Opinion
02 Civ. 8552 (RWS).
November 15, 2004
LINDA OLLE, New York, NY, Plaintiff Pro Se.
FRIEDMAN KAPLAN SEILER ADELMAN, New York, NY, Attorneys for Defendants, ROBERT D. KAPLAN, ESQ., EMILY A. STUBBS, ESQ., Of Counsel.
OPINION
Plaintiff Linda Olle ("Olle"), proceeding pro se, has moved for reconsideration of the order and opinion of this Court dismissing Olle's amended complaint against defendants Columbia University ("Columbia" or the "University"), Michael Janeway ("Janeway"), and Andras Szanto ("Szanto") (collectively, "Defendants"). For the reasons set forth below, Olle's motion is denied.
Prior Proceedings
Olle commenced this sex and age discrimination action on October 25, 2002, and filed an amended complaint on April 17, 2003. Discovery proceeded, Defendants moved for summary judgment, and in an opinion and order entered on August 23, 2004 (familiarity with which is assumed) Defendants' motion was granted in part and the action dismissed. See Olle v. Columbia Univ., 332 F. Supp. 2d 599 (S.D.N.Y. 2004) (the "Opinion"). Judgment was entered pursuant to the terms of the Opinion on August 24, 2004.
Olle thereafter moved for reconsideration of the Opinion pursuant to Rule 60 of the Federal Rules of Civil Procedure, which motion was filed on September 1, 2004. Defendants opposed Olle's motion and the matter was deemed fully submitted on October 13, 2004. In the interim, Olle filed a notice of appeal on September 15, 2004.
Discussion
Although Olle has sought reconsideration pursuant to Rule 60, Fed.R.Civ.P., it is the law of this circuit that a motion to reconsider "is to be treated as a Rule 59(e) motion if filed within 10 days of entry of the challenged order and as a Rule 60(b) motion if filed thereafter." United States v. Clark, 984 F.2d 31, 32 (2d Cir. 1993); see also Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 136-37 (2d Cir. 2000) ("We have long held that a postjudgment motion made within 10 days after entry of judgment, if it involves reconsideration of matters properly encompassed in a decision on the merits, is to be deemed a motion to alter or amend the judgment pursuant to Rule 59(e), thereby extending the time of the parties to appeal."); Lichtenberg v. Besicorp Group Inc., 204 F.3d 397, 401 (2d Cir. 2000) ("A postjudgment motion requesting alteration or amendment of the judgment but denominated a motion under a Rule other than Civil Rule 59(e) is generally treated as having been made under Rule 59(e), thereby extending the time to appeal, if the motion was filed within the 10-day period allowed for a Rule 59(e) motion."); McCowan v. Sears, Roebuck Co., 908 F.2d 1099, 1103 (2d Cir. 1990) ("[M]ost substantive motions brought within ten days of the entry of judgment are functionally motions under Rule 59(e), regardless of their label or whether relief might also have been obtained under another provision"). Olle filed her motion within ten days of entry of judgment and of the Opinion itself and seeks reconsideration on the grounds that "[c]ertain facts have been misapprehended" and "genuine issues of material fact exist." (Pl. Motion at 1.) Accordingly, her motion for reconsideration will be treated as if brought pursuant to Rule 59(e), Fed.R.Civ.P.
The filing of a notice of appeal would ordinarily oust a district court of jurisdiction as to those aspects of the case involved in the appeal. See, e.g., United States v. Camacho, 302 F.3d 35, 36 (2d Cir. 2002). However, a Rule 59(e) motion for reconsideration has the effect of holding an appeal in abeyance. See Fed.R.App.P. 4(a)(4)(B)(i) (providing that a notice of appeal does not become effective until after any motion made pursuant to Rule 59 and other enumerated rules has been decided); Oates v. City of New York, No. 02 Civ. 5960 (GEL), 2004 WL 1752832, at *1 n. 1 (S.D.N.Y. Aug. 4, 2004). Thus, notwithstanding the filing of a notice of appeal on September 15, 2004, this Court has retained jurisdiction to consider Olle's motion for reconsideration.
On a motion made pursuant to Rule 59(e), "`the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision.'" Word v. Croce, No. 01 Civ. 9614 (LTS), 2004 WL 434038, at *2 (S.D.N.Y. Mar. 9, 2004) (quoting Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003)); see also Williams v. New York City Dep't of Corr., 219 F.R.D. 78, 83 (S.D.N.Y. 2003). Alternatively, "`reconsideration may be granted to correct clear error, prevent manifest injustice or review the court's decision in light of the availability of new evidence.'" Word, 2004 WL 434038, at *2 (quoting Parrish, 253 F. Supp. 2d at 715).
Rule 59(e) is not an appropriate vehicle for a party dissatisfied with a court's ruling to secure a rehearing on the merits with respect to issues already decided, see USA Certified Merchants, LLC v. Koebel, 273 F. Supp. 2d 501, 503 (S.D.N.Y. 2003); Parrish, 253 F. Supp. 2d at 715; Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999), or to advance "`new facts, issues or arguments not previously presented to the court.'" Williams, 219 F.R.D. at 83 (quoting Wechsler v. Hunt Health Systems, Ltd., 186 F. Supp. 2d 402, 410 (S.D.N.Y. 2002)). In other words, "[a] party seeking reconsideration `is not supposed 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 rulings.'" Wechsler, 186 F. Supp. 2d at 410 (quoting Polsby v. St. Martin's Press, Inc., No. 97 Civ. 690 (MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)). Thus, Rule 59(e) should be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court," Williams, 219 F.R.D. at 83, and "to prevent the rule from being used as a substitute for appealing a final judgment." USA Certified Merchants, 273 F. Supp. 2d at 503. "Reconsideration of a court's previous order is an `extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'" Montanile v. Nat'l Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002) (quoting In re Health Mgmt. Svs. Inc. Secs. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)); see also USA Certified Merchants, 273 F. Supp. 2d at 503.
Construing Olle's motion papers to raise the strongest argument that they suggest, in light of her pro se status, see Opinion, 332 F. Supp. 2d at 607, there is, nonetheless, no basis here for reconsidering the grant of summary judgment to Defendants and the dismissal of this action. Olle has cited no controlling authority misconstrued by this Court, nor has she pointed to any factual matters put before this Court on the underlying motion that she asserts were overlooked by the Court and that might reasonably be expected to alter the decision reached in the Opinion. Rather, she repeats many of the arguments that she raised in opposition to the underlying motion and that were dealt with in the Opinion; disputes certain conclusions drawn in the Opinion and the interpretation of the record evidence therein without providing any basis to reconsider those conclusions and interpretations; questions and denies elements of the record itself; and improperly raises new allegations of fact.
Olle argues, for instance, that it was incorrectly concluded in the Opinion that at her deposition she had withdrawn her claim that she has been discriminated against on the basis of her sex and age with respect to her wages. See id. at 604, 618 n. 8. Olle's argument is contradicted by her deposition testimony. Her assertion that it was "certainly not true" (Pl. Motion at 2) that she acknowledged at her deposition that Janeway answered many of her questions fully in e-mails, see Opinion, 332 F. Supp. 2d at 613, is similarly refuted by the record.
Olle also asserts that the anonymous responses to a survey conducted of fellows at the National Arts Journalism Program ("NAJP"), where Olle was the Associate Director, should have been admitted, as they contained detailed criticism of NAJP and its directors, Janeway and Szanto, and might have, according to Olle, contained her name. Had the surveys been admitted, Olle contends, summary judgment would not have been granted in Defendants' favor.
As stated in the Opinion these surveys are both inadmissible and irrelevant. See id. at 614 ("The survey responses do not mention Olle, say nothing about the treatment of any employee, and do not report either sexism or ageism in NAJP's treatment of its employees.") (footnote omitted). In other words, these responses have no legally cognizable weight with regard to Olle's claims for the multiple reasons stated in the Opinion.See id. at 614-15; see also Crumpacker v. Kansas Dep't of Human Resources, No. 00 Civ. 4044 (RDR), 2004 WL 1846146, at *4 (D. Kan. June 10, 2004) (concluding that the court was "at a loss to see how" anonymous responses to a survey could "possibly be admissible"); Gibbs v. G.D. Searle, Co., No. 98 Civ. 2538, 2000 WL 960744, at *28 (N.D. Ill. July 10, 2000) (noting that a survey of employees regarding diversity issues, "[e]ven if admissible under a hearsay exception, say for example as a mental impression," had little relevance to the disposition of summary judgment motions on discrimination claims, since "the truth of this survey is only that anonymous, self-selected employees . . . felt that they were being discriminated against" and the survey "provides no insight into the intentions of the decision makers"). Olle has offered no basis to deviate from that conclusion. In particular, although the absence of Olle's name from the survey responses was a factor in concluding that the surveys lacked relevance, it was not, as she suggests, the sole basis for that conclusion and the absence of her name is, in any event, immaterial to the determination of the survey responses' inadmissibility.
Likewise, Olle's unsubstantiated allegations, also raised in her underlying opposition to Defendants' motion, that the declarations submitted by Defendants could be proven fraudulent at trial offer no basis for reconsideration and her speculation that "[c]ounsel for the defense supplied an identical wording to each of the people involved" (Pl. Motion at 9) suggests no impropriety or any basis on which the declarations might have been stricken or disregarded. See generally Fed.R.Civ.P. 56(e). Olle's insistence that, had she sought declarations from the same people, "they would have been allowed to express their concerns in their own words" (Pl. Motion at 8) is of no consequence; "`speculation or conjecture will not avail a party resisting summary judgment,'" Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) (quoting Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996)), nor will similar speculation avail Olle here.
Although Olle's acknowledged "timidity in seeking depositions or declarations from past fellows of the NAJP" (Pl. Motion at 9) is understandable, it does not excuse her failure to offer such testimony in opposition to the underlying motion. Similarly, neither Olle's "regret" that she has been "unable to satisfy law with the correct proof," nor her belief that "a trial would be necessary" to provide adequate proof (id. at 5), offers any basis for reconsidering the conclusions previously reached or otherwise relieving Olle from the judgment expressed in the Opinion. It is precisely to forestall such regret that pro se litigants opposing summary judgment motions in this district are given notice of the evidentiary requirements for opposing such motions and of the consequences of the failure to submit affidavits and documentary evidence, including the dismissal of their claims in the defendant's favor without a trial. See generally Local Civ. R. 56.2.
Olle's remaining contentions and allegations are inadequate to warrant reconsideration.
Conclusion
As the grounds for reconsideration have not been met, Olle's motion for reconsideration is denied.
It is so ordered.