“A motion for reconsideration is not an invitation to parties to ‘treat the court’s initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court’s ruling.’”
How later courts described this case
- “A motion for reconsideration is not an invitation to parties to ‘treat the court’s initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court’s ruling.’”
- holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue
- discussion in the context of both Local Civil Rule 6.3 and Fed. R. Civ. P. 59(e)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NOEL BROWN,
Petitioner,
19-CV-9628 (CM)
-against-
ORDER
STATE OF NEW YORK,
Respondent.
COLLEEN McMAHON, Chief United States District Judge:
Petitioner filed this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254,
challenging his April 22, 2019 conviction in the New York Supreme Court, New York County.
By order dated November 12, 2019, the Court denied the petition without prejudice because
Petitioner has not fully exhausted his state court remedies. On November 25, 2019, Petitioner
filed a “Request for Reconsideration,” challenging the November 12, 2019 dismissal order.
The Court liberally construes this submission as a motion under Fed. R. Civ. P. 59(e) to
alter or amend judgment and a motion under Local Civil Rule 6.3 for reconsideration, and, in the
alternative, as a motion under Fed. R. Civ. P. 60(b) for relief from a judgment or order. See
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also Tracy v.
Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (The solicitude afforded to pro se litigants takes a
variety of forms, including liberal construction of papers, “relaxation of the limitations on the
amendment of pleadings,” leniency in the enforcement of other procedural rules, and “deliberate,
continuing efforts to ensure that a pro se litigant understands what is required of him”) (citations
omitted). After reviewing the arguments in Petitioner’s submission, the Court denies the motion.
DISCUSSION
The standards governing Fed. R. Civ. P. 59(e) and Local Civil Rule 6.3 are the same.
R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d 506, 509 (S.D.N.Y. 2009). The movant must
demonstrate that the Court overlooked “controlling law or factual matters” that had been
previously put before it. Id. at 509 (discussion in the context of both Local Civil Rule 6.3 and
Fed. R. Civ. P. 59(e)); see Padilla v. Maersk Line, Ltd., 636 F. Supp. 2d 256, 258-59 (S.D.N.Y.
2009). “Such motions must be narrowly construed and strictly applied in order to discourage
litigants from making repetitive arguments on issues that have been thoroughly considered by the
court.” Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 391-92 (S.D.N.Y.
2000); see also SimplexGrinnell LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 2d 206
(S.D.N.Y. 2009) (“A motion for reconsideration is not an invitation to parties to ‘treat the court’s
initial decision as the opening of a dialogue in which that party may then use such a motion to
advance new theories or adduce new evidence in response to the court’s ruling.’”) (internal
quotation and citations omitted).
Petitioner asserts in his request for reconsideration that he has “done everything within
his power to exhaust his state court remedies.” (ECF No. 5 at ¶ 2.) He asserts further that he has
been “denied [his] rights to appeal even though a timely notice was made in the trial court.” (Id.)
The August 13, 2019 decision of the Appellate Division of the Supreme Court of the State of
New York belies Petitioner’s assertions. That decision, as this Court has previously noted,
enlarged Petitioner’s time by granting him 180 days from the receipt of the complete record to
perfect his appeal. See People v. Brown, 2019 N.Y. Slip Op. 77282 (App. Div. 2019). That time
has not yet expired.
Contrary to Petitioner’s assertions, it is clear that he has not been denied the right to
appeal and he has not completed the direct appeal of his conviction.
Petitioner has failed to demonstrate in his motion that the Court overlooked any
controlling decisions or factual matters with respect to the dismissed action. Petitioner’s motion
under Fed. R. Civ. P. 59(e) and Local Civil Rule 6.3 is therefore denied.
Under Fed. R. Civ. P. 60(b), a party may seek relief from a district court’s order or
judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing
party; (4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any other reason justifying
relief.
Fed. R. Civ. P. 60(b).
The Court has considered Petitioner’s arguments, and even under a liberal interpretation
of his motion, Petitioner has failed to allege facts demonstrating that any of the grounds listed in
the first five clauses of Fed. R. Civ. P. 60(b) apply. Therefore, the motion under any of these
clauses is denied.
To the extent that Petitioner seeks relief under Fed. R. Civ. P. 60(b)(6), the motion is also
denied. “[A] Rule 60(b)(6) motion must be based upon some reason other than those stated in
clauses (1)-(5).” United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009) (quoting Smith v.
Sec’y of HHS, 776 F.2d 1330, 1333 (6th Cir. 1985)). A party moving under Rule 60(b)(6) cannot
circumvent the one-year limitation applicable to claims under clauses (1)-(3) by invoking the
residual clause (6) of Rule 60(b). Id. A Rule 60(b)(6) motion must show both that the motion was
filed within a “reasonable time” and that “‘extraordinary circumstances’ [exist] to warrant relief.”
Old Republic Ins. Co. v. Pac. Fin. Servs. of America, Inc., 301 F.3d 54, 59 (2d Cir. 2002) (per
curiam) (citation omitted). Petitioner has failed to allege any facts demonstrating that
extraordinary circumstances exist to warrant relief under Fed. R. Civ. P. 60(b)(6). See Ackermann
v. United States, 340 U.S. 193, 199-202 (1950).
CONCLUSION
Accordingly, Petitioner’s motion for reconsideration (ECF No. 5) is denied.
The Clerk of Court is directed to mail a copy of this order to Petitioner and note service
on the docket.
Petitioner’s case in this Court under docket No. 19-CV-9628 (CM) is closed. The Court
will only accept for filing documents that are directed to the Second Circuit Court of Appeals. If
Petitioner files other documents that are frivolous or meritless, the Court will direct Petitioner to
show cause why he should not be barred from filing further documents in this action.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated: December 4, 2019
New York, New York hie. Iu Wyk
COLLEEN McMAHON
Chief United States District Judge