Opinion
No. 01 Civ. 6125 (RWS).
March 10, 2005
AMENDED OPINION ORDER
Pursuant to Local Civil Rule 6.3, plaintiffs Debbie Faucher, Barbara Ransom-Price, Alfonso Williams, Franklin Sims, Derrick Reddick, Elesha Smalls, Ricardo J. Bermudez, William Kareem, Diane Jackson, and Vidal Velazquez (the "Faucher plaintiffs") have moved for reconsideration of the Court's determination that May 21, 2002 was the first date on which Consents To Be Party Plaintiffs ("opt-in forms") were filed with the Clerk of Court for the Southern District of New York (the "clerk of court") in connection with this case. See El v. Potter, No. 01 Civ. 6125 (RWS), 2004 WL 2793166, at *4 (S.D.N.Y. Dec. 6, 2004) ("the Opinion"). In the alternative, the Faucher plaintiffs have moved for amendment of the Civil Docket for the U.S. District Court for the Southern District of New York (the "docket") to indicate that opt-in forms were filed in connection with this case on April 22, 2002. For the reasons set forth below, the motion is denied. Furthermore, the opinion is amended to correct certain de minimis errors identified by the Faucher plaintiffs and to clarify that prior to February 25, 2004, all plaintiffs were represented by the firm of Lewis, Clifton Nikolaidis, P.C.
The Faucher plaintiffs' motion was filed on December 17, 2004. Upon briefing by the parties, it was marked fully submitted without oral argument on January 26, 2005.
1. No Basis For Reconsideration Under Local Civil Rule 6.3
Local Civil Rule 6.3 provides, in pertinent part, as follows:
A notice of motion for reconsideration or reargument of a court order determining a motion shall be served within ten (10) days after the entry of the court's determination of the original motion, or in the case of a court order resulting in a judgment, within ten (10) days after the entry of the judgment. There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked. . . .
Local Civ. R. 6.3 (emphasis in original). It is well established that pursuant to Local Civil Rule 6.3, "[reconsideration] is appropriate only where the Court has `overlooked controlling decisions or factual matters that were put before it on the underlying motion'" Yurman Design Inc. v. Chaindom Enter., Inc., No. 99 Civ. 9307 (JFK), 2000 WL 217480, at *1 (S.D.N.Y. 2000) (quoting Davis v. The Gap, Inc., 186 F.R.D. 322, 323 (S.D.N.Y. 1999)).
In this motion, the Faucher plaintiffs make an assertion of fact that was considered and rejected in the Opinion — i.e., that on April 22, 2002, plaintiffs' counsel filed approximately 3,000 opt-in forms with the clerk of court. Based on a review of all relevant materials in the record — i.e., (1) the relevant portion of the docket for this case, (2) an April 22, 2002 letter from attorney Louie Nikolaidis ("Nikolaidis") to the clerk of court (the "Nikolaidis letter") (See Stampp Decl. Ex. A), and (3) the declaration of Nikolaidis sworn to April 5, 2004 (the "Nikolaidis declaration") (See Stampp Decl. Ex. Q) — the Court concluded in the Opinion that:
For statute of limitations purposes, this action began for some number of the plaintiffs on May 21, 2002, when the first consents were filed and docketed with the court. The Plaintiffs have claimed that the parties agreed that the consents would be "deemed filed" on April 22, 2002, when Plaintiffs initially attempted to file them and were turned away by the court clerk. The Postal Service denies reaching any such agreement; the court docket reflects that the first consent form was filed on May 21, 2002. The Plaintiffs have not sought to have this alleged docket sheet error corrected and any agreement between counsel to alter the court clerk's filing requirements would have needed the Court's approval to be effective. Cf. In re Soter, 31 B.R. 986, 990 (D. Vt. 1983) ([stating that] court rules and time requirements cannot be "altered at the parties' will"). El v. Potter, 2004 WL 2793166, at *9. The Faucher plaintiffs have failed to demonstrate that the Court, in arriving at the above-described conclusion, overlooked any factual matter or controlling authority that were put before it in connection with the underlying motion. Therefore, reconsideration of the Opinion is not warranted.2. No Basis for Amendment of the Civil Docket
In the alternative, pursuant to Fed.R.Civ.P. 79(a), the Faucher plaintiffs argue that the docket should be amended to reflect the alleged filing of opt-in forms on April 22, 2002.
The Faucher plaintiffs state that:
On April 22, 2002, plaintiff's counsel filed approximately 3000 [Opt-In Forms] with the [clerk of the court]. The Opt-In Forms were physically presented to the Clerk at his office at 500 Pearl Street, New York, New York along with a certificate of service indicating that copies of the Opt-In forms had been served. . . .
Because of the number of Opt-In forms, the Clerk requested that plaintiff's counsel retain custody of the forms. The Clerk did not indicate that the forms had not been properly filed. Plaintiff's counsel did not retrieve the forms until after he first raised the issue of the docketing of the Opt-In forms with opposing counsel and subsequently with opposing counsel and the court at a June 11, 2002 court conference.
Thereafter, counsel retrieved the Opt-In forms but expected that his cover letter and certificate of service would be entered on the Docket Sheet to accurately indicate the date of filing. The Opt-In forms were not subsequently filed again with the Clerk. (Pl.'s Mem. Supp. Mot. Recons. at 2; see also Nikolaidis Decl. ¶¶ 2-5; Nikolaidis letter.)
At best, the Faucher plaintiffs' submission establishes that opt-in forms were submitted on April 22, 2002 and that the clerk of court, for some reason, refused to take possession of these forms. However, the Faucher plaintiffs have failed to establish that the April 22, 2002 submission complied with Local Civil Rule 11.1 and all other relevant procedural requirements, and that the rejection of the submission by the clerk of court was, therefore, in error. In the absence of such a showing, no docket amendment is warranted.
Local Civil Rule 11.1 provides as follows:
(a) Every pleading, written motion, and other paper must
(1) be plainly written, typed, printed, or copied without erasures or interlineations which materially deface it,
(2) bear the docket number and the initials of the judge and any magistrate judge before whom the action or proceeding is pending, and (3) have the name of each person signing it clearly printed or typed directly below the signature.
(b) Every pleading, written motion, and other paper that is signed by an attorney must show directly after the typed name of the attorney (1) the initials of the attorney's first and last name, and (2) the last four digits of the attorney's social security number, or any other four-digit number registered by the attorney with the clerk of the court.
Furthermore, counsel to the Faucher plaintiffs has not provided an adequate explanation for his failure to seek this amendment prior to entry of the Opinion on December 17, 2004. The proffered explanation — that counsel "first learned that the clerk did not enter the original filing date on the docket sheet when I received a copy of the USPS' summary judgment papers." (Nikolaidis Decl. ¶ 5.) — is unavailing. First, it is axiomatic that every party has an ongoing obligation to monitor the docket and to remain informed as to its contents. See United States ex rel. McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir. 2001); Bortugno v. Metro-North Commuter R.R., 905 F.2d 674, 676 (2d Cir. 1990); Greenberg v. Chrust, No. 01 Civ. 10080 (RWS), 2004 WL 585823, at *4 (S.D.N.Y. Mar. 25, 2004). Second, even after the defendant had moved for summary judgment, the Faucher plaintiffs still could have moved for amendment of the docket upon an appropriate showing that the opt-in forms were properly submitted on April 22, 2002. No such motion was made during the pendency of defendant's summary judgment motion.
Based on the foregoing, the motion to amend the docket is denied.
3. Clarification of the Opinion
The Faucher plaintiffs have pointed out that the second full paragraph on page 10 of the hardcopy version of the Opinion signed by the Court on December 6, 2004 contains two de mimimis misstatements of the facts in the record of this case. First, the opt-in forms submitted on April 22, 2002 were not subsequently docketed on May 21, 2002. Second, only one set of opt-in forms were submitted on April 22, 2002. Based on the foregoing, the second sentence of the second full paragraph on page 10 is deleted and the following sentence is substituted in its place: "The opt-in consent forms submitted to the Court on April 22, 2002 were rejected by the clerk of the court." Furthermore, in the third sentence of this same paragraph, the phrase "April 22, 2002" is deleted and the phrase "May 21, 2002" is substituted in its place.
Neither of these de minimis misstatements, either individually or in combination, warrants reconsideration of the portion of the Opinion that is the subject of the Faucher plaintiff's motion.
Finally, by letter dated December 23, 2004, Maureen M. Stampp ("Stampp") of the law firm of Vladeck, Waldman, Elias Engelhard, P.C., counsel to plaintiffs Lawrence Dockery, James Perez, Shirley Thompson, Gary Corona and Arbitto El, has requested the following amendments to the Opinion: (1) that the title page be amended to reflect the fact that the Faucher plaintiffs are represented by Nikolaidis and (2) that it be made clear that neither Stampp nor Vladek, Waldman, Elias Engelhard, P.C. appeared on behalf of any plaintiffs in this case prior to February 25, 2004. According to Stampp, this clarification is sought because the Opinion states that the plaintiffs improperly sent out class notices and opt-in consent forms without Court approval.
In light of the foregoing, the title page of the Opinion is amended to reflect the fact that Louie Nikolaidis of the law firm of Lewis, Clifton Nikolaidis, P.C. appeared on behalf of the Faucher plaintiffs in connection with this motion. Furthermore, the following footnote, which shall be numbered "3.5", is added after the first sentence of the second full paragraph on page 27 of the hardcopy version of the Opinion:
During the time period at issue, all Plaintiffs were represented by the law firm of Lewis, Clifton Nikolaidis, P.C. The law firm of Vladek, Waldman, Elias Engelhard, P.C. first appeared in this case on February 25, 2004 on behalf of plaintiffs Arbitto El, Gary Corona, Shirley Thompson, James Perez and Lawrence Dockery.
It is so ordered.