Sher v. Bonocci et al
Filing
33
DECISION AND ORDER: The Court interprets Plaintiff's 12/7/2017 letter 32 as a Motion for Reconsideration. For the reasons stated in this Decision and Order, that motion is DENIED and this case remains closed. SO ORDERED. A copy of this NEF and Decision and Order have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 12/15/2017. (AFM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JACK SHER,
Plaintiff,
Case # 13-CV-6168-FPG
v.
DECISION AND ORDER
DAVE BONOCCI et al,
Defendants.
INTRODUCTION
On December 7, 2017, pro se Plaintiff Jack Sher wrote a letter to the Court that it interprets
as a Motion for Reconsideration of the Court’s January 6, 2017 Decision and Order. 1 ECF No.
32. For the reasons that follow, his motion is denied.
BACKGROUND
Plaintiff filed this action on March 28, 2013 against his former employer and two of its
corporate officers. ECF No. 1. He sought a default judgment against Defendants on July 15, 2013,
and the Court denied that application on July 19, 2013. ECF Nos. 9, 10.
On August 15 and 23, 2013, Plaintiff and Defendants’ attorney appeared before United
States Magistrate Judge Jonathan W. Feldman to discuss potential settlement of this matter. ECF
Nos. 14, 15. After in depth proceedings where the full details of the settlement agreement and the
rights he was waiving were made clear to Plaintiff, the parties executed a stipulation of dismissal.
ECF No. 16. This case was closed on August 28, 2013. ECF Nos. 17, 18.
On October 18, 2013, Plaintiff filed a Notice of Appeal that purported to appeal the Court’s
prior denial of his default judgment application, despite conversations before Judge Feldman
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See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“[T]he pleadings of a pro se plaintiff must be read liberally
and should be interpreted to raise the strongest arguments that they could suggest.”) (citation omitted).
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informing him that he waived that right pursuant to the settlement agreement. ECF No. 20.
Defendants moved to dismiss the appeal, and the Second Circuit granted that application and
dismissed the appeal on February 20, 2014. ECF No. 22. Plaintiff filed another Notice of Appeal
on August 5, 2014, that again attempted to appeal the denial of his default judgment application.
ECF No. 23. The Second Circuit dismissed that appeal on October 30, 2014. ECF No. 28.
Plaintiff then brought an application to “litigate for the Plaintiff from Default Judgment of
6/24/13” and moved to proceed in forma pauperis. ECF Nos. 29, 30. On January 6, 2017, the
Court denied those motions, and Plaintiff now seeks reconsideration of that denial. ECF Nos. 31,
32.
DISCUSSION
I.
Legal Standard
Federal Rule of Civil Procedure 60 governs relief from a court judgment or order. Fed. R.
Civ. P. 60. The standard for granting a motion for reconsideration is “strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.
2012) (citation omitted). “A motion for reconsideration should be granted only when the [party]
identifies an intervening change of controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc.
v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (citation and internal quotation marks
omitted); Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). It is “not a vehicle for
relitigating old issues, presenting the case under new theories, securing a rehearing on the merits,
or otherwise taking a second bite at the apple.” Analytical Surveys, Inc., 684 F.3d at 52 (citation
omitted). Accordingly, on a motion for reconsideration a party may not merely offer the same
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“arguments already briefed, considered and decided” or “advance new facts, issues or arguments
not previously presented to the Court.” Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y.
1990).
II.
Analysis
Plaintiff’s letter to the Court asks for “review and reinstatement” of his case. ECF No. 32
at 1. Plaintiff reiterates his belief that he should be awarded a default judgment against Defendants.
Id. He also claims that Defendants’ attorney “forced” him to settle and “threatened” to freeze the
deposit of his Social Security checks. Id.
As noted in its January 6, 2017 Decision and Order, “[a] settlement stated on the record is
one of the strongest and most binding agreements in the field of the law and is thus entitled to
substantial deference.” Medinol Ltd. v. Guidant Corp., 500 F. Supp. 2d 345, 353 (S.D.N.Y. 2007)
(citation and internal quotation omitted). Further, “settlement agreements are contracts and must
therefore be construed according to general principles of contract law.” Red Ball Interior
Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999). In that regard, “it is an
elementary principle of contract law that a party’s subsequent change of heart will not unmake a
bargain already made.” Omega Eng’g, Inc. v. Omega, S.A., 432 F.3d 437, 445 (2d Cir. 2005)
(citation omitted).
As discussed in detail in its previous order, Plaintiff entered into a clear, voluntary, explicit,
and unqualified settlement on the record in open court before Judge Feldman. Plaintiff expressly
agreed to the terms of the agreement and to the dismissal of his case. The settlement was reduced
to writing and Plaintiff signed a stipulation dismissing the case. That stipulation explicitly
provided that “any claims, counterclaims, and cross-claims raised or not raised by and between the
parties, be and the same hereby are discontinued.” ECF No. 17. Thus, to the extent that Plaintiff
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had any claim against Defendants—by way of a default judgment or otherwise—they were
extinguished when this case settled.
Plaintiff has not pointed to “controlling decisions or data that the court overlooked,”
Analytical Surveys, Inc., 684 F.3d at 52, or “identifi[ed] an intervening change of controlling law,
the availability of new evidence, or the need to correct a clear error or prevent manifest injustice,”
Kolel Beth, 729 F.3d at 104. Instead, he merely offers the same “arguments already briefed,
considered and decided.” Schonberger, 742 F. Supp. at 119. Moreover, based on its review of the
settlement proceedings before Judge Feldman, the Court finds Plaintiff’s assertion that
Defendants’ attorney “forced” or “threatened” him in any way to be meritless.
CONCLUSION
For the reasons stated, Plaintiff’s Motion for Reconsideration (ECF No. 32) is DENIED
and this case remains closed.
IT IS SO ORDERED.
Dated: December 15, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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