Calvin v. Schmitt et al

Filing 37

MEMORANDUM AND ORDER. For the foregoing reasons, Plaintiff's motion for reconsideration is DENIED. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 34 and to close the case. This constitutes the Court's Opinion and Order. So ordered. (Signed by Judge Nelson Stephen Roman on 9/25/2017) Copies Mailed By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL CALVIN,
Plaintiff,

No. 15 Civ. 6584 (NSR)

-against-

MEMORANDUM & ORDER

LIEUTENANT SCHMITT, et al.,
Defendants.

NELSON S. ROMAN, United States District Judge
Plaintiff, Michael Calvin ("Plaintiff"), by letter dated August 7, 2017, seeks
reconsideration of this Court's July 7, 2017 Opinion and Order (the "Opinion") (ECF No. 33)
granting Defendants' motions to dismiss. Plaintiff asserts the Comt misconstrued his assertions
and that his allegations are not fabricated.

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(Doc. No. 34) Defendants oppose the motion on the

basis it is untimely and lacks merit. For the following reasons, Plaintiff's motion for
reconsideration is denied.
Familiarity with the Opinion and the factual background ohhis action is assumed.

LEGAL STANDARD
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." In re Initial

Pub. Offering Sec. Litig., 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (internal citation and
quotation omitted), ajf'd sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05 Civ.
3430, 05 Civ. 4759 & 05 Civ. 4760, 2006 WL 1423785, at *l (2d Cir. 2006). Motions for

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reconsideration are governed by Local Civil Rule 6.3 and Federal Rule of Civil Procedure 60(b),
and "[t]he standard for granting a motion for reconsideration ... is strict." Targum v. Citrin
Cooperman & Company, LLP, No. 12 Civ. 6909 (SAS), 2013 WL 6188339, at *l (S.D.N.Y.
Nov. 25, 2013). Motions for reconsideration are "addressed to the sound discretion of the district
court and are generally granted only upon a showing of exceptional circumstances." Mendell ex
rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990).
Importantly, a motion to reconsider "is not a vehicle for ... presenting the case under
new theories ... or otherwise taking a second bite at the apple." Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quotation and citation omitted); see also
Nat'! Union Fire Ins. Co. ofPittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)
(quoting Polsby v. St. Martin's Press, No. 97 Civ. 0690 (MBM), 2000 WL 98057, at *l
(S.D.N.Y. Jan. 18, 2000)) (in moving for reconsideration, '"a party may not advance new facts,
issues, or arguments not previously presented to the Court."'). Generally, these motions "'will []
be denied unless the moving party can point to controlling decisions or data that the court
overlooked."' Analytical Surveys, 684 F.3d at 52 (quoting Shrader v. CSXTransp., Inc., 70 F.3d
255, 257 (2d Cir. 1995)). Lastly, unless otherwise provided by the Court or by statute or rule
(such as Fed. R. Civ. P. 50, 52, and 59), 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. Local Rule 63.
DISCUSSION

Plaintiff's motion must be denied in its entirety. Local Rule 63 requires a party seeking
reconsideration to file its motion within fourteen days after entry of the Court's determination.
Here, the Opinion was issued and entered on July 7, 2017. Plaintiff served his motion for

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reconsideration approximately thirty (30) days after the Opinion was issued. Thus, the motion is
untimely. Additionally, Plaintiff does not demonstrate how the Court overlooked a controlling
legal principal or law, nor misapplied relevant facts in the pleadings.
In the Opinion, Plaintiff was granted thirty-five days from July 7, 2017 to file an
amended Complaint only as to those claims that were dismissed without prejudice. More than
thirty five days have passed and Plaintiff has yet to file an amended pleading consistent with the
Opinion. Thus, the Complaint is deemed dismissed with prejudice.
CONCLUSION
For the foregoing reasons, Plaintiffs motion for reconsideration is DENIED. The Clerk
of the Court is respectfully directed to te1minate the motion at ECF No. 34 and to close the case.
This constitutes the Comt's Opinion and Order.

Dated:

September 25, 2017
White Plains, New York

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