holding a motion for reconsideration may be denied solely for being untimely
How later courts described this case
- holding a motion for reconsideration may be denied solely for being untimely
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MISAEL CORDERO,
Civil Action No. 20-5654(PGS)(RLS)
Plaintiff, :
v. : | MEMORANDUM AND ORDER
AMY EMRICH,, et al.,
Defendants. :
This matter is opened to the Court on pro se Plaintiff Misael Cordero’s
(“Plaintiff”) Motion to have his Fourteenth Amendment and Eighth Amendment
Claims Reinstated, which the Court construes a Motion for Reconsideration of
Plaintiff's dismissed claims. (ECF No. 22.) Defendants Amy Emrich and Tina
Cortes (collectively “Defendants”) filed a response in opposition (ECF No. 30) and
Plaintiff filed a reply (ECF No. 31).
On May 7, 2020, Plaintiff filed a civil rights complaint pursuant to 28 U.S.C.
§ 1983. (ECF No. 1.) Plaintiff named two Defendants in his Complaint: (1) Amy
Emrich, Assistant Superintendent of the New Jersey State Prison (“NJSP”); and (2)
Tina Cortes, Hearing Officer at NJSP. (See ECF No. 1.) The Complaint raised three
claims. First, Plaintiff claimed Defendants failed to protect him by subjecting him to
a double-lock cell due to his transfer between prisons rather than the single-lock cell
he had while at NJSP in violation of Plaintiff's Eighth Amendment Rights. Second,
Plaintiff alleged Defendant Emrich retaliated against him by transferring him to
another prison and that Defendant Cortes retaliated against him by placing him in
administrative segregation in violation of Plaintiff's First Amendment rights.
Finally, Plaintiff asserts Defendant Cortes violated his due process rights by not
permitting witnesses at his disciplinary hearing in violation of Plaintiff's Fourteenth
Amendment rights. (See generally ECF No. 1.)
On January 4, 2022, following the granting of Plaintiff's application to
proceed in forma pauperis, the Court screened Plaintiff's 42 U.S.C. § 1983 civil
rights complaint (“Complaint”) (ECF No. 1) pursuant to 28 U.S.C. § 1915(e)(2)(B).
(ECF No. 6.) The Court dismissed Plaintiff's Eighth Amendment Failure to Protect
claim and Fourteenth Amendment Due Process claim, finding Plaintiff had failed to
state a claim upon which relief could be granted. (See id.) The Court proceeded
Plaintiff's First Amendment Retaliation claims against Defendants. (/d.)
On September 19, 2022, Plaintiff filed the instant motion for reconsideration,
requesting the Court reconsider the dismissal of his Eighth and Fourteenth
Amendment claims and reinstate the claims. (ECF No. 22.)
“Motions for reconsideration are not expressly recognized in the Federal
Rules of Civil Procedure.” Dubler v. Hangsterfer’s Labs., No. 09-5144, 2012 WL
1332569 at *3 (D.N.J. Apr. 17, 2012) (citing United States v. Compaction Sys. Corp.,
88 F.Supp.2d 339, 345 (D.N.J.1999)). “Generally, a motion for reconsideration is
treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure
59(e), or as a motion for relief from judgment or order under Federal Rule of Civil
Procedure 60(b).” Jd. (citing Compaction Sys. Corp., 88 F.Supp.2d at 345). In the
District of New Jersey, motions for reconsideration are governed by Local Civil Rule
7.1(i).
Under Local Civil Rule 7.1(i), motions for reconsideration are required to be
filed within fourteen (14) days after entry of the order or judgment. Plaintiff filed his
motion on September 19, 2022, over eight months after the Court’s Memorandum
and Order dismissing Plaintiff's Eighth and Fourteenth Amendment claims. (ECF
Nos. 6 and 22.) Plaintiff's motion for reconsideration is untimely. See Gaines v.
Busnardo, No. 13-6566, 2015 WL 5771233 at “6 (D.N.J. September 29, 2015)
(denying Defendants’ motion for consideration, finding it two months untimely); see
also Wright v. Camden City Police Dep’t, 2007 WL 1582975, *1(D.N.J. May 31,
2007) (finding Plaintiff's motion for reconsideration untimely under Local Civil
Rule 7.1(i)); see also Morris v. Siemens Components, Inc., 938 F.Supp. 277, 278
(D.N.J. September 20, 1996) (holding a motion for reconsideration may be denied
solely for being untimely). Plaintiff has served his Complaint upon Defendants and
Defendants have filed their answer to Plaintiff's Complaint. (ECF Nos. 9, 10, and
12.) Plaintiff has set forth no facts justifying his delay in filing his motion for
3 □
reconsideration, therefore this Court will deny the motion for reconsideration as
untimely!
OD asm the
IT IS on this J day of Nevember, 2022
ORDERED that Plaintiff's motion for reconsideration (ECF No. 22) of this
Court’s January 4, 2022 Memorandum and Order dismissing Plaintiff’s Complaint
in part is DENIED; and it is further
ORDERED that the Clerk of the Court shall send a copy of this Memorandum
Order to Plaintiff by regular mail.
□□□
PETER G. SHERIDAN
United States District Judge
'In Plaintiff's reply, he appears to argue that his motion for reconsideration is timely
because the Parole Board did not respond to a letter he sent to the Board regarding
credit computation until September 1, 2022. (See ECF No. 31.) A letter received
from the Parole Board that Plaintiff is presumably is asserting is new evidence, does
not change that under Local Civil Rule 7.1(i), any motion for reconsideration of this
Court’s January 4, 2022 Memorandum and Order was required to be filed within
fourteen (14) days after entry of that Order.