Wik v. City of Rochester

Filing 72

ORDER denying 71 Motion. Signed by Hon. Charles J. Siragusa on 6/22/09. (MWP)

UNITED STATES DISTRICT C O U R T W E S T E R N DISTRICT O F N E W Y O R K

DANIEL J O S E P H W I K , Plaintiff, -vsC I T Y OF R O C H E S T E R , e t al. Defendant. MEMORANDUM & ORDER 07 -CV-6541-CJS

S i r a g u s a , J . B e f o r e the C o u r t is Plaintiff's motion ( D o c k e t No. 71) "TO M O D I F Y O R D E R . " P l a i n t i f f s e e k s m o d i f i c a t i o n o f t h e " O r d e r o f t h e C o u r t d a t e d the 12th o f M a y 2009." The C o u r t issued two O r d e r s dated M a y 12, and both w e r e d o c k e t e d M a y 13. ( D o c k e t Nos. 6 7 & 6 8 . ) The C o u r t ' s M e m o r a n d u m and O r d e r ( D o c k e t No. 67) denied Plaintiff's applications seeking reconsideration o f the C o u r t ' s O r d e r ( D o c k e t No. 39) (denying Plaintiff's motion for a t e m p o r a r y restraining order), t h e C o u r t ' s O r d e r ( D o c k e t No. 42) (clarifying the Court's February 18, 2 0 0 9 O r d e r ) and t h e C o u r t ' s O r d e r ( D o c k e t Nos. 51 and 54) (denying Plaintiff's motion to strike D e f e n d a n t s ' answer). In its M e m o r a n d u m and O r d e r ( D o c k e t No. 68), the C o u r t clarified its Decision and O r d e r ( D o c k e t No. 21), which dismissed several o f P l a i n t i f f ' s claims. T h o u g h P l a i n t i f f d o e s n o t c i t e t h e F e d e r a l R u l e u n d e r w h i c h h e s e e k s relief, the C o u r t n o t e s t h a t F e d e r a l R u l e o f Civil P r o c e d u r e 6 0 p r o v i d e s r e l i e f f r o m a j u d g m e n t o r o r d e r as follows: On m o t i o n and j u s t terms, the c o u r t m a y relieve a party o r its legal r e p r e s e n t a t i v e f r o m a final j u d g m e n t , o r d e r , o r p r o c e e d i n g f o r t h e f o l l o w i n g reasons:

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(1) m i s t a k e , i n a d v e r t e n c e , s u r p r i s e , o r e x c u s a b l e neglect; ( 2 ) n e w l y d i s c o v e r e d e v i d e n c e that, with r e a s o n a b l e d i l i g e n c e , could n o t h a v e been discovered in time to move for a n e w trial u n d e r Rule 59(b); (3) fraud ( w h e t h e r p r e v i o u s l y called i n t r i n s i c o r extrinsic), m i s r e p r e s e n t a t i o n , or misconduct by an opposing party; (4) the j u d g m e n t is void; (5) the j u d g m e n t has been satisfied, released, o r discharged; it is based on an earlier j u d g m e n t that has been reversed o r vacated; o r applying it prospectively is no longer equitable; o r ( 6 ) a n y o t h e r r e a s o n t h a t j u s t i f i e s relief. Fed. R. Civ. P. 60(b) (2007). The Court's initial decision (Docket No. 21) was based on its application o f the Rooker-Feldman doctrine. Plaintiff, in this latest application seeking reconsideration o f that decision, disputes the applicability o f that doctrine to this case, and asserts that the State judge erroneously made a factual determination on a summary j udgment motion. Accordingly, the Court will assume that Plaintiff refers to Docket No. 21 in this latest application.

The Court has repeatedly cautioned Plaintiff to obtain counsel to assist him in this case. The Court's prior decision does not pass validity on the decision o f the State court, but holds only that it is prevented from doing so by the Rooker-Feldman doctrine. As the Court observed in its November 13, 2008, Decision and Order, Plaintiff, by this lawsuit, is attempting to obtain a writ o f certiorari for this Court to act as an appellate court and review the basis f o r the State decision. This is not permitted. In its prior decision, the Court wrote, "[a]s was the case in 1923 when Rooker was decided, only the Supreme Court has jurisdiction to hear an appeal from a state court action in which an appellant claims a

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constitutional violation, 28 U.S.C. § 12575 (1988), and the district courts have original jurisdiction, not appellate jurisdiction, 28 U.S.C. § 1331 (1980)."1 Accordingly, the Court finds no basis for reconsidering its prior decisions determining that the portions o f the complaint pertaining to the City's taking o f the real property at issue should be dismissed. Plaintiff's motion (Docket No. 71) is denied.

IT IS SO ORDERED. Dated: J u n e 6 ~ , 2 0 0 8 Rochester, N e w Y o r k ENTER:

c~~.~~_aUnited S t a t e s D i s t r i c t J u d g e

1The C o u r t also relied on the T a x Injunction A c t in its Decision and Order. 28 U.S.C. § 1341 (1940). -3-