Opinion
94-CV-0026
December 21, 2000
GEORGE A. MAYES, Warrensburg, NY, Plaintiff Pro Se.
RICHARD A. KOHN, ESQ., Albany, NY, THUILLEZ FORD GOLD JOHNSON Attorneys for Defendants.
ORDER
Familiarity with the long history of the litigation between pro se plaintiff George Mayes and Local 106 of the International Union of Operating Engineers, including its various administrators and members, is assumed. By Memorandum-Decision and Order dated October 4, 2000, this court granted summary judgment in favor of defendants on all existing claims except for plaintiff's 29 U.S.C. § 431(c) cause of action. Holding judgment in abeyance, the court stated that defendants' motion would be granted as to the remaining § 431(c) claim if defendants permitted plaintiff to inspect certain documents he requested pursuant to that section within 60 days. If plaintiff inspected the various documents, defendants were directed to submit to the court an affidavit of compliance. Upon receipt of the affidavit, the court indicated it would enter judgment dismissing the complaint.
Pursuant to Local Rule 7.1(g), plaintiff now moves this court to reconsider its October 4, 2000 decision. Plaintiff's motion, however, is untimely. Local Rule 7.1(g) states that "[m]otions for reconsideration or reargument, unless governed by Fed.R.Civ.P. 60, must be served not later than ten calendar days after entry of the challenged judgment, order or decree." L.R. 7.1(g). Here, the court's decision on defendants' summary judgment motion was filed on October 4, 2000. Excluding intermediate Saturdays, Sundays and legal holidays pursuant to Fed.R.Civ.P. 6, plaintiff had until October 19, 2000 to timely file his reconsideration motion. Having filed his motion on October 23, 2000, plaintiff failed to meet that deadline.
Fed.R.Civ.P. 60(b), which only applies to final judgments and orders, is not implicated here because the October 4, 2000 decision held judgment in abeyance pending the outcome of the § 431(c) claim. Thus, it was not a final judgment or order. See Makas v. New York State Dep't of Motor Vehicles, No. 97-CV-1892, 1998 WL 219588, *1, n 1 (N.D.N.Y. April 29, 1998).
The court notes that had the motion been timely filed, it would have been denied. A motion for reconsideration is appropriate only where the movant demonstrates that the court overlooked controlling decisions or factual matters that existed before it on the underlying motion. See Davis v. The Gap, Inc., 186 F.R.D. 322, 323-24 (S.D.N.Y. 1999). Here, plaintiff simply rehashes the numerous arguments made on the prior motion, and fails to convince the court that it overlooked any authority or facts in deciding that motion.
Additionally, plaintiff formally "objects" to defendants' November 7, 2000 affidavit of compliance submitted in accordance with the October 4, 2000 decision. Defendants' affidavit attests that plaintiff was permitted to inspect the various documents he requested pursuant to 29 U.S.C. § 431(c). Specifically, defendants affirm that plaintiff received copies of the monthly reporting forms submitted to the Engineers' Joint Benefit Fund, showing contributions of various Pension and Welfare Funds on behalf of Local 106 Officers and Employees for the 1991 calendar year (see Docket No. 79). Plaintiff argues that the above documents do not fully comply with this court's October 4, 2000 decision. After careful review of the defendants' affidavit, plaintiff's objections to the affidavit, and defendants' response to plaintiff's objections, the court concludes that plaintiff has received all the documentation he was entitled to under his § 431(c) claim.
Because defendants have satisfied the requirements of this court's October 4, 2000 decision, summary judgment is granted in favor of defendants on the § 431(c) cause of action. Defendants are thus entitled to judgment dismissing the complaint. Accordingly:
(1) The motion for reconsideration is DISMISSED;
(2) defendants' motion for summary judgment on the remaining 29 U.S.C. § 431(c) cause of action is GRANTED; and
(3) the Clerk of the Northern District is directed to enter judgment dismissing the complaint in its entirety.
IT IS SO ORDERED.