Micolo v. Fuller et al
DECISION AND ORDER denying 53 Plaintiff's Motion for Reargument. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/25/17. (JPL) (A copy of this Decision and Order has been mailed to Plaintiff)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORI<
MARCUS ANTHONY MICOLO,
DECISION AND ORDER
6:15-CV-06374 EA W
JAMES H. FULLER, et al.,
Plaintiff Marcus Anthony Micolo ("Plaintiff') filed this action on June 22, 2015,
seeking relief pursuant to 42 U.S.C. §§ 1983, 1985(3), 1986, and 1988. (Dkt. 1). On
October 28, 2016, United States District Judge Michael A. Telesca granted in part and
denied in part Defendant's motion for summary judgment. (Dkt. 49). The action was
then reassigned to the undersigned.
Plaintiff has filed a "motion for
reargument," asking this Court to "conduct a de novo review" of Judge Telesca's
Decision and Order. (Dkt. 53 at 2; see also Dkt. 52). For the reasons stated below,
Plaintiffs motion is denied.
Standard of Review
The Federal Rules of Civil Procedure do not recognize a motion for "reargument."
See Schaurer v. Coombe, 108 F.R.D. 180, 182 (W.D.N.Y. 1985). Although the basis for
Plaintiffs motion is not entirely clear, the Court interprets it as one for reconsideration
under Fed. R. Civ. P. 54(b). 1 A district court may reconsider its interlocutory decisions
under Rule 54(b), which provides:
[A ]ny order or other decision, however designated, that adjudicates fewer
than all the claims or the 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 revised
at any time before the entry of a judgment adjudicating all the claims and
all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b) (emphasis added); see also United States v. LoRusso, 695 F.2d 45,
53 (2d Cir. 1982) ("A district court has the inherent power to reconsider and modify its
interlocutory orders prior to the entry of judgment, whether they be oral, or written, and
Judge Telesca's Decision and Order is not a judgment as defined in Rule 54(a), in
that it is not a "decree ... [or] order from which an appeal lies." Fed. R. Civ. P. 54(a);
see also 28 U.S.C. § 1291 (stating that the courts of appeals "shall have jurisdiction of
appeals from all final decisions of the district courts of the United States" (emphasis
added)); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (noting that a final decision
"ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment." (citation omitted)). The Decision and Order is not a final decision, and no
judgment has been entered in the case. Thus, the motion cannot be one under Fed. R.
Civ. P. 59(e) or 60(b). See Fed. R. Civ. P. 59(e) ("A motion to alter or amend ajudgment
must be filed no later than 28 days after the entry of the judgment." (emphasis added));
Fed. R. Civ. P. 60(b) ("On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding .... " (emphasis added)); see,
e.g., Harris v. Millington, 613 F. App'x 56, 58 (2d Cir. 2015) (finding that Rule 60(b)
was inapplicable following a grant of summary judgment because a "counterclaim
remained pending, and the court did not direct entry of a final judgment."); Transaero,
Inc. v. La Fuerza Aerea Boliviana, 99 F .3d 53 8, 541 (2d Cir. 1996) ("By its own terms,
Rule 60(b) applies only to judgments that are final."); Bridgeforth v. McKean, No. 09CV-6162P, 2012 WL 3962378, at *2 (W.D.N.Y. Sept. 10, 2012) (concluding that
reconsideration of an interlocutory order was not available under Rule 60(b )); D.A. Elia
Constr. Corp. v. US. Fid. & Guar. Co., No. 94-CV-0190E(H), 1997 WL 215526, at *2
(W.D.N.Y. Apr. 16, 1997) (concluding that Rules 59(e) and 60(b) do not apply to
interlocutory orders); Burke v. Warren Cty. Sheriff's Dep't, 916 F. Supp. 181, 183
(N.D.N.Y. 1996) (finding that a Rule 60(b) motion was an "improper procedural vehicle"
for a request to reconsider a decision granting summary judgment in favor of some
there is no provision in the rules or any statute that is inconsistent with this power."
(citations omitted)); United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973) ("[S]o long
as the district court has jurisdiction over the case, it possesses inherent power over
interlocutory orders, and can reconsider them when it is consonant with justice to do
To merit reconsideration under Rule 54(b ), a party must show "an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear
error or prevent a manifest injustice." Official Comm. of Unsecured Creditors of Color
Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (citation
omitted), abrogated on other grounds by Bell At!. Corp. v. Twombly, 550 U.S. 554
(2007). Reconsideration is limited because prior decisions of the court are treated as the
law of the case. Id. A district court has discretion in reconsidering its prior decisions
under Rule 54(b ). Id. "A party may not use a motion for reconsideration to advance
theories of relief or facts that were not previously presented to the court." Harris v.
Millington, 613 F. App'x 56, 58 (2d Cir. 2015).
Plaintiff has Not Established His Entitlement to Relief
Plaintiff has not raised new or additional evidence or arguments in favor of his
motion for reconsideration, nor does he contend that there has been an intervening change
in controlling law. Instead, he simply repeats the arguments he originally made. (See
Dkt. 52; Dkt. 53; Dkt. 62).
Plaintiffs arguments are no more meritorious now than they were when Judge
Telesca originally ruled on them. The Court need not repeat the analysis set forth in the
October 28, 2016, Decision and Order, which considered the arguments raised by
Plaintiff and set forth Judge Telesca's interpretation of the relevant law. It is sufficient to
note that Plaintiff has not demonstrated clear error requiring reconsideration.
Plaintiff raises one argument that merits additional comment. He asserts that the
Decision and Order failed to address his claims against the dismissed Defendants brought
pursuant to 42 U.S.C. §§ 1985(3) and 1986. (Dkt. 53 at 1). The Decision and Order
addressed Plaintifrs conspiracy claims under § 1983.
(See Dkt. 49 at 15-20).
standard for a conspiracy under § 1983 is significantly similar to the standard under
§ 1985(3). Compare Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) ("To prove
a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state
actors or between a state actor and a private entity; (2) to act ih concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages."), with Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) ("A conspiracy
claim under Section 1985(3) requires a plaintiff to allege: [(l)] a conspiracy; [(2)] forthe
purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; and
[(3)] an act in furtherance of the conspiracy; [( 4)] whereby a person is either injured in
his person or property or deprived of any right or privilege of a citizen of the United
Judge Telesca's determination as to Plaintifrs conspiracy claims-that Plaintiff
failed to adequately plead facts which show that Defendants reached an agreement (see
Dkt. 49 at 15-20)-applies to claims under both§ 1983 and§ 1985(3). An agreement or
conspiracy is a necessary pleading element under both § 1983 and § 1985(3 ). See Upper
Hudson Planned Parenthood, Inc. v. Doe, No. 90-CV-1084, 1991 WL 183863, at
n.32 (N.D.N.Y. Sept. 16, 1991) ("For purposes of pleading requirements ... the Second
Circuit has not distinguished between a conspiracy to deprive a person of his
constitutional rights under § 1983 and one under § 1985(3); and thus, those cases
pertaining to § 1983 conspiracies have equal applicability in this action based upon
§ 1985(3)."). Plaintiff failed to sufficiently plead the r~quired element that Defendants
came to an agreement or entered into a conspiracy.
Additionally, "a § 1986 claim is contingent on a valid § 1985 claim." Graham v.
Henderson, 89 F.3d 75, 82 (2d Cir. 1996). As such, in the absence of a valid § 1985
claim, Plaintiffs § 1986 claims also fail vis-a-vis the dismissed Defendants.
In sum, Plaintiff has failed to meet the high standard necessary to justify
reconsideration of Judge Telesca's October 28, 2016, Decision and Order.
Plaintiffs motion is denied. 2
To the extent that Plaintiff seeks for the first time in his reply papers a default
judgment against certain Defendants for their failure to answer his complaint, (see Dkt.
62 at 6), Plaintiffs motion is procedurally inadequate. Plaintiff has not filed a motion for
a default judgment, nor has he requested that the Clerk of Court enter a default pursuant
to Fed. R. Civ. P. 55. Additionally, the Court notes that those Defendants against whom
Plaintiff requests a default judgment have answered the complaint. (Dkt. 56).
Dated: May 25, 2017
Rochester, New York
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