Daly v. Westchester County Board of Legislators

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DANTE EDOARDO DALY,

Plaintiff,

ORDER

-against-

19-CV-04642 (PMH)

WESTCHESTER COUNTY BOARD OF

LEGISLATORS,

Defendant.

PHILIP M. HALPERN, United States District Judge:

On March 29, 2021, Plaintiff Dante Edoardo Daly (“Plaintiff”) filed a motion seeking: (1)

reconsideration of the March 26, 2021 Order denying his request to have Kenn Goldblatt

(“Goldblatt”), a lay person, represent him in this matter as an “ADAAA Advocate;” or (2) in the

alternative, appoint him a “next friend” under Federal Rule of Civil Procedure 17(c). (Doc. 85,

“Mot.”). Defendant, Westchester County Board of Legislators, opposed the motion by letter dated

April 2, 2021. (Doc. 98).

Turning first to the issue of reconsideration, such a motion “is appropriate where ‘the

moving party can 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.’” Henderson

v. Metro. Bank & Tr. Co., 502 F. Supp. 2d 372, 375-76 (S.D.N.Y. 2007) (quoting In re BDC 56

LLC, 330 F.3d 111, 123 (2d Cir. 2003)). It is appropriate to grant a motion for reconsideration only

if the movant points to “an intervening change in controlling law, the availability of new evidence,

or the need to correct a clear error or prevent manifest injustice.” Id. at 376 (quoting Doe v. New

York City Dep’t of Social Servs., 709 F.2d 782, 789 (2d Cir. 1983)). “Reconsideration . . . is an

‘extraordinary remedy to be employed sparingly in the interests of finality and conservation of

scarce judicial resources.’” RST (2005) Inc. v. Research in Motion Ltd., 597 F. Supp. 2d 362, 365

(S.D.N.Y. 2009) (quoting In re Health Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 2d 613, 614

(S.D.N.Y. 2000)); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (noting

that the “[t]he standard for granting [a reconsideration] motion is strict . . . .”).

Plaintiff’s submission fails under this standard; it points to no controlling law or data that

was overlooked, no intervening change in controlling law, no new evidence, and does not explain

the need to correct clear error or prevent manifest injustice. (See generally Mot.). Rather, the

filing—to the extent its roughly twelve sentences concern reconsideration as opposed to the request

under Federal Rule of Civil Procedure 17—seeks simply “to relitigate an issue already decided.”

Henderson, 502 F. Supp. 2d at 376 (quoting Shrader, 70 F.3d at 257). At most, Plaintiff argues

that the Court erred in denying his request to have Goldblatt represent him without accepting

Goldblatt’s proposed amicus curiae brief. (Mot. ¶¶ 2-4). This is not a reason to grant Plaintiff’s

motion for the extraordinary relief of reconsideration.1 This request is, accordingly, denied.

As for the second issue, Plaintiff requests that the Court appoint Goldblatt as his “next

friend” under Federal Rule of Civil Procedure 17(c). (Mot. ¶¶ 4-7). “‘Next friend’ standing is a

procedural mechanism by which a lawsuit is prosecuted or defended by someone other than the

real party in interest.” Gudavadze v. Kay, 556 F. Supp. 2d 299, 301 n.2 (S.D.N.Y. 2008) (quoting

Adem v. Bush, 425 F. Supp. 2d 7, 11 n.6 (D.D.C. 2006)). Rule 17(c)(2) provides, in full:

A minor or an incompetent person who does not have a duly

appointed representative may sue by a next friend or by a guardian

1 It bears noting that the Court has “broad discretion” in determining whether to permit an individual to

appear as an amicus curiae in a particular case. Picard v. Greiff, 797 F. Supp. 2d 451, 452 (S.D.N.Y. 2011)

(citing United States v. Ahmed, 788 F. Supp. 196, 198 n.1 (S.D.N.Y. 1992)). Moreover, Goldblatt—an

individual Plaintiff has retained—did not offer a point of view unavailable from the parties and, instead of

being a “friend of the court,” sought to advocate for one side. See, e.g., S.E.C. v. Bear, Stearns & Co. Inc.,

No. 03-CV-2937, 2003 WL 22000340, at *5-6 (S.D.N.Y. Aug. 25, 2003); United States v. El-Gabrowny,

844 F. Supp. 955, 957 n.1 (S.D.N.Y. 1994); Ahmed, 788 F. Supp. at 198 n.1; United States v. Gotti, 755 F.

Supp. 1157, 1159 (E.D.N.Y. 1991). In any event, even if the Court considered the brief—which was filed

without leave (Doc. 84-1; see also Doc. 87; Doc. 90)—it would not change the Court’s conclusion.

ad litem. The court must appoint a guardian ad litem—or issue

another appropriate order—to protect a minor or incompetent person

who is unrepresented in an action.

According to the Second Circuit, “[w]hat the rule undoubtedly contemplates is that form

of mental deficiency which . . . affects the person’s practical ability to manage his or her own

affairs.” Perri v. City of New York, 350 F. App’x 489, 490 (2d Cir. 2009) (quoting Hudnall v.

Sellner, 800 F.2d 377, 385 (4th Cir. 1986)). The Court’s “duty to appoint a guardian ad litem or

make such order as it deems proper[] is triggered by actual documentation or testimony of mental

incompetency.” /d. at 491 (internal citations and quotation marks omitted). “Such documentation

may consist of a judgment from a court of record, or verifiable evidence from a mental health

professional demonstrating that [the party is] being treated for mental illness of the type that would

render [him] legally incompetent.” Cannon v. Port Auth. of New York & New Jersey, No. 15-CV-

4579, 2020 WL 6290665, at *2 (S.D.N.Y. Oct. 27, 2020) (alterations in original, internal citations

and quotation marks omitted); see also Lewis v. Newburgh Hous. Auth., 692 F. App’x 673, 674

(2d Cir. 2017) (noting that the duty to appoint a representative exists only with “actual

documentation or testimony of the pro se litigant’s mental incompetency” (internal quotation

marks omitted)); Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003).

Here, Plaintiff offers no evidence, aside from conclusory allegations, to support the idea

that he—who has litigated this matter through motion practice and into discovery—is unable to

manage his own affairs. This request is denied as well.

SO ORDERED:

Dated: White Plains, New York

May 19, 2021 | f /

PHILIP M. HALPERN

United States District Judge