Rogers v. Artus et al
DECISION AND ORDER denying 194 Motion for Reconsideration. Signed by Hon. Jeremiah J. McCarthy on 2/3/17. (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WALTER DIAZ, 94-A-5053,
(a/k/a ERIC ROGERS),
DECISION AND ORDER
SUPERINTENDENT D. ARTUS, et al.,
Before me is plaintiff’s motion  for reconsideration/de novo review of my
January 23, 2017 Text Order , which issued following a conference with counsel on
January 20, 2017 [189, 191]. For the following reasons, the motion is denied.
In seeking de novo review, counsel argues that “going into the January 20, 2017
informal conference, it was Plaintiff’s expectation that he would be given the opportunity to
formally brief this issue before the Court ruled”. Plaintiff’s Memorandum of Law [194-1], p. 10
of 20. Under the circumstances, that expectation was not reasonable. By e-mail dated January 17,
2017 , I asked whether the parties wished to proceed informally, or whether formal motion
practice would be necessary. No one indicated that formal motion practice would be required.
At the outset of the January 20 conference, I stated that “everybody indicated that it would be
appropriate to proceed by the informal conference method in lieu of a formal motion at this time.
So that’s what I will do” (, p. 4). Again, no one objected.
In fact, after I ruled that a further deposition of plaintiff would be allowed (,
pp. 13 et seq.), counsel for plaintiff did not request an opportunity to formally brief the issue, but
merely asked that I “clarify what the limitation on the deposition would be” (id., p. 17), which I
proceeded to do, stating that “I think it’s appropriate to allow new counsel to question the
plaintiff to fill in the gaps with respect to their individual clients, but not to cover in detail and in
general all the territory that’s been covered before” (id., pp. 19-20). Had plaintiff truly believed
that the January 20 conference was merely an informal “dry run”, I would have expected to hear
that during the conference, or at the latest on January 23, 2017, when my Text Order issued
Nor do I see a basis to reconsider Text Order. In deciding whether to allow another
deposition of a party, “[t]he Court has discretion to make a determination which is fair and
equitable under all the relevant circumstances”. Ganci v. U.S. Limousine Service, Ltd., 2011 WL
4407461, *2 (E.D.N.Y. 2011). For the reasons already discussed , I believe that I have done
so. A party seeking reconsideration must “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”. Plaintiff’s Memorandum of Law [194-1], p. 11 of 20 (quoting Shrader v.
CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995)). None of the arguments now
advanced by plaintiff would lead me to change my mind.
For these reasons, plaintiff’s motion  is denied, and his deposition shall
proceed as previously ordered .
Dated: February 3, 2017
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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