Gambino v. Payne et al

Filing 370

ORDER acknowledging Gambino's 368 objections, treating them as a motion for reconsideration, and denying that motion. The case is referred back to Judge Roemer consistent with the referral order of January 1, 2016, Docket Item 221. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 2/21/2019. Chambers mailed a copy of order to pro se plaintiff on 2/21/2019. (LCH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID AUGUST GAMBINO,
Plaintiff,
v.
CHIEF PAYNE, et al.,

12-CV-824
ORDER ACKNOWLEDGING
OBJECTION

Defendants.

On February 5, 2019, this Court issued a Decision and Order (“D&O”) resolving
over twenty motions and requests made by the pro se plaintiff, David August Gambino.
Docket Item 366. On February 15, 2019, Gambino filed written “objections” to the D&O.
Docket Item 368.
I.

LACK OF NEED TO “OBJECT” TO WRITTEN DISTRICT COURT RULINGS
Of course, “[i]f a litigant believes that an error has occurred (to his detriment)

during a federal judicial proceeding, he must object in order to preserve the issue.”
Puckett v. United States, 556 U.S. 129, 134 (2009). “If he fails to do so in a timely
manner, his claim for relief from the error is forfeited.” Id. Indeed, “‘[n]o procedural
principle is more familiar [to the Supreme] Court than a right may be forfeited in criminal
as well as civil cases by the failure to make a timely assertion of the right before a
tribunal having jurisdiction to determine it.’” Id. (quoting Yakus v. United States, 321
U.S. 414, 444 (1944)).
Therefore, when a district court judge designates a magistrate judge to hear and
determine any nondispositive pretrial matter pending before the court, 28 U.S.C.

§ 636(b)(1)(A), or to submit to the district court proposed findings of fact and
recommendations for the resolution of a dispositive pretrial matter, § 636(b)(1)(B), the
statute provides “fourteen days . . . [to] serve and file written objections to such
proposed findings and recommendations,” § 636(b)(1)(C). An objection raised before
that deadline is a “timely assertion of the right before [the] tribunal having jurisdiction to
determine it,” Yakus, 321 U.S. at 444—that is the district court. See also Fed. R. Civ. P.
72 (explaining manner for objecting to a magistrate judge decisions and
recommendations to a district judges).
Similarly, as a general rule, if a party wishes to preserve a claim of error that
occurs at trial, the objecting party must object contemporaneously. A party does that
“by informing the court—when the court ruling or order is made or sought—of the action
the party wishes the court to take, or the party’s objection to the court’s action and the
grounds for that objection.” Puckett, 556 U.S. at 135 (quoting Fed. R. Civ. P. 51(b)).
“Failure to abide by this contemporaneous-objection rule ordinarily precludes the raising
on appeal of the unpreserved claim of trial error.” Id.
The rule requiring such objections “gives the district court the opportunity to
consider and resolve” an issue before a party brings that issue before the appellate
court. Puckett, 556 U.S. at 134.
Where, as here, the district court has issued a written decision resolving a party’s
claims, there is no point in filing “objections” to any of the judge’s rulings with which the
party disagrees: The judge already has been given the “opportunity to consider and
resolve” the issues. Id. The next step in making a “timely assertion of the [issue] before
a tribunal having jurisdiction to determine it,” Yakus, 321 U.S. at 444, is to raise that

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issue in an appeal of a final order 1 before the United States Court of Appeals for the
Second Circuit in a manner that complies with the Federal Rules of Appellate
Procedure. 2
Therefore, this Court will not address Gambino’s “objections” to the resolution of
claims in its D&O because this Court is not the proper tribunal to consider “objections”
to its own decisions.
II.

MOTION FOR RECONSIDERATION
Under United States District Court for the Western District of New York Local

Rule 7(d)(3), “[a] motion for reconsideration . . . must be filed and served no later than
twenty-eight (28) days after the entry of the challenged . . . order.” Even though this
Court does not believe that Gambino intends his “objections” to be a motion for
reconsideration, out of an abundance of caution, and given his pro se status, this Court
will treat them as such.

1

“A final order is an order by the district court that ‘ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.’” Hegna v. 650
Fifth Avenue Comp., 673 F. App’x 54, 56 (2016) (summary order) (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). “[A]ny order or other decision, however
designated, that adjudicates fewer than all the claims or rights and liabilities of fewer
than all the parties does not end the action as to any of the claims or parties and may
be revisited at any time before entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).
2

“In general, [the Court of Appeals has] appellate jurisdiction over only final
orders under 28 U.S.C. § 1291 or Rule 54(b) of the Federal Rules of Civil Procedure,
orders relating to an injunction or other matters enumerated in 28 U.S.C. § 1292(a),
interlocutory orders certified under 28 U.S.C. § 1292(b), and orders falling within the
collateral order doctrine.” Hegna, 673 F. App’x at 56.
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“A motion for reconsideration may be granted if the court has ‘overlooked matters
. . . which, had they been considered, might reasonably have altered the result reached
by the court.” Stiggins v. Sullivan, 2006 WL 1389776, *1 (W.D.N.Y. May 19, 2006)
(quoting Consolidated Gold Fields, PLC v. Angelo American Corp. of South Africa, Ltd.,
713 F. Supp 1457, 1476 (S.D.N.Y. 1989)). “The standard for granting a motion for
reconsideration is ‘strict, and reconsideration will generally be denied unless the moving
party can point to controlling decision or data that the court overlooked.’” Acao v.
Holder, 2014 WL 6460120, *1 (W.D.N.Y. Nov. 17, 2014) (quoting Analytical Surveys,
Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)). “Such motions, however
may not be used to relitigate matters already considered by the court.” Stiggins, supra
at *1.
Gambino’s objections do not meet this demanding standard. They generally list
thirty-three “issues” resolved by the Court in a manner that Gambino rejects. Docket
Item 368 at 2-4. What little else he says does nothing more than relitigate matters that
already have been decided, which is not an appropriate basis for seeking
reconsideration.
Therefore, to the extent that Gambino’s “objections,” Docket Item 368, are
properly construed as a motion for reconsideration, that motion is DENIED.
SO ORDERED.
Dated:

February 21, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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