Opinion
No. 04 Civ. 3638 (TPG).
August 22, 2005
OPINION
Defendant Alberto Betancourt has moved for reconsideration or vacating of this court's October 7 and October 29, 2004 orders pursuant to Fed.R.Civ.P. 59(e) and Local Rule 6.3, as well as for an order certifying an interlocutory appeal and a stay of proceedings in this matter pending an interlocutory appeal or petition for mandamus before the Second Circuit Court of Appeals. Plaintiff Columbia University opposes these motions.
Defendant's motion for reconsideration or vacating of the earlier orders is denied. Defendant's motion for certification of an interlocutory appeal and a stay is denied as moot.
PROCEDURAL HISTORY
Plaintiff Columbia University brought this action against defendant Alberto Betancourt in the Civil Court of the City of New York alleging that defendant owes plaintiff unpaid tuition. On May 12, 2004 defendant removed the action to this federal district court. Plaintiff promptly moved for an order remanding the action to the state court. Plaintiff also sought an award of costs and expenses, including attorney fees, incurred as a result of the removal.
By an order dated October 7, 2004 this court granted both of plaintiff's motions, and ordered plaintiff to submit an application regarding the amount of costs and expenses. The fees application will not be addressed in this opinion. The order dated October 29, 2004 put into effect the October 7 order regarding the remand.
Defendant promptly appealed the orders. On October 27 defendant noticed his appeal of the October 7 order, and on December 1 defendant noticed his appeal of the October 29 order.
Also, on November 22, 2004 defendant moved for reargument, reconsideration, or vacating of the October 7 and October 29 orders.
Finally, defendant filed a petition for mandamus in the Court of Appeals on November 12, seeking an order disqualifying and removing Judge Griesa from both this action and another action involving Betancourt and Columbia University.
On November 15 defendant moved in the District Court for an order certifying an interlocutory appeal and for a stay of this action pending the Court of Appeals' resolution of the petition for mandamus.
THE DECISIONS OF THE COURT OF APPEALS
On April 11, 2005 the Court of Appeals dismissed defendant's appeals of the October 7 and October 29 orders "because they lack an arguable basis in fact or law." The Trustees of Columbia University v. Betancourt, No. 04-6362-cv (2d Cir. Apr. 11, 2005). The mandate issued on June 1, 2005.
Also on April 11, the Court of Appeals denied defendant's motion for mandamus because petitioners failed to demonstrate a clear abuse of discretion warranting such relief. In re: Ada Rodriguez, et al., No. 04-5991-op (2d Cir. Apr. 11, 2005). The mandate issued on April 11, 2005.
DISCUSSION
Jurisdiction follows the mandate. As the Court of Appeals has made clear, the effect of the mandate "is to bring the proceedings in a case on appeal in our Court to a close and to remove it from the jurisdiction of this Court, returning it to the forum from whence it came." Ostrer v. United States, 584 F.2d 594, 598 (2d Cir. 1978). Since the Court of Appeals has issued mandates disposing of each of defendant's appellate applications, jurisdiction over this action now lies entirely with this court.
Local Rule 6.3 requires that any motion for reconsideration or reargument shall be served within 10 days after the docketing of the court's determination of the original motion. Only the October 7 order is challengeable under Local Rule 6.3, since the October 29 order does not decide any motion. Rather, the October 29 order merely gives effect to the decision encapsulated in the court's October 7 order — in this sense it is more appropriately a judgment challengeable pursuant to Rule 59(e). The October 7 order was docketed on October 13, 2004. Pursuant to Local Rule 6.3, defendant had until October 27, 2004 to file a motion for reconsideration. Defendant's motion under Local Rule 6.3 is untimely, since it was not filed until November 22.
Rule 59(e) requires that any motion to alter or amend a judgment shall be filed no later than 10 days after entry of judgment. Although defendant challenges both the October 7 and October 29 orders, only the October 29 order is a judgment challengeable by a Rule 59(e) motion. The October 29 order was docketed on November 5, 2004. Pursuant to Rule 6(a), defendant had until November 22, 2004 to file the motion. Defendant's Rule 59(e) motion was timely filed, since it was filed on November 22.
To prevail on a motion for reconsideration under Rule 59(e), defendant must present facts or controlling law that the court overlooked which may have materially influenced its earlier decision. Griffin Industries, Inc. v. Petrojam, Ltd., 72 F.Supp.2d 365, 368 (S.D.N.Y. 1999). The moving party must bear a heavy burden, because such motions are not intended to be vehicles for "presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). Defendant has not made such a showing.
Defendant's motion for an order certifying an interlocutory appeal and for a stay pending the Court of Appeals consideration of his petition for mandamus is denied as moot. The Court of Appeals has considered the petition. The Court of Appeals issued its mandate denying the petition on April 11, 2005. Therefore, there is no longer any need for a certification or for a stay.
CONCLUSION
Defendant's motions are denied.
SO ORDERED.