation
marks and citation omitted). Kirkpatrick's letters fail to
demonstrate that he has a meritorious defense.
Because Kirkpatrick cannot satisfy Rule 55(c)'s “good
cause” standard, I conclude, and respectfully recommend
that Your Honor should conclude, that Kirkpatrick's
motion to vacate the default judgments should be denied.

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5

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Defendant Hawkins' Motion for Reconsideration
Defendant Hawkins' August 25, 2012, letter to the Court,
although labeled an opposition to the Seifts Plaintiffs' and
the Individual Plaintiffs' requests for damages, is more
properly considered a motion for reconsideration of Judge
Oetken's decision denying Hawkins' motion to vacate the
default judgment. As such, I conclude, and respectfully
recommend that Your Honor should conclude, that the
motion for reconsideration should be denied as untimely.
*7 The Order denying Hawkins' motion to vacate the
default judgment was entered on August 2, 2012. Docket
# 142. Local Civil Rule 6.3 provides that “a notice of
motion for reconsideration or reargument of a court order
determining a motion shall be served within fourteen
(14) days after the entry of the Court's determination of
the original motion[.]” Thus, Hawkins had until August
16, 2012, or, at the latest, until August 20, 2012, if
the additional three days provided by Fed.R.Civ.P. 6(d)
are taken into account, 4 to serve his motion papers.
Hawkins' letter was dated August 25, 2012, and was
not served on any of the other parties until September
14, 2012. See Docket # 146. Untimeliness alone is a
proper basis to deny Hawkins' motion for reconsideration.
See DeVos v. Lee, No. 07–CV–804, 2010 WL 277070,
at *1 (E.D.N.Y. Jan. 19, 2010) (“[P]ro se defendants'
motion for reconsideration is untimely and, on that
ground alone, the Court would be justified in denying their
application. See, e.g., Cyrus v. City of New York, No. 06
CV 4685(ARR)(RLM), 2010 WL 148078, at *1 (E.D.N.Y.
Jan. 14, 2010) (collecting cases).”) (footnote omitted).
4

August 19, 2012, was a Sunday, so Hawkins would
have had until the following day. See Fed.R.Civ.P.
6(a)(1)(C).

Even if the Court were to consider Hawkins' motion
for reconsideration on the merits, I would still conclude,
and respectfully recommend that Your Honor should
conclude, that it should be denied. Reconsideration
motions “will generally be denied unless the moving
party can point to controlling decisions or data that the
court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by
the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir.1995) (citations omitted). A moving party may
not, however, “advance new facts, issues or arguments
not previously presented to the Court, or reargue those
issues already considered.” Hayles v. Advanced Travel

Mgmt. Corp., No. 01 Civ. 10017, 2004 WL 117597, at
*1 (S.D.N.Y. Jan. 26, 2004) (citation omitted). “This
strict standard seeks to discourage litigants from making
repetitive arguments on issues that already have been
considered by the court or from offering new arguments
on a motion the court has already decided,” Id. (citations
omitted). Hawkins' submission is simply a reiteration
of arguments previously made. Aside from attaching
Hawkins' previous submissions to the Court, the August
25, 2012, letter states, “As stated in the copies attached,
I simply had nothing what so ever to do with any
misdirection of funds sent to the Worthy office,” and
then asks the Court to contact “two individuals who
investigated and prosecuted Mr. Worthy in a similar case”
and who can “confirm that [Hawkins] had no involvement
with any wrong doing or misdirection of funds.” Docket #
146. Hawkins had mentioned these same two individuals'
names during the July 31, 2012, court conference at
which Judge Oetken denied Hawkins' motion to vacate
the default judgment. Docket # 149 (Transcript of 7/31/12
court conference) at 10.
*8 Accordingly, I conclude, and respectfully recommend
that Your Honor should conclude, that Hawkins' motion
for reconsideration should be denied.

CONCLUSION
For the foregoing reasons, I conclude, and respectfully
recommend that Your Honor should conclude, that (1)
Kirkpatrick's motion to vacate the default judgments
should be denied, and (2) Hawkins' motion for
reconsideration of the denial of his motion to vacate the
default judgment should be denied.

NOTICE
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and
Fed.R.Civ.P. 72(b), the parties shall have fourteen (14)
days, plus an additional three (3) days, pursuant to
Fed.R.Civ.P. 6(d), or a total of seventeen (17) days, see
Fed.R.Civ.P. 6(a), from the date hereof, to file written
objections to this Report and Recommendation. Such
objections, if any, shall be filed with the Clerk of the
Court with extra copies delivered to the chambers of
The Honorable Edgardo Ramos, United States District
Judge, at the United States Courthouse, 40 Foley Square,

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New York, New York 10007, and to the chambers of
the undersigned at the United States Courthouse, 300
Quarropas Street, White Plains, New York 10601.

Requests for extensions of time to file objections must be
made to Judge Ramos and should not be made to the
undersigned.

Failure to file timely objections to this Report and
Recommendation will preclude later appellate review of
any order of judgment that will be entered.

Dated: August 5, 2013.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1069270

End of Document

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7

Davis v. U.S. Dept. of Homeland Sec., Not Reported in F.Supp.2d (2013)
2013 WL 6145749

2013 WL 6145749
Only the Westlaw citation is currently available.
NOT FOR ELECTRONIC OR PRINT PUBLICATION
United States District Court,
E.D. New York.
Corey DAVIS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, Transportation Security
Administration; United States Department
of Justice, Federal Bureau of Prisons; and
Federal Bureau of Investigations, Defendants.
No. 11–CV–203 (ARR)(VMS).
|
Nov. 20, 2013.
Attorneys and Law Firms
Corey Davis, Tucson, AZ, pro se.
Ameet B. Kabrawala, United States Attorney's Office,
Brooklyn, NY, for Defendants.

OPINION & ORDER

plaintiff, at his request, an extension of time in which to
file his motion until August 10, 2013. Dkt. # 83. Plaintiff's
motion, dated September 11, 2013, was not docketed until
October 1, 2013 well over a month after it was due.
Plaintiff's motion is therefore untimely.
“A party's failure to make a motion for reconsideration in
a timely manner is by itself a sufficient basis for denial of
the motion.” Grand River Enters. Six Nations, Ltd. v. King,
No. 02 Civ. 5068(JFK), 2009 WL 1739893, *1 (S.D.N.Y.
June 16, 2009); see also Otto v. Town of Washington, 71
F. App'x 91, 92 (2d Cir.2003) (affirming denial of motion
for reconsideration because untimely); Gibson v. Wise,
331 F.Supp.2d 168, 169 (E.D.N.Y.2004) (denying motion
for reconsideration because untimely). “Plaintiff's pro se
status does not insulate him from complying with the
relevant procedural rules.” Gibson, 331 F.Supp.2d at 169.
Plaintiff asks the Court to excuse his out-of-time filing
because, several weeks prior to filing his motion, he was
placed in a Special Housing Unit and was separated from
his legal materials. Dkt. # 84 at ECF 7. However, plaintiff
fails to explain how this caused a more than month-long
delay or why he did not request an extension of time as he
had done previously. For this reason, plaintiff has failed
to establish “excusable neglect” counseling in favor of
an extension of time pursuant to Federal Rule of Civil
Procedure 6(b)(1)(B), and plaintiff's motion should be
denied as untimely.

ROSS, District Judge.
*1 Plaintiff, pro se, has moved for reconsideration of
this Court's Opinion and Order, dated June 27, 2013,
which found, in relevant part, that the Federal Bureau
of Investigation (“FBI”) had properly closed plaintiff's
Freedom of Information Act (“FOIA”) request after
plaintiff failed to pay outstanding fees and granted the
FBI's motion for summary judgment. Dkt. # 79 (“June
27 Order”), at 29–30. For the reasons stated below, the
motion is denied.

DISCUSSION
I. Local Rule 6.3
Local Rule 6.3 requires motions for reconsideration to
“be served within fourteen (14) days after the entry of the
Court's determination of the original motion.” E.D.N.Y.
R. 6.3. The order granting summary judgment to the
FBI was docketed on June 27, 2013. The Court granted

II. Reconsideration
Even were the Court to consider plaintiff's untimely
motion, the motion would nonetheless fail to meet the
strict standard applied to requests for reconsideration.
“Reconsideration is an extraordinary remedy to be
employed sparingly in the interests of finality and
conservation of scarce juridical resources.” Richards v.
N. Shore Long Island Jewish Health Sys., No. CV 10–
4544(LDW)(ETB), 2013 WL 950625, at *1 (E.D.N.Y.
Mar. 12, 2013) (internal quotation marks omitted).
“[R]econsideration will generally be denied unless the
moving party can point to controlling decisions or data
that the court overlooked-matters, in other words, that
might reasonably be expected to alter the conclusion
reached by the court.” Shrader v. CSX Transp., Inc., 70
F.2d 255, 257 (2d Cir.1995). Such a motion “should not
be granted where the moving party seeks to relitigate an
issue already decided,” Shrader, 70 F.2d at 257, or seeks
“to advance new issues or theories of relief that were not

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1

Davis v. U.S. Dept. of Homeland Sec., Not Reported in F.Supp.2d (2013)
2013 WL 6145749

previously presented to the court,” Mahadeo v. N.Y. City
Campaign Finance Bd., 514 F. App'x 53, 55 (2d Cir.2013).
*2 Nothing in plaintiff's motion for reconsideration
alters the outcome in this case. Plaintiff first argues
that, because the FBI allegedly failed to respond to
the plaintiff's FOIA requests, it forfeited its authority
to terminate his request pursuant to 5 U.S.C. § 552(a)
(6)(C)(i). In making this argument, plaintiff interprets
5 U.S.C. § 552(a)(6)(C)(i) as preventing the FBI from
taking any action on his FOIA requests, in the absence
of a court order, once it has been sued because of
an allegedly inadequate response to those requests. 1
However, contrary to plaintiff's assertion, this language in
the FOIA statute simply allows a FOIA requestor who has
not received a response within the time limits described
under the statute to be deemed to have exhausted his
administrative remedies such that he may proceed to bring
suit. See N.Y. Times Co. v. U.S. Dep't of Defense, 499
F.Supp.2d 501, 506 (S.D.N.Y.2007) (plaintiff brought
suit after having been deemed to have exhausted his
administrative remedies under FOIA). Furthermore, this
provision of FOIA grants courts the discretion to retain
jurisdiction over a case while allowing a government
agency more time to conduct a records review and
comply with its FOIA requirements, and thus avoid a
ruling against it requiring it to make those disclosures.
See Bloomberg, L.P. v. U.S. Food & Drug Admin., 500
F.Supp.2d 371 (S.D.N.Y.2007) (considering whether to
grant government agency a stay of proceedings under this
provision). Thus, nothing in the provision would require
the FBI to get a court order before it could close out
plaintiff's FOIA request for failure to remit fees. What is
more, in its order, the Court considered the FBI's response
to plaintiff's requests and found that the FBI had properly
followed its own procedures as well as FOIA in assessing
fees and closing his file. See June 27 Order, at 29.
1

5 U.S.C. § 552(a)(6)(C)(i) states in relevant part:
“Any person making a request to any agency for
records under paragraph (1), (2), or (3) of this
subsection shall be deemed to have exhausted his
administrative remedies with respect to such request
if the agency fails to comply with the applicable time
limit provisions of this paragraph. If the Government
can show exceptional circumstances exist and that the
agency is exercising due diligence in responding to the

End of Document

request, the court may retain jurisdiction and allow
the agency additional time to complete its review of
the records....”

Second, plaintiff challenges the Court's ruling because,
he argues, he was improperly assessed with search fees
which were prohibited by 5 U.S.C. § 552(a)(4)(A) (viii).
That section of FOIA states: “An agency shall not assess
search fees ... if the agency fails to comply with any time
limit under paragraph (6), if no unusual or exceptional
circumstances ... apply to the processing of the request.” 5
U.S.C. § 552(a)(4)(A) (viii). This provision is inapplicable
because it is clear from the record that the $1,815.00
assessed in connection with plaintiff's request consisted
of duplication fees, not search fees. See Decl. of David
Hardy (“Hardy Decl.”), Dkt. # 69, ¶ 16; id., Ex. K. What
is more, even were the provision to apply, there were
“unusual circumstances” present sufficient to exclude a
delay here, where plaintiff made multiple FOIL requests to
multiple FBI offices yielding sixteen thousand pages and
fifteen CDs of potentially responsive material that the FBI
would need to comb through. See June 28 Order, at 9–10.
Under FOIA, “unusual circumstances” include “the need
to search for and collect the requested records from field
facilities or other establishments that are separate from the
office processing the request” and “the need to search for,
collect, and appropriately examine a voluminous amount
of separate and distinct records which are demanded in a
single request.” 5 U.S.C. § 552(a)(6)(B)(iii)(D)(II).
*3 Plaintiff has introduced no facts or controlling
authority that would “reasonably be expected to alter the
conclusion reached by the court,” Shrader, 70 F.2d at 257,
and has therefore not met the stringent standard required
for reconsideration.

CONCLUSION
For the foregoing reasons, plaintiff's motion for
reconsideration is denied.

SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 6145749

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2

R.B. ex rel. A.B. v. Department of Educ. of City of New York, Not Reported in F.Supp.2d...
2012 WL 2588888

2012 WL 2588888
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
R.B., on behalf of his minor child A.B., Plaintiff,
v.
The DEPARTMENT OF EDUCATION OF the
CITY OF NEW YORK, et uno, Defendants.
No. 10 Civ. 6684(RJS).
|
July 2, 2012.

MEMORANDUM AND ORDER
RICHARD J. SULLIVAN, District Judge.
*1 Plaintiff, proceeding pro se and on behalf of his
minor child, A.B., brings this action pursuant to the
Individuals with Disabiiities Education Act (“IDEA”)
against the New York City Department of Education
and the Board of Education (collectively, “Defendants”
or “DOE”). 1 Now before the Court is Plaintiff's motion
for reconsideration, pursuant to Local Civil Rule 6.3, of
the Court's September 16, 2011 Memorandum and Order
(“September 16 Order”) granting Defendants' motion for
summary judgment. See R.B. v. Dep't of Educ. of City of
N.Y., No. 10 Civ. 6684(RJS), 2011 WL 4375694 (S.D.N.Y.
Sept. 16, 2011). For the reasons that follow, the Court
DENIES Plaintiff's motion.
1

Consistent with the Court's September 16, 2011
Memorandum and Order, the Court refers to the
amended statute—the Individuals with Disabilities
Education Improvement Act, see Pub.L. No. 108–
446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1,
2005—as “IDEA.”

I. BACKGROUND 2
2

The Court assumes the parties' full familiarity with
both the facts of this case, see R.B., 2011 WL 4375694,
at *2–3, and the September 16 Order itself.

On June 26, 2006, the DOE convened a Committee
on Special Education (“CSE”) team to formulate an

Individualized Education Program (“IEP”) for Plaintiff's
daughter, A.B., who is a student with a disability
and was twelve years old at the time relevant to this
action. R.B., 2011 WL 4375694, at *2. The CSE team
recommended that A.B. be placed in a residential program
at an approved non-public school, although the DOE
did not provide a specific placement at that time. Id.
Without notifying the DOE, on July 5, 2006, Plaintiff
remitted a non-refundable deposit to The Vanguard
School (“Vanguard”), a private school in Florida with
a residential program, and enrolled A.B. at Vanguard,
which she attended for the entire 2006–07 school year.
Id. On March 19, 2009—more than two years after
Plaintiff unilaterally withdrew A.B. from the New York
City school system and enrolled her at Vanguard—
Plaintiff filed a due process complaint, which alleged
that Defendants had failed to provide A.B. with a free
appropriate public education (“FAPE”) for the 2006–07
school year and sought reimbursement of the tuition and
fees that he paid to Vanguard. Id . at *3.
After conducting an administrative hearing, the Impartial
Hearing Officer (“IHO”) granted Plaintiff's request for
tuition reimbursement on January 6, 2010. Id. DOE
appealed to the State Review Office (“SRO”), which
reversed the IHO decision and found, in relevant part,
“that (i) Plaintiff's claim accrued no later than September
2006, when Plaintiff had committed to sending A.B. to
Vanguard for the school year; (ii) the DOE's failure to file
a response to the due process complaint did not constitute
a waiver of the statue of limitations defense; and (iii) no
exception to IDEA'S statute of limitations applied. Id. at
*3 (citing SRO Op. at 11).
On September 8, 2010, Plaintiff appealed to this Court,
seeking review of the SRO's decision, and on September
16, 2011, the Court granted Defendants' motion for
summary judgment. In its September 16 Order, the Court
held, inter alia, that: (1) “Plaintiff's cause of action accrued
no later than September 2006 and, therefore, is untimely,”
id. at *4; (2) “Defendants did not waive the statute of
limitations defense by failing to file a response to the
due process complaint,” id. at *6; and (3) “the [IDEA's]
statute of limitations was not tolled by Defendants' alleged
failure to provide Plaintiff with a notice of procedural
safeguards,” id. at *7.
*2 On October 13, 2011, the Court received a letter
from Plaintiff requesting leave to file a motion for

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1

R.B. ex rel. A.B. v. Department of Educ. of City of New York, Not Reported in F.Supp.2d...
2012 WL 2588888

reconsideration of the Court's September 16 Order.
Thereafter, on October 19, 2011, the Court received a
letter from Defendants opposing Plaintiff's request and
asserting that Plaintiff's request was untimely and “fail[ed]
to set forth any points of controlling law or fact that ...
might have caused the Court to reach a different result.”
By Order dated October 20, 2011, the Court set a briefing
schedule for Plaintiffs motion and directed Plaintiff to
“address the procedural and substantive challenges raised
in Defendants' letter.” On November 14, 2011, Plaintiff
filed his motion for reconsideration. The motion was fully
submitted as of December 30,2011.

II. DISCUSSION
A. Plaintiff's Motion is Procedurally Deficient
As a preliminary matter, the Court has little difficulty
concluding that Plaintiff's motion is untimely under Rule
6.3 of the Local Civil Rules (“Rule 6.3”). Pursuant
Rule 6.3, “a notice of motion for reconsideration ...
of a court order determining a motion shall be served
within fourteen (14) days after the entry of the Court's
determination of the original motion.” Failure to timely
submit a motion for reconsideration is sufficient grounds
for denying it. See, e.g., Pietrisch v. JP Morgan Chase, 789
F.Supp.2d 437, 457 (S.D.N.Y.2011) (denying a motion
for reconsideration as untimely); Siemens Westinghouse
Power Corp. v. Dick Corp., 219 F.R.D. 552, 554
(S.D.N.Y.2004) (same). Moreover, a plaintiff's pro se
status “does not insulate him from complying with the
relevant procedural rules.” Gibson v. Wise, 331 F.Supp.2d
168, 169 (E.D.N.Y.2004) (denying as untimely a pro se
plaintiff's motion for reconsideration).
Here, the Court's Order was filed on September 16, 2011,
so any motion for reconsideration was due no later than
September 30, 2011. Although Plaintiff argues that he
should be excused from his late filing “[a]s a matter of
equity” because he was only “three or four business days”
late, the record belies Plaintiff's point. Plaintiff did not file
his motion for reconsideration until November 14, 2011
and did not even write to the Court requesting leave to file
a motion for reconsideration until October 13, 2011 (the
“October 13 Letter”). Indeed, in his October 13 Letter,
Plaintiff informed the Court that he was “follow[ing] up”
on his call to chambers “earlier this week” (Doc. No.
24), indicating that Plaintiff did not even contact the

Court regarding a possible motion for reconsideration
until October 10, 2011 at the earliest. Therefore, even
liberally construing the record, Plaintiff still missed the
deadline to file a motion for reconsideration by at least
ten days. Accordingly, because the Court finds that
Plaintiff's motion is untimely and that Plaintiff has failed
to offer a convincing explanation as to why he did
not comply with Rule 6.3, the Court denies Plaintiff's
motion as procedurally deficient. See Otto v. Town of
Washington, 71 F. App'x 91, 92 (2d Cir.2003) (upholding a
district court's denial of motion for reconsideration where
the motion was filed ten days after the judgment was
docketed); Darby v. Societe Des Hotels Meridien, No. 88
Civ. 7604(RWS), 1999 WL 642877, at *2 (S.D.N.Y. Aug.
24 1999) (explaining that Rule 6.3 deadlines will be strictly
enforced absent “sufficient justification” for failing to
comply (citing Algie v. RCA Global Commc'ns, Inc., 891
F.Supp. 875, 882 (S.D.N.Y.1994)).

B. Plaintiff's Motion is Also Deficient on the Merits
*3 Even if Plaintiff's motion were timely, which it is
not, the Court would nevertheless deny it on the merits.
“A motion for reconsideration under ... Rule 6.3 ‘will
generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked
—matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.’
“ Alt. Recording Corp. v. BCD Music Grp., Inc., No.
08 Civ. 5201(WHP), 2009 WL 2046036, at *1 (S.D.N.Y.
July 15, 2009) (quoting Shrader v. CSX Tramp., Inc., 70
F.3d 255, 257 (2d Cir.1995)). “Alternatively, a motion
for reconsideration may be granted to ‘correct a clear
error or prevent manifest injustice.’ “ Banco de Seguros
Del Estado v. Mutual Marine Offices, Inc., 230 F.Supp.2d
427, 428 (S.D.N.Y.2002) (quoting Griffin Indus., Inc. v.
Petroiam, Ltd., 72 F.Supp.2d 365, 368 (S.D.N.Y.1999)).
“The standard for reconsideration is strict and the
decision is ‘within the sound discretion of the district
court.’ “ Atl. Recording, 2009 WL 2046036, at *1 (quoting
Colodney v. Continuum Health Partners, Inc., No. 03
Civ. 7276(DLC), 2004 WL 185768, at *1 (S.D.N.Y.
Aug. 18, 2004)). Moreover, importantly, a motion for
reconsideration “may not be used to advance new facts,
issues[,] or arguments not previously presented to the
Court, nor may it be used as a vehicle for re-litigating
issues already decided by the Court.” Am. ORT, Inc. v.
ORT Israel, No. 07 Civ. 2332(RJS), 2009 WL 233950,

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2

R.B. ex rel. A.B. v. Department of Educ. of City of New York, Not Reported in F.Supp.2d...
2012 WL 2588888

at *3 (S.D.N.Y. Jan. 22, 2009) (internal quotation marks
omitted); accord Kahala Corp. v. Holtzman, No. 10 Civ.
4259(DLC), 2011 WL 1118679, at *1 (S.D.N.Y. Mar. 24,
2011) (citing Nat'l Union Fire Ins. Co. of Pittsburgh v. Stroh
Cos., Inc., 265 F.3d 97, 115 (2d Cir.2001)).
Here, Plaintiff fails to identify any controlling decisions
or facts that the Court overlooked and that, if properly
considered, “might reasonably be expected to alter” the
Court's September 16 Order. See Alt. Recording Corp.,
2009 WL 2046036, at *1. Instead, Plaintiff largely makes
the same arguments that he made in his briefing on the
motion for summary judgment-arguments that the Court
considered and rejected in its September 16 Order. For
instance, Plaintiff argues that his cause of action did
not accrue in September 2006 but rather at the close
of the 2006–07 school year—the alleged “earliest date
one could negotiate, petition[, and/or] collect from the
district.” (Mem. at 5.) However, the Court specifically
considered such an argument and rejected it in explaining
that, as a matter of law, his cause of action accrued no later
than September 2006, when he unilaterally withdrew his
daughter from the public school district and enrolled her
at Vanguard. R.B., 2011 WL 4375694, at *4 (citing M.D. v.
Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir.2003)).
Moreover, Plaintiff repeats, without any new factual or
legal support, that Defendants waived their ability to
assert a statue of limitations defense under the IDEA by
allegedly violating the Federal Rules of Civil Procedure,
the New York Code, and the IHO's directive that DOE
should plead the defense in a formal answer to Plaintiff's
due process complaint. (Mem. at 5–6.) However, again,
the Court considered and rejected these arguments in
its September 16 Order. R.B., 2011 WL 4375694, at
*4–6. Specifically, the Court held that the “SRO[, in
reversing the IHO decision,] correctly concluded that
Defendants did not waive the statute of limitations
defense by failing to file a response to the due process
complaint[s]” because: (1) affirmative defenses to due
process complaints are “qualitatively different than a
federal or state court pleading” that would be governed
by the Federal Rules of Civil Procedure or the New
York Code, respectively; and, (2) in any event, “A.B.'s
substantive rights ... were not impacted by Defendants'
failure to file a response to the due process complaint.”
Id. Therefore, Plaintiff's argument does alter the Court's
conclusion that Defendants did not waive the statue of
limitations defense.

*4 Plaintiff likewise advanced no controlling decisions or
facts that the Court overlooked in holding that Plaintiff
failed to establish that the statute of limitations should be
tolled by Defendants' alleged failure to provide Plaintiff
with a notice of procedural safeguards. Id. at *7. In
its September 16 Order, the Court rejected Plaintiff's
argument that the DOE “ ‘fail[ed] to provide the notice
of procedural safeguards at the [2006] CSE meeting,”
’ id. at *6 (citing Pl.'s Opp'n to Mot. for Summ. J),
concluding that, so long as parents receive a copy of
the procedural safeguards notice once per year, neither
the IDEA nor its implementing regulations require the
school district “to provide parents with a copy of the
procedural safeguards at every CSE meeting.” Id. Rather
than contesting this point directly, Plaintiff now claims
that he never received a notice of procedural safeguards,
whether at the 2006 CSE meeting or anytime thereafter.
(Mem. at 2–4.) However, Plaintiff's claim, even if true,
is insufficient to establish that the statute of limitations
should be tolled pursuant to 20 U.S.C. § 1415(f)(3)(D)
(ii). As the Court explained in its September 16 Order,
“[b]ecause Plaintiff did not raise this argument before the
IHO, there is no evidence in the record that would permit
this Court to make a finding as to whether Defendants
violated the regulation.” R.B., 2011 WL 4375694, at *7;
see Hope v. Cortines, 872 F.Supp. 14, 19 (E.D.N .Y.1995),
aff'd 69 F.3d 687 (2d Cir.1995). Although Plaintiff now
asserts that “[i]t is undisputed in the record that the district
failed to adhere to [its] obligations by failing to provide
[him] with [his] procedural safeguards notice” (Mem. at
9), the record is in fact bare one way or the other.
Accordingly, because Plaintiff has failed to put forward
any controlling decisions or facts that alter the Court's
conclusion, the Court declines to revisit its finding that
Plaintiff has waived his argument regarding notice of
procedural safeguards. 3
3

Plaintiff argues that the Court overlooked two cases
in issuing its September 16 Order: Board of Education
of Hendrick Hudson School District Westchester
County v. Rowley, 458 U.S. 176 (1982), and Union
School District v. Smith, 15 F.3d 1519 (9th Cir.1994).
(Mem. at 4; Reply at 2.) As an initial matter, Union
School District is not controlling; however, even
if it were, neither it nor Rowley alter the Court's
conclusion because neither case was decided before
Congress even incorporated a statute of limitations
into the IDEA. Therefore, it goes without saying that
the cases could not have addressed whether to toll a

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3

R.B. ex rel. A.B. v. Department of Educ. of City of New York, Not Reported in F.Supp.2d...
2012 WL 2588888
statute of limitations that did not yet exist. In any
event, Plaintiff cites these cases only for their broad
policy pronouncements (Mem. at 4), which do not
alter the conclusion that Plaintiff's claims are time
barred under the IDEA.

Furthermore, in its September 16 Order, the Court found
that even if Plaintiff's argument regarding procedural
safeguards notice were not waived, the statute of
limitations should still not be tolled because “there is no
evidence in the record that Plaintiff was denied meaningful
participation in the development of A.B.'s IEP .” R.B.,
2011 WL 4375694, at *7; see C.M. v. Bd. of Educ., 128
F. App'x 876, 881 (3d Cir.2005) (per curiam). The Court
based its conclusion on record evidence that Plaintiff
“attended the [2006] CSE meeting with an attorney who
specializes in education law” and who had “represented
Plaintiff in the filing of ‘more than five’ prior due process
complaint notices in connection with A.B.'s education.”
R.B., 2011 WL 4375694, at *7 (citing Tr. at 121–22 and
DX–2 at 2).
In an attempt to now rebut the Court's conclusion,
Plaintiff attaches new evidence to his motion for
reconsideration, including: (1) an affidavit of an
educational advocate who assisted Plaintiff at impartial
hearings and with A.B.'s IEB educational development
from 1998 to 2005 (Aff. of Miguel L. Salazar (“Salazar
Aff.”), dated Nov. 10, 2011); (2) signature pages from
IEP meetings from 1999 to 2005; and (3) Plaintiffs reply
brief previously submitted to the IHO. However, each of
these documents is inadmissible for purposes of Plaintiff's
motion for reconsideration. Indeed, “[t]he law in this
Circuit is clear: a party is not permitted to put forth new
facts, issues or arguments that were not presented to the
court on [the original] motion.” Cohen v. Fed. Express
Corp., No. 06 Civ. 00482 (RJH/THK), 07 Civ. 01288
(RJH/THK), 2007 WL 1573918, at *4 (S.D.N.Y. May
24, 2007) (internal quotation marks omitted) (collecting
cases); cf. In re Palermo, No. 08 Civ. 7421(RPP), 2011 WL
446209, at *8 n. 4 (S.D.N.Y. Feb. 7, 2011) (explaining that
“[r]econsideration under ... Rule 6.3 is not an invitation
for the parties to treat the court's initial decision as the
opening of a dialogue in which that party may then
use such a motion to advance new theories or adduce
new evidence in response to the court's ruling” (internal
quotation marks omitted)); Scott v. City of New York, No.
02 Civ. 9530(SAS), 2009 WL 3010593, at *1 (S.D.N.Y.
Sept. 21, 2009) (explaining that the purpose of ... Rule
6.3 is to “ensure the finality of decisions and to prevent

the practice of a losing party examining a decision and
then plugging the gaps of a lost motion with additional
matters” (internal quotation marks omitted)).
*5 Particularly here, where Plaintiff has not even
attempted to demonstrate that the new evidence could not
have been discovered with reasonable diligence before the
Court's ruling, the Court will not consider such evidence.
See Webb v. City of New York, No. 08 Civ. 5145(CBA),
2011 WL 5824690, at *1 (S.D.N.Y. Nov. 17, 2011) (“[T]o
the extent that a motion for reconsideration relies on new
evidence, the movant must demonstrate that the newly
discovered evidence could not have been discovered ‘with
reasonable diligence’ prior to the court's ruling” (internal
quotation marks omitted)); cf. Tatum v. City of New York,
No. 06 Civ. 4290(BSJ)(GWG), 2009 WL 976840, at *1
(S.D.N.Y. Apr. 9, 2009) (“To obtain relief from judgment
based on newly discovered evidence, the movant must
demonstrate that the newly discovered evidence could not
have been discovered ‘with reasonable diligence’ prior to
the court's ruling.” (citing Fed.R.Civ.P. 60(b)(2)). 4
4

Even if the new evidence were admissible for purposes
of Plaintiff s motion for reconsideration, it would
not alter the Court's conclusion that there is “no
evidence in the record that Plaintiff was denied
meaningful participation in the development of A.B.'s
IEP.” R.B., 2011 WL 4375694, at *7. Indeed, the
Affidavit of Mr. Salazar only bolsters the Court's
prior conclusion because it demonstrates that, in
addition to being accompanied by an attorney at the
2006 CSE meeting, Plaintiff was accompanying by
an educational advocate at IEP meetings from 1999
to 2005. (See Salazar Aff. ¶ 4.) Moreover, although
Plaintiff includes signature pages from IEP meetings
from 1999 to 2005, he did not attach the signature
page from the 2006 IEP meeting. Therefore, these
signature pages do not alter the Court's conclusion,
based on a careful examination of the record, that
Plaintiff was represented at the 2006 IEP meeting by
an attorney specializing in education law. See R.B.,
2011 WL 4375694, at *7 (citing Tr. at 119–20; DX–
2 at 2).

Accordingly, because Plaintiff has failed to set forth
controlling law or facts that the Court overlooked in
deciding the September 16 Order, Plaintiff's motion for
reconsideration fails on the merits.

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4

R.B. ex rel. A.B. v. Department of Educ. of City of New York, Not Reported in F.Supp.2d...
2012 WL 2588888

III. CONCLUSION
As noted in the September 16 Order, DOE's failure to
provide placement for A.B. undoubtedly put Plaintiff
in a difficult position. Indeed, the Court is sympathetic
to Plaintiff's decision to expend substantial sums of his
own money to ensure that his daughter received an
education tailored to her unique circumstances. However,
the “IDEA'S two-year statute of limitations is intended
to protect other interests that Congress has deemed
important, such as the timely and fair resolution of

disputes arising under the statute.” R.B., 2011 WL
4375694, at *7. Thus, in light of the reasons set forth
above and in the Court's September 16 Order, as well
as the important interest in the finality of decisions, see
Scott, 2009 WL 3010593, at *1, the Court denies Plaintiff's
motion for reconsideration of the September 16 Order.

SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 2588888

End of Document

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

5

Leonard v. Lowe's Home Centers, Inc., Not Reported in F.Supp.2d (2002)
2002 WL 548745

2002 WL 548745
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Raymond A. LEONARD, Plaintiff,
v.
LOWE'S HOME CENTERS, INC., Defendant.
No. 00 CIV. 9585(RWS).
|
April 12, 2002.
Attorneys and Law Firms
Raymond A. Leonard, Poughkeepsie, Plaintiff Pro Se.
Littler Mendelson, New York, By Regina Del Priore,
Esq., Rich Weinerman, Esq., Of Counsel, for Defendant.

OPINION
SWEET, D.J.
*1 Plaintiff Raymond A. Leonard (“Leonard”), a pro
se litigant, has moved pursuant to Local Rule for the
Southern District of New York 6.3 and Rules 59 and 60
of the Federal Rules of Civil Procedure for this Court
to reconsider its order dismissing Leonard's complaint,
alleging discrimination and retaliation, against defendant
Lowe's Home Centers (“Lowe's”).

New York, Leonard had until August 30, 2001 to serve
any opposing affidavits. Leonard did not file opposition
papers by that date, or any time thereafter.
A court-ordered pretrial hearing was scheduled for
September 11, 2001. The hearing was cancelled due to the
attack on the World Trade Center.
On September 26, 2001, Lowe's was notified that the
motion to dismiss was scheduled to be heard “on the
papers” on October 3, 2001 and that Leonard had not
timely filed his opposition papers. Lowe's documented the
conversation and sent a copy to Leonard and the Court.
After receiving this notification, Leonard did not submit
opposition papers or seek an extension of time to do so.
On November 30, 2001, Leonard wrote to the Court to
determine when the Court would reschedule a new hearing
on the motion to dismiss.
By letter dated December 4, 2001, the Court advised
Leonard that the motion to dismiss was handled on
submission and was sub judice . Leonard received the letter
on December 13, 2001.
On December 6, 2001, the Court granted Lowe's motion
to dismiss because there was no opposition. Lowe's
submitted an order of dismissal on December 18, 2001.
By letter dated December 15, 2001, Leonard filed the
motion to reconsider. The Court received the letter on
December 19, 2001.

For the following reasons, Leonard's motion is denied.

Facts
Leonard commenced this action in October 2000, by
filing his complaint. The complaint alleged that Lowe's
discriminated against Leonard based on his gender,
national origin, age and disability, and that Lowe's
retaliated against him. The complaint was filed on
December 18, 2000, and Leonard was granted an
additional 60 days from April 18, 2001, to serve the
summons and complaint on Lowe's. Lowe's acknowledged
receipt by mail of the summons and complaint on July 11,
2001.
Lowe's filed a motion to dismiss the complaint in its
entirety on August 14, 2001. Pursuant to Fed.R.Civ.P. 6(e)
and Local Civil Rule 6.1(b) for the Southern District of

On December 28, 2001, the Court issued a judgment
granting Lowe's motion to dismiss “for the reasons stated
in the Court's Memo endorsed Order dated 12/6/01.” That
order was entered on the docket on January 4, 2002.
Lowe's filed an opposition to Leonard's motion to
consider on January 30, 2002. The motion was fully
briefed and heard on submission on February 13, 2002.

Discussion
In addressing the present motion, the Court is mindful
that the plaintiff is proceeding pro se and that his
submissions should be held “to less stringent standards
than formal pleadings drafted by lawyers ....” ” Hughes v.
Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam)
(quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,

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Leonard v. Lowe's Home Centers, Inc., Not Reported in F.Supp.2d (2002)
2002 WL 548745

595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21,
22 (2d Cir.1993). The Court recognizes that it must make
reasonable allowances so that a pro se plaintiff does not
forfeit rights by virtue of lack of legal training. Traguth v.
Zuck, 710 F.2d 90, 94 (2d Cir.1983). Indeed, district courts
should “read the pleadings of a pro se plaintiff liberally
and interpret them to raise the strongest arguments they
suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d
Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir.1994). Nevertheless, the Court is also aware that
pro se statute “does not exempt a party from compliance
with relevant rules of procedural and substantive law.”
Traguth, 710 F.2d at 95 (quotations omitted).

decision to grant or deny the motion rests in the discretion
of the district court. AT & T Corp, 2000 WL 1174992, at
*1.

I. Reconsideration of Issues of Fact and Law
*2 A motion for reconsideration “shall be served within
ten days after the docketing of the court's determination
of the original motion” and shall set forth “the matters or
controlling decisions which counsel believes the court has
overlooked.” Local Civ. R. 6.3. (“Rule 6.3”). The Order
was docketed on December 10, 2001. The Court received
Leonard's motion on December 19, 2001. It is not clear
whether the motion was served within the ten day window.

Leonard also submitted a brief on various employment
discrimination cases. However, he offered no controlling
case law that the Court overlooked and that could
reasonably alter the Court's opinion.

Even if Leonard's motion had been timely served, he fails
to identify any material issues of fact or law overlooked by
this Court that might reasonably be expected to alter the
Court's decision. Dotson v. Griesa, 2001 WL 812227, at *1
(S.D.N.Y. March 22, 2001); AT & T Corp. v. Community
Network Servs., Inc., 2000 WL 1174992, at *1 (S.D.N.Y.
Aug. 18, 2000) (quoting Interactive Gift Express, Inc. v.
Compuserve, 1999 WL 49360, at *1 (S.D.N.Y. Feb. 2,
1999).
Rule 6.3 is intended to “ensure the finality of decisions
and to prevent the practice of a losing party examining a
decision and then plugging the gaps of a lost motion with
additional matters.” Carolco Pictures, Inc. v. Sirota, 700
F.Supp. 169, 170 (S.D.N.Y.1988) (citation omitted). The
parties may not present new facts or theories at this stage.
Ralph Oldsmobile Inc. v. General Motors Corp., 2001 WL
55729, at *2 (S.D.N.Y. Jan. 23, 2001); Familienstifung v.
Askin, 137 F.Supp.2d 438, 442 (S.D.N.Y.2001).
Rule 6.3 must be narrowly construed and strictly applied
so as to avoid duplicative rulings on previously considered
issues, and may not be employed as a substitute for
appealing a final judgment. Shamis v. Ambassador
Factors, 187 F.R.D. 148, 151 (S.D.N.Y.1999). The

Leonard alleges neither that the Court's decision
overlooked controlling precedent nor missed important
factual matters. Leonard contends that the disruption
caused by the September 11, 2001 attacks prevented
Leonard's timely response. Leonard's response was due
on August 30, 2001. Leonard should have contacted the
Court at that time to request an extension. He was also
notified by an October 4, 2001 letter that his opposition
papers had not been received. Again, Leonard did not seek
at that time an extension from this Court.

II. Fed.R.Civ.P. 60
Rule 60 provides in relevant part that “on motion and
upon such terms as are just, the court may relieve a
party ... from a final judgment, order, or proceeding for
the following reasons:
(1) Mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a
new trial under Rule 59(b);
*3 (3) fraud ... misrepresentation, or other misconduct
of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment on which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or
(6) any other reason justifying relief from the operation
of the judgment.”
Fed.R.Civ.P. 60(b).

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Leonard v. Lowe's Home Centers, Inc., Not Reported in F.Supp.2d (2002)
2002 WL 548745

Properly applied, Rule 60(b) strikes a balance between
serving the ends of justice and preserving the finality
of judgments. House v. Secretary of Health and Human
Services, 688 F.2d 7, 9 (2d Cir.1982). “Since 60(b) allows
extraordinary judicial relief, it is invoked only upon
a showing of exceptional circumstances.” Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir.1986); see also United States
v. Bank of New York, 14 F.3d 756, 759 (2d Cir.1994);
Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir.1990). A
motion seeking such relief is “addressed to the sound
discretion of the district court.” Id.
Pro se litigants “should not be impaired by the harsh
application of technical rules.” Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir.1983). Yet they are not excused from
producing “highly convincing” evidence in support of
motions to vacate a final judgment. Gwynn v. Deleo,
1991 WL 125185, at *3–*4 (S.D.N.Y. July 3, 1991). A
court should find that the movant possesses a meritorious
claim in order to grant relief. Cobos v. Adelphi Univ., 179
F.R.D. 381, 385 (E.D.N.Y.1998) (citing cases); Babigian v.
Association of the Bar of the City of New York, 144 F.R.D.
30, 33 (S.D.N.Y.1992).
Leonard did not specify under which subsections of
Rule 60(b) he sought relief. This Court will assume that
he intended the only potentially applicable provisions,
subsections (1), (4) and (6).

As discussed above, Leonard claims that the events of
September 11, 2001, prevented his response to the motion
to dismiss.
*4 In Ishay v. City of New York, 178 F.Supp.2d
314 (E.D.N.Y.2001), defense counsel's inability to access
their office, which was in close proximity to the World
Trade Center, for one month following the attacks on
September 11, 2001, constituted good cause to extend
the time for the defendants to file a notice of appeal of
judgment. Id. at 317. Although the circumstances did not
fit into the previous, narrow factual scenarios of Supreme
Court precedent, the court recognized that “the events of
September 11, 2001 were ‘unique’ in every sense of the
word, and clearly beyond any court could previously have
anticipated.” Id.
The events of September 11, 2001, certainly could
constitute reason for excusable neglect, given a scenario
such as the defense counsel in Ishay faced. However,
Leonard fails to explain why his circumstances following
the attack should do so. In addition, Leonard was capable
of pursuing some aspects of this lawsuit less than a week
after September 11, 2001. In a letter dated September
17, 2001, Leonard requested discovery responses from
Lowe's. He could just as easily have sent a letter 1 to this
Court seeking an extension.
1

A. Rule 60(b)(1): Mistake, inadvertence, surprise, or
excusable neglect
Excusable
neglect
encompasses
“inadvertence,
carelessness, and mistake,” and may be found where
a party's failure to comply with filing deadlines is
attributable to negligence. Canfield v. Van Atta Buick/
GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir.1997)
(citing Pioneer Investment Services Co. v. Brunswick Assoc.
Ltd. Partnership, 507 U.S. 380, 388 (1993)). Excusable
neglect will not be found, however, where there has been
abuse by a party. Id. In determining whether excusable
neglect exists, a court should take account of all relevant
circumstances surrounding the party's omission. Id. Those
circumstances include prejudice to the adversary, the
length of the delay, the reason for the error, the potential
impact on the judicial proceedings, whether it was within
the “reasonable control of the movant,” and whether the
movant acted in good faith. Pioneer, 507 U.S. at 395.

Leonard may have had difficulty in telephoning the
Court due to interruptions in service caused by the
events of September 11, 2001. The mail continued to
get through, however. In any case, Leonard does not
aver that he attempted either to telephone or to mail
such a request to the Court.

In any case, opposition papers were due prior to the
attack, on August 30, 2001. Leonard did not seek an
extension at any point in the process, and still has failed
to explain why he did not timely file, or timely seek an
extension. Such failure is inexcusable. Fetik v. New York
Law School, 1999 WL 459805 at *4 & n. 4 (S.D.N.Y.
June 29, 1999) (finding no excusable neglect under Rule
60(b)(1) where plaintiff did not explain why her excuse
for not filing opposition papers left her unable to request
a further extension to oppose the motion to dismiss);
Long v. Carberry, 151 F.R.D. at 243 (S.D.N.Y.1993)
(finding no excusable neglect or manifest error under Rule
60(b)(1) because “if Plaintiff required additional time to
respond to defendants' motion to dismiss, he should have

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Leonard v. Lowe's Home Centers, Inc., Not Reported in F.Supp.2d (2002)
2002 WL 548745

employed the proper procedures to file an application for
an extension of time ....”).

B. Rule 60(b)(4): judgment is void
A judgment is void under Rule 60(b)(4) where the court
deciding the issue did not have jurisdiction over the
person or the subject matter, or has “acted in a manner
inconsistent with due process of law.” Beller & Keller v.
Tyler, 120 F.3d 21, 23 (2d Cir.1997) (internal quotation
omitted).
This Circuit has established that district courts must
inform a pro se litigant of the results of not responding to a
motion for summary judgment or a motion to dismiss that
is being considered as a motion for summary judgment.
E.g., Irby v. New York City Transit Authority, 262 F.3d
412, 413–14 (2d Cir.2001). Because Leonard is appealing
a motion to dismiss, which was not treated as a summary
judgment motion, these precedents do not apply.
In addition, having reviewed the complaint and the
motion to dismiss, there is no basis on which this claim
could have survived.
End of Document

C. Rule 60(b)(6): Any other reason justifying relief
*5 Presumably the reason here is also that the events of
September 11, 2001, prevented Leonard from responding.
This argument is unavailable, however, as Rule 60(b)(6)
is only applicable where no other subsection is available.
Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir.1986); Delacruz
v. Stern, 166 F.3d 1200 (2d Cir.1998) (unpublished).
Leonard's mistake falls under Rule 60(b)(1) and thus
cannot also fit within this subsection.

Conclusion
For the foregoing reasons, Leonard's motion to reconsider
is denied.
It is so ordered.

All Citations
Not Reported in F.Supp.2d, 2002 WL 548745

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4

Gause v. Suffolk County, Not Reported in F.Supp.2d (2007)
2007 WL 776752

2007 WL 776752
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Dwayne GAUSE, Plaintiff,
v.
SUFFOLK COUNTY, et al., Defendants.
No. 02–CV–4600 (SJF)(WDW).
|
March 7, 2007.
Attorneys and Law Firms
Dwayne Gause, Stromville, NY, pro se.
Robert A. Caccese, Suffolk County Attorney's Office,
Hauppauge, NY, for Defendants.

OPINION & ORDER
FEUERSTEIN, J.
I. Introduction
*1 On August 14, 2002, pro se plaintiff Dwayne Gause
(“Plaintiff”) commenced this action with the filing of three
(3) complaints, alleging violations of his civil rights under
42 U.S.C. § 1983. 1 Plaintiff filed an Amended Complaint
on December 19, 2005. On January 25, 2007, the Court
denied Plaintiff's motion for leave to further amend his
Complaint. By letter dated February 14, 2007, Plaintiff
seeks reconsideration of that decision and/or permission
to appeal the decision. Plaintiff also seeks appointment
of counsel. For the reasons set forth below, Plaintiff's
motion for reconsideration and request for permission to
appeal are denied. Plaintiff's application for appointment
of counsel is respectfully referred to Magistrate Judge
William Wall for an opinion and order.
1

By Order dated May 16, 2005, the Court consolidated
the three (3) cases into lead case number 02–CV–4600.

II. Analysis
A. Motion for Reconsideration
Local Rule 6.3 sets a ten (10) day filing requirement for
motions for reconsideration and rehearing. Local Rule of

the United States District Courts for the Southern and
Eastern Districts of New York 6 .3. Plaintiff filed his letter
motion on February 14, 2007, twenty (20) days after the
date of the Court's Order. Therefore, Plaintiff's motion for
reconsideration is untimely. Nevertheless, given Plaintiff's
pro se incarcerated status, and the date that he received
a copy of the Court's Order is unclear, the Court will
consider Plaintiff's motion on the merits.
Motions for reconsideration are generally “denied unless
the moving party can point to controlling decisions or data
that the court overlooked....” Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 256–57 (2d Cir.1995) (citations omitted).
A motion for reconsideration is not a proper tool to
relitigate arguments and issues already considered by the
Court in deciding the original motion, see United States
v. Gross, No. 98–CR–0159, 2002 WL 32096592, at *4
(E.D.N.Y. Dec. 5, 2002), nor is it proper to raise new
arguments and issues in a motion for reconsideration.
See Lehmuller v. Incorporated Village of Sag Harbor, 982
F.Supp. 132, 135 (E.D.N.Y.1997). The standard for a
motion for reconsideration is demanding, and should be
“narrowly construed and strictly applied so as to avoid
repetitive arguments on issues that have been considered
fully by the Court.” Wechsler v. Hunt Health Sys.,
Ltd., 186 F.Supp.2d 402, 410 (S.D.N.Y.2002) (quoting
Dellefave v. Access Temps., Inc., No. 99 Civ. 6098, 2001
WL 286771, at *1 (S .D.N.Y. Mar. 22, 2001)).
Plaintiff has not pointed to any controlling decisions
or data that the Court overlooked. Plaintiff claims that
the incidents alleged in his proposed Second Amended
Complaint happened on different days, months, and years
than those alleged in his original Complaint. However,
this contention is directly contradicted by Plaintiff's
Complaint and proposed Second Amended Complaint
both of which refer to only May 17, 2000 and June 28,
2000, as the dates of the alleged violations of Plaintiff
s protective custody rights. See Complaint, Page 15;
Proposed Second Amended Complaint, Page 1. Further,
contrary to Plaintiff's contentions, “it is within the sound
discretion of the court whether to grant leave to amend.”
John Hancock Mutual Life Insurance Co. v. Amerford
International Corp., 22 F.3d 458, 462 (2d Cir.1994). Here,
the Court denied Plaintiff leave to further amend his
Complaint. The Court declines to reconsider that decision.

B. Interlocutory Appeal

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1

Gause v. Suffolk County, Not Reported in F.Supp.2d (2007)
2007 WL 776752

*2 A party seeking leave to appeal a district court's
interlocutory order must first obtain certification from
that court. The district court must find: (1) that its order
“involves a controlling question of law;” (2) “as to which
there is a substantial ground for difference of opinion;”
and that (3) appeal from the order may “materially
advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b). The determination of certification for
a Section 1292(b) interlocutory appeal lies within the
discretion of the district judge. See Ferraro v. Secretary of
the U.S. Dept. of Health and Human Services, 780 F.Supp.
978, 979 (E.D.N.Y.1992).
Plaintiff has not satisfied any of these three (3)
prerequisites, but will have an opportunity to appeal all
decisions of this Court at the conclusion of the litigation.

denied Plaintiff's application for appointment of counsel.
Plaintiff now seeks appointment of counsel for a third
time.
Since discovery is complete and the case will soon be ready
for trial, Plaintiff's application for appointment of counsel
is respectfully referred to Magistrate Judge Wall.

III. Conclusion
For the reasons set forth above, Plaintiff's motion for
reconsideration is DENIED. Plaintiff's request that the
Court certify its January 25, 2007 Order for interlocutory
appeal is also DENIED. Plaintiff's application for
appointment of counsel is respectfully referred to
Magistrate Judge William Wall for an opinion and order.
IT IS SO ORDERED.

C. Appointment of Counsel
On September 6, 2003, Judge Arthur Spatt, then assigned
to this case, denied Plaintiff's application for appointment
of counsel. On November 16, 2004, this Court again
End of Document

All Citations
Not Reported in F.Supp.2d, 2007 WL 776752
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2

Whittle v. Ulloa, Slip Copy (2016)
2016 WL 7351895

2016 WL 7351895
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Avery Whittle, Plaintiff,
v.
Dr. Ulloa, N.P. Uszynski, Warden Volmer,
Grievance Coordinator Smiley, Defendants.

In deciding the pending motions, the Court accepts as true
all well-pleaded allegations in the amended complaint and
draws all reasonable inferences in plaintiff's favor. The
following facts are taken from the amended complaint and
the document attached thereto, 1 plaintiff's opposition to
defendants' motions to dismiss, 2 and Parts I and II of the
grievance form. 3
1

15 CV 8875 (VB)
|
Signed 12/19/2016
Attorneys and Law Firms
Avery Whittle, Collins, NY, pro se.
James Christopher Freeman, Kent Hazzard, LLP, Syma
B. Funt, White Plains, NY, for Defendants.
2
OPINION AND ORDER
Briccetti, United States District Judge
*1 Plaintiff Avery Whittle, proceeding pro se, brings
this Section 1983 prisoner civil rights action alleging
defendants N.P. Uszynski, Dr. Raul Ulloa, Captain W.
Smiley, and Warden Volmer (the last two of whom will be
collectively referred to herein as the “County defendants”)
were deliberately indifferent to plaintiff's medical needs
in both their personal and official capacities. Liberally
construed, the amended complaint (Doc. #17) also asserts
state law claims for medical malpractice and negligence
against all defendants.
Now pending are defendants' motions to dismiss the
amended complaint. (Docs. ##27, 43). For the following
reasons, the County defendants' motion and Dr. Ulloa's
motion are GRANTED in their entireties. N.P. Uszynski's
motion is GRANTED in part and DENIED in part.
The Court has subject matter jurisdiction under 28 U.S.C.
§ 1331.

BACKGROUND

3

Plaintiff filed his original complaint on November 10,
2015, asserting claims against a Jane Doe defendant,
as well as Dr. Ulloa, Capt. Smiley, and Warden
Volmer. (Doc. #1). After being informed of the
identity of the John Doe defendant, plaintiff filed an
amended complaint on April 4, 2016, replacing the
Jane Doe defendant with N.P. Uszynski. (Doc. #17).
The amended complaint is filed as one eleven-page
document containing a completed Complaint form
and a three-page summary of plaintiff's allegations.
For ease of reference, the Court will cite to the page
number as stamped by the ECF filing system at the
top of each page.
In liberally construing a pro se plaintiff's complaint,
it is generally appropriate to consider allegations
made in plaintiff's opposition papers. See Samuels v.
Fischer, 168 F. Supp. 3d 625, 645 n.11 (S.D.N.Y.
2016).
Along with their motions to dismiss, defendants
submitted plaintiff's grievance form, which includes
plaintiff's grievance (Part I) and the written denial
of his grievance (Part II). (Docs. ##29-3, 45-2).
Defendants notified plaintiff that in light of the
additional materials, the Court may convert the
instant motion to dismiss into a motion for
summary judgment. (Docs. ##30, 39). However,
in deciding a motion to dismiss, this Court may
consider documents external to the complaint without
converting the motion into one for summary
judgment when “there [is] undisputed notice to
[plaintiff] of [the documents'] contents and [the
documents] were integral to [plaintiff's] claim.”
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d
42, 48 (2d Cir. 1991). Here, plaintiff signed both
Part I and Part II and referenced both his own
grievance and the denial of the grievance several times
throughout his amended complaint. Accordingly, the
Court may consider these documents in deciding the
instant motion. For the same reasons, the necessity of
translating this motion to dismiss into a motion for
summary judgment on the basis that defendants rely
on documents other than the amended complaint is

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1

Whittle v. Ulloa, Slip Copy (2016)
2016 WL 7351895
“largely dissipated,” and the Court will not do so. See
id.

*2 Plaintiff was detained at Westchester County Jail
(“WCJ”) at all relevant times. According to the amended
complaint, on or about December 14, 2014, Dr. Aaron
Roth, who is not a party to this lawsuit, surgically
removed a cyst from the left side of plaintiff's neck at
Montefiore Mt. Vernon Hospital in Mount Vernon, New
York. Dr. Roth closed the surgical incision with thirty-six
staples, and provided written instructions for WCJ staff
to change plaintiff's bandages daily and to give plaintiff
antibiotics and pain medication.
Upon returning to WCJ, N.P. Uszynski, a nurse at
WCJ, read Dr. Roth's instructions and removed plaintiff's
bandages. However, N.P. Uszynski allegedly failed to
replace plaintiff's bandages, leaving plaintiff's stapled
incision exposed to open air. Plaintiff alleges that from
December 14, 2014, through January 6, 2015, he was
seen only twice by WCJ medical staff, and that his
bandages were not changed during this period because the
medical department claimed to be short-staffed due to the
holidays. Plaintiff alleges the failure to properly treat his
incision caused it to become infected and severely swollen,
resulting in severe pain.
On January 3, 2015, plaintiff filed an administrative
grievance alleging the medical department did not provide
him with proper treatment or create an adequate postsurgery treatment plan. In response to this grievance,
plaintiff states he was seen by Dr. Ulloa, the medical
director of WCJ, who ordered that plaintiff's dressing be
changed and plaintiff be given more effective medication.
Plaintiff further alleges that Capt. Smiley, the grievance
coordinator, denied plaintiff's grievance, and Warden
Volmer, the warden of WCJ, denied plaintiff's appeal of
Capt. Smiley's denial.

DISCUSSION
I. Standard of Review
In deciding a Rule 12(b)(6) motion, the Court evaluates
the sufficiency of the operative complaint under the “twopronged approach” articulated by the Supreme Court
in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First,
plaintiff's legal conclusions and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements,” are not entitled to the assumption

of truth and are thus not sufficient to withstand a motion
to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150,
161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in
the complaint must meet a standard of “plausibility.”
Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 564 (2007). A claim is facially
plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. at 678. “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id.
The Court must liberally construe submissions of pro
se litigants, and interpret them “to raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam)
(internal quotation marks and citation omitted). Applying
the pleading rules permissively is particularly appropriate
when, as here, a pro se plaintiff alleges civil rights
violations. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008). “Even in a pro se case,
however ... threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010) (internal quotation marks and citation omitted).
Nor may the Court “invent factual allegations” plaintiff
has not pleaded. Id.

II. Deliberate Indifference to Medical Needs Claim
*3 Plaintiff alleges N.P. Uszynski was deliberately
indifferent to his medical needs in violation of his
constitutional rights. To assert a claim for constitutionally
inadequate medical care, plaintiff must allege “acts or
omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976). This test has both an objective and
a subjective component: plaintiff must plead facts showing
(i) the alleged deprivation of medical care is “sufficiently
serious,” and (ii) the officials in question acted with
a “sufficiently culpable state of mind.” Salahuddin v.
Goord, 467 F.3d 263, 279-80 (2d Cir. 2006).

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2

Whittle v. Ulloa, Slip Copy (2016)
2016 WL 7351895

A. Objective Component
The objective component has two subparts. “The first
inquiry is whether the prisoner was actually deprived
of adequate medical care,” keeping in mind that only
“reasonable care” is required. Salahuddin v. Goord,
467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S.
825, 839-40 (1970)). “Second, the objective [inquiry] asks
whether the inadequacy in medical care is sufficiently
serious” by examining “how the offending conduct is
inadequate and what harm, if any, the inadequacy has
caused or will likely cause the prisoner.” Salahuddin v.
Goord, 467 F.3d at 280 (citing Helling v. McKinney, 509
U.S. 25, 32-33 (1993)). “A serious medical need arises
where the failure to treat a prisoner's condition could
result in further significant injury or the unnecessary and
wanton infliction of pain.” Woods v. Goord, 2002 WL
731691, at *4 (S.D.N.Y. April 23, 2002) (quoting Chance
v Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)) (internal
quotation marks omitted). 4
4

Plaintiff will be provided with copies of all
unpublished opinions cited in this ruling. See Lebron
v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).

Regarding the first subpart, plaintiff has sufficiently
alleged he was “actually deprived of adequate medical
care.” Of course, medical care is not inadequate
simply because a plaintiff disagrees with the treating
official's medical judgment. See Bolden v. Cnty. of
Sullivan, 523 Fed. Appx. 832, 834 (2d Cir. 2013). Here,
however, plaintiff does not simply disagree with the
medical treatment rendered. According to the amended
complaint, Dr. Roth provided specific written instructions
for plaintiff's post-operative care, and N.P. Uszynski's
treatment was allegedly blatantly deficient. Dr. Roth
ordered that plaintiff be provided “antibiotics, pain
relievers, and the daily changing of the bandages” to
cover the “thirty-six staples to close the wound” left from
the removal of a “large cyst lodged on the left side of
his neck.” (Am. Compl. at 8). Instead of following Dr.
Roth's orders, N.P. Uszynski allegedly removed plaintiff's
bandages and did not apply a new bandage, “leaving
the plaintiff's recently stapled wound exposed.” (Am.
Compl. at 8). Whether N.P. Uszynski provided antibiotics
at this time is also unclear. Accordingly, plaintiff has
sufficiently alleged that N.P. Uszynski's failure to replace
his bandages deprived him of “reasonable care.” See
Salahuddin v. Goord, 476 F.3d at 279.

Regarding the second subpart, “[t]he failure to provide
treatment for an otherwise insignificant wound may
violate the Eighth Amendment if the wound develops
signs of infection, creating a substantial risk of injury
in the absence of appropriate medical treatment.” Smith
v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003); see also
Odom v. Kerns, 2008 WL 2463890, at *7 (S.D.N.Y. June
18, 2008) (holding a nurse's failure to adequately treat
cuts that later became infected was sufficiently serious to
satisfy the objective prong).
*4 Plaintiff alleges N.P. Uszynski's deficient treatment
caused his “wound to become infected and severely
swollen with puss oozing out of the wound,” which
was so painful that it was difficult or impossible for
plaintiff to sleep during the three weeks he was not
treated according to Dr. Roth's orders. (Am. Compl. at
9). Moreover, the location of the infection on plaintiff's
neck further supports the inference that the infection
resulted in significant risk of further injury and pain for
plaintiff. Cf. Laguna v. Kwan, 2015 WL 872366, at *5
(S.D.N.Y. Jan. 28, 2015) (“The type of pain associated
with a broken finger, and an infection in that finger, is
not sufficiently serious.”). As such, plaintiff has plausibly
alleged he experienced a serious medical need sufficient to
satisfy the second subpart.
Accordingly, plaintiff has satisfied both subparts of the
objective prong.

B. Subjective Component
“[A] deliberate indifference claim can lie where prison
officials deliberately ignore the medical recommendations
of a prisoner's treating physicians.” Johnson v. Wright,
412 F.3d 398, 404 (2d Cir. 2005) (citing Gill v. Mooney,
824 F.2d 192, 196 (2d Cir. 1987)). Moreover, “a physician
may be deliberately indifferent if he or she consciously
chooses an easier and less efficacious treatment plan.”
Chance v. Armstrong, 143 F.3d at 703 (internal quotation
marks and citation omitted).
Plaintiff has sufficiently alleged N.P. Uszynski was
deliberately indifferent to his medical needs. Plaintiff
alleges N.P. Uszynski disregarded Dr. Roth's instructions
to change his bandages, and plaintiff's amended complaint
indicates no medical justification for doing so. Moreover,
although defendants argue N.P. Uszynski disregarded
Dr. Roth's instructions based on her medical judgment,
this argument is contrary to plaintiff's allegation that,

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after plaintiff complained about his deficient treatment,
plaintiff was told that he could not receive the ordered
treatment because “it was the holidays and there was
only a skeleton crew on, also that the doctor was
not [at the jail].” (Am. Compl. at 9). Thus, according
to the amended complaint, N.P. Uszynski diverged
from Dr. Roth's instructions because doing so was
easier than implementing the instructions as written.
Liberally construed, plaintiff has alleged N.P. Uszynski
was deliberately indifferent by choosing an “easier and
less efficacious treatment plan.” Chance v. Armstrong,
143 F.3d at 703 (internal quotation marks and citation
omitted).
Accordingly, plaintiff has sufficiently pleaded facts that,
if proven true, could satisfy both prongs of the deliberate
indifference to medical needs standard.

III. Personal Involvement of Dr. Ulloa, Capt. Smiley,
and Warden Volmer
To state a claim under Section 1983, plaintiff “must
plead that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676.
Prior to Ashcroft v. Iqbal, a supervisor's personal
involvement in a claimed constitutional violation could
have been established by providing evidence of any one or
more of the following five methods:
(1) the defendant participated
directly in the alleged constitutional
violation, (2) the defendant, after
being informed of the violation
through a report or appeal,
failed to remedy the wrong,
(3) the defendant created a
policy or custom under which
unconstitutional practices occurred,
or allowed the continuance of
such a policy or custom, (4) the
defendant was grossly negligent
in supervising subordinates who
committed the wrongful acts, or (5)
the defendant exhibited deliberate
indifference to the rights of inmates
by failing to act on information
indicating that unconstitutional acts
were occurring.

*5 Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(citations omitted). After Ashcroft v. Iqbal, however,
district courts within this circuit have been divided as to
whether claims alleging personal involvement under the
second, fourth, and fifth of these methods remain viable.
See Marom v. City of N.Y., 2016 WL 916424, at *15
(S.D.N.Y. Mar. 7, 2016) (collecting cases). The Second
Circuit has yet to resolve this dispute. Id.
Nevertheless, even assuming the validity of all five Colon
methods, plaintiff's allegations fail adequately to plead
the personal involvement of Dr. Ulloa, Capt. Smiley, and
Warden Volmer for the following reasons.

A. Dr. Ulloa
Plaintiff alleges that, as “head medical Doctor at Valhalla
Dept. of Corrections,” Dr. Ulloa “had an obligation to
accommodate the plaintiff with proper medical attention
post-surgery or delegate one of his subordinate[s] to
do so.” (Am. Compl. at 9). Plaintiff appears to seek
the imposition of supervisory liability based on “[t]he
bare fact that [Dr. Ulloa] occupies a high position” at
WCJ, which is insufficient to plead Dr. Ulloa's personal
involvement. Colon v. Coughlin, 58 F.3d at 873-74.
Moreover, plaintiff asserts Dr. Ulloa “intentionally
delayed access to medical care by deliberately delaying
treatment that was prescribed by Dr. Roth.” (Am.
Compl. at 9). However, plaintiff does not describe any
specific actions or statements to support this allegation.
Accordingly, this conclusory assertion is not entitled to the
presumption of truth afforded well-pleaded allegations,
Ashcroft v. Iqbal, 556 U.S. at 678, and thus fails to
establish Dr. Ulloa's personal involvement under any of
the five Colon methods.
In his opposition to defendants' motions to dismiss,
plaintiff also alleges Dr. Ulloa personally treated him
on January 3, 2015. However, plaintiff acknowledges
that Dr. Ulloa ordered plaintiff's dressing to be changed
and provided him more effective pain medication after
treating him. Plaintiff does not claim this treatment was
inadequate. Plaintiff has therefore failed to allege that
these actions deprived him of a constitutional right.
Accordingly, plaintiff has failed to allege Dr. Ulloa's
personal involvement in any inadequate medical care
under any of the Colon methods.

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B. County Defendants
Liberally construed, plaintiff alleges Capt. Smiley and
Warden Volmer personally deprived plaintiff of his
constitutional rights by denying plaintiff's administrative
grievance, which “informed [them] of the violation
through a report or appeal, [but] failed to remedy the
wrong.” Colon v. Coughlin, 58 F.3d at 873. These
allegations fail to state sufficient personal involvement.
Courts in this circuit disagree over whether an allegation
that a prison official received and denied an inmate's
administrative grievance, without more, is sufficient to
establish personal involvement. Sharma v. D'Silva, 157
F. Supp. 3d 293, 304 (S.D.N.Y. 2016) (collecting cases).
Nevertheless, in determining whether such a denial
establishes a defendant's personal involvement in a claim
of deliberate indifference to medical needs, many courts
have considered “(i) the precise nature of a defendant's
response to a grievance letter and (ii) the nature of
the defendant's employment (including the degree of
oversight over the patient associated with the defendant's
position).” Id. As such, a non-medical administrator's pro
forma denial of a grievance based on deference to the
opinions of medical staff does not establish that nonmedical administrator's personal involvement. See Joyner
v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002).
Conversely, “[a] supervisor's detailed, specific response
to a plaintiff's complaint suggests that the supervisor
has considered the plaintiff's allegations and evaluated
possible responses,” and may therefore establish personal
involvement. Mateo v. Fischer, 682 F. Supp. 2d 423,
430-31 (S.D.N.Y. 2010). The Court finds this reasoning
persuasive.
*6 Applying this reasoning, plaintiff's allegations fail to
establish the County defendants' personal involvement.
Plaintiff does not allege the County defendants provided
a detailed or specific response. Instead, plaintiff claims
the County defendants “in cahoots chose to deny
the plaintiff's grievance without due diligence” and
“without proper and an impartial investigation.” (Am.
Compl. at 9). This purported lack of investigation
suggests the County defendants' denials were pro forma,
and not sufficiently detailed or specific to establish
personal involvement. Moreover, Part II of the grievance
form, incorporated by reference in plaintiff's amended
complaint, plainly indicates that a medical staff member
was delegated to investigate plaintiff's grievance. The only

indication either County defendant participated in this
denial is Capt. Smiley's signature at the bottom of the
form. This further shows that the County defendants'
involvement, as non-medical personnel, was pro forma
and deferential to the opinions of medical staff.
Accordingly, plaintiff has failed to allege the County
defendants' personal involvement.

IV. Claims Against Defendants in Their Official
Capacities
Plaintiff asserts that he wishes to sue each defendant “in
his or her official capacity.” (Am. Compl. at 8). In Hafer v.
Melo, 502 U.S. 21, 25 (1991), the Supreme Court specified
two types of lawsuits in which government officials are
named as defendants. The first type, “official-capacity
suits[,] generally represent only another way of pleading
an action against an entity of which an officer is an
agent.” Id. at 25 (internal quotation marks and citations
omitted). “Personal-capacity suits, on the other hand, seek
to impose individual liability upon a government officer
for actions taken under color of state law.” Id. Plaintiff's
attempt to sue defendants in their official capacities
appears to be claims of the former type.
Nevertheless, plaintiff has not named Westchester County
as a defendant. Moreover, a municipality such as the
County may be held liable under Section 1983 only “when
execution of [its] policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury.” Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Plaintiff
has not alleged his injury was in any way related to the
execution of a policy or custom. Accordingly, this Court
will not construe plaintiff's amended complaint as raising
a claim against Westchester County because plaintiff does
not appear to have even attempted to state such a claim,
despite suing defendants in their official capacities.

V. State Law Claims
Liberally construed, plaintiff's amended complaint
contains state law tort claims for negligence and medical
malpractice. However, this Court does not have subject
matter jurisdiction over these claims because plaintiff has
failed to allege he served a notice of claim in compliance
with N.Y. Gen. Mun. Law § 50-e(1), as required by id.
§ 50-i. See Nieblas-Love v. N.Y.C. Hous. Auth., 165 F.
Supp. 3d. 51, 76 (E.D.N.Y. 2016) (finding the failure to

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comply with N.Y. Gen. Mun. Law § 50-e(1) with respect to
state law claims requires dismissal of the state law claims
for lack of subject matter jurisdiction). Accordingly, the
Court dismisses these claims sua sponte.

VI. Leave to Amend
The Court should freely grant leave to amend a complaint
“when justice so requires.” Fed. R. Civ. P. 15(a).
Moreover, when a pro se plaintiff fails to state a cause
of action, the Court “should not dismiss without granting
leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (internal quotation marks and citation omitted).
However, even upon a liberal reading of the amended
complaint, this Court finds no indication that a valid claim
might be stated against Capt. Smiley, Warden Volmer, or
Dr. Ulloa. Accordingly, plaintiff is not granted leave to
amend his claims against these defendants.

*7 The motions of defendants Ulloa, Smiley, and Volmer
to dismiss are GRANTED in their entireties.
The motion of defendant N.P. Usznyski to dismiss is
GRANTED as to the state law claims, and DENIED as
to the Section 1983 claim.
The Clerk is instructed to terminate the motions (Docs.
##27, 43) and to terminate defendants Ulloa, Smiley, and
Volmer.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good
faith, and therefore in forma pauperis status is denied for
the purpose of an appeal. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.

All Citations
Slip Copy, 2016 WL 7351895

CONCLUSION

End of Document

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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