Lolonga-Gedeon v. Child & Family Services
Filing
93
DECISION and ORDER denying 89 Motion for Reconsideration. Signed by Hon. Leslie G. Foschio on 8/4/2011. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROSALIE LOLONGA-GEDEON,
Plaintiff,
DECISION
and
ORDER
v.
08-CV-300A(F)
CHILD & FAMILY SERVICES,
Defendant.
APPEARANCES:
ROSALIE LOLONGA-GEDEON, Pro Se
410 Remington Pt., Apt. 205
Greenwood, Indiana 46143-8078
HODGSON, RUSS, LLP
Attorneys for Defendant
JOSHUA I. FEINSTEIN, of Counsel
The Guaranty Building, Suite 100
140 Pearl Street
Buffalo, New York 14202-4040
By papers filed April 7, 2011, Plaintiff moves for reconsideration of the court’s
Decision and Order, filed March 21, 2011, Doc. No. 84, (“the D&O”) denying Plaintiff’s
motion for leave to file an amended complaint (Doc. No. 89) (“Plaintiff’s reconsideration
motion”). Plaintiff’s complaint, filed April 18, 2008, alleges she was discriminatorily
discharged based on her race, color, sex, and national origin, and retaliation by
Defendant on account of Plaintiff’s complaints of the alleged discriminatory treatment.
Plaintiff seeks to add federal claims based on a hostile environment in violation of Title
VII, conspiracy in violation of 42 U.S.C. § 1985, and state claims for prima facie tort,
defamation and invasion of privacy. No proposed amended complaint was submitted
by Plaintiff in connection with Plaintiff’s motion to amend nor has Plaintiff submitted a
proposed amended complaint on Plaintiff’s instant motion for reconsideration.
Plaintiff’s motion to amend was denied based on this court’s finding that
Plaintiff’s motion was untimely as it was brought five months past the August 31, 2010
cut-off for such motions established by the applicable Scheduling Order dated July 19,
2010 (Doc. No. 47) which enlarged the time by an additional 60 days, at Plaintiff’s
request, for such motions to August 31, 2010 from June 30, 2010 (Doc. No. 47) as
established by the initial Scheduling Order filed April 21, 2010 (Doc. No. 39). D&O at 2.
Additionally, the court found that although the court granted Plaintiff’s request, filed
December 13, 2010 (Doc. No. 82), to stay proceedings pending the conclusion of
Plaintiff’s legal studies in London at the end of May, 2010 (Doc. No. 82), Plaintiff made
no effort to enlarge the period within which to seek permission to file an amended
complaint nor did Plaintiff give any indication at that time that Plaintiff intended to do so.
D&O at 2-3. Defendant opposed the motion based on the likelihood of prejudice from
the risk of stale memory of potential fact witnesses. Id. Finally, the court noted that
because of the length of time the case had been pending and the loss of an
approximately six-month period to accommodate Plaintiff’s unusual personal foreign
study requirements, the risk of further prolongation of the case if new claims, as
proposed by Plaintiff, were added at this late date weighed against Plaintiff’s request.
Id.
In seeking reconsideration, Plaintiff asserts the court abused its discretion in not
allowing Plaintiff time to file a proposed amended complaint, Plaintiff’s reconsideration
motion ¶ 6, and that Defendant frustrated Plaintiff’s ability to file for leave to serve an
amended complaint by the August 31, 2010 deadline by serving Defendant’s discovery
2
responses on August 17, 2010, in accordance with Plaintiff’s prior agreement granting
Defendant’s request for extension. Plaintiff’s reconsideration motion ¶ 8.
Whether to grant a motion for reconsideration is within the sound discretion of
the court, Griffin Industries, Inc. v. Petrojam, Ltd., 72 F.Supp.2d 365, 368 (S.D.N.Y
1999) (citing cases), and the criteria for reconsideration motions are “strictly construed
against the moving party.” Larouche v. Webster, 975 F.Supp. 490, 492 (S.D.N.Y. 1996)
(citing cases). A motion for reconsideration will not be granted absent a showing that
(1) the court overlooked factual matters or controlling decisions that might materially
have influenced the earlier decision, or (2) the “need to correct a clear error or prevent
manifest injustice.” Griffin Industries, 72 F.Supp.2d at 368 (internal citations omitted). A
motion for reconsideration is not intended as a vehicle for “presenting the case under
new theories, securing a rehearing on the merits, or otherwise taking ‘a second bite at
the apple.’” Id., at 368 (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.
1998)).
Here, Plaintiff’s reconsideration motion fails to point to any law or fact overlooked
by the court in issuing the D&O denying Plaintiff’s motion to amend. Notably, a fair
reading of Plaintiff’s motion to amend reveals Plaintiff makes no reference to the timing
of Defendant’s alleged service of responses to Plaintiff’s discovery requests as
preventing Plaintiff from properly assessing whether Plaintiff may have a basis for the
claims Plaintiff now wishes to add. Significantly, Plaintiff admits Defendant’s service
was agreed to by Plaintiff. Moreover, Plaintiff fails to explain how such discovery
responses could conceivably provide new information not previously known to Plaintiff
at the time of her discharge and administrative complaint concerning the putative
3
hostile working conditions, conspiracy, and state tort claims Plaintiff now seeks to
belatedly add to this case. As such, Plaintiff has failed to demonstrate that the court
overlooked facts or controlling law, or that failing to allow Plaintiff’s generalized claims
would cause a manifest injustice to Plaintiff, and Plaintiff’s motion for reconsideration
should therefore be DENIED.
CONCLUSION
Based on the foregoing, Plaintiff’s motion (Doc. No. 89) is DENIED.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: August 4, 2011
Buffalo, New York
ANY APPEAL OF THIS DECISION AND ORDER MUST BE TAKEN BY
FILING WRITTEN OBJECTIONS WITH THE CLERK OF COURT NOT
LATER THAN 14 DAYS AFTER SERVICE OF THIS DECISION AND
ORDER IN ACCORDANCE WITH FED.R.CIV.P. 72(a).
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?