Opinion
03-CV-0586E(Sr).
January 10, 2005
MEMORANDUM AND ORDER
This decision may be cited in whole or in any part.
In an Order dated November 5, 2004 ("November 5th Order"), this Court dismissed this action and awarded defendants attorney's fees in the amount of $7,500 pursuant to 42 U.S.C. § 1988 ("section 1988") stemming from the assertion by Weiss of two (out of three) frivolous claims. Judgment was entered on November 10 and this case was closed. Weiss, however, filed a motion on November 16 to re-open the case, which will be construed as a motion for reconsideration made pursuant to Rule 59(e) of the Federal Rules of Civil Procedure ("FRCvP"). Weiss's motion for reconsideration was argued and submitted on December 17. Defendants filed an affidavit of costs on December 28 noting, inter alia, that they spent $10,349.50 in preparing the motions to dismiss. Weiss filed a response on December 30. For the reasons set forth below, Weiss's motion will be granted in part and denied in part.
Although Weiss stated that his motion for reconsideration was filed pursuant to FRCvP 59 and FRCvP 60 (no subsections were referenced), the Court of Appeals has noted that "where a post-judgment motion is timely filed and calls into question the correctness of that judgment it should be treated as a motion under Rule 59(e), however it may be formally styled." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982) (internal quotation marks and citation omitted); see also Jones v. Unum Life Ins. Co. of Am., 223 F.3d 130, 136-137 (2d Cir. 2000) ("Regardless of the label the movant places on her postjudgment motion * * * [w]e 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 [FRCvP] 59(e) * * *."). Consequently, this Court will construe Weiss's motion as made pursuant to FRCvP 59(e) because it was filed within ten days after entry of judgment in this case and addresses the merits of the November 5th Order.
Defendants filed a motion to dismiss the Complaint and a motion to dismiss the Amended Complaint. This Court's Order dated December 30, 2003 dismissed Weiss's section 1985(3) and 1988 claims ("December 30 Order").
The "standard for granting [a motion for reconsideration is strict], and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusions reached by the court." Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995). Weiss's motion for reconsideration will be denied because it merely reiterates arguments previously rejected by this Court and proffers no law or facts that this Court overlooked.
Shrader, at 257 ("[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided."); see also Weiss v. Union Cent. Life Ins. Co., 2003 WL 21068433, at *3 (2d Cir. 2003) ("A motion to amend a final judgment pursuant to [FRCvP] 59(e) * * * will generally not be granted unless the moving party can point to facts or controlling decisions overlooked by the court."); Rivera v. United States, 2000 WL 1072302, at *1 (2d Cir. 2000) (holding that FRCvP 59(e) "is to be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court") (citation omitted); DiPilato v. Village of Holley, 2004 WL 2646552, at *1 (W.D.N.Y. 2004) (denying motion for reconsideration where party raised the same arguments previously rejected by this Court).
This Court will nonetheless briefly address seriatim several of Weiss's contentions. First, Weiss stated that this Court denied his request for discovery pursuant to FRCvP 56(f) "without giving any reason." This Court, however, did provide a reason for denying Weiss's request for discovery — namely, the fact that "no amount of discovery would permit plaintiff to demonstrate that he has a right, sanctioned by federal law, to enter the Premises" (November 5th Order, at 7). Second, Weiss misconstrued the November 5th Order by suggesting that the award of attorney's fees was premised upon his litigation of his section 1983 claim or the summary judgment motion (Aff. of Arnold Weiss ¶ 6(D)). The November 5th Order made clear that the award of fees was premised solely upon Weiss's assertion of the frivolous section 1988 and section 1985(3) claims. Third, Weiss noted at oral argument that this Court had previously declined to award attorney's fees in a 2003 decision that dismissed a plaintiff's section 1985(3) and section 1988 claims and suggested that the November 5th Order was inconsistent with such decision. Weiss, however, failed to cite such decision and this Court could not locate such. Fourth, Weiss suggested that this Court exhibited religious bias in awarding attorney's fees against him. This Court was not motivated by any form of bias against Weiss in awarding attorney's fees for his assertion of frivolous claims.
Moreover, although not addressed in the November 5th Order, Weiss failed to make the requisite showing that additional discovery was required to oppose defendants' summary judgment motion. See Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir.) (setting forth the showing that must be made in a FRCvP 56(f) affidavit when a party resists a summary judgment motion by stating that additional discovery is necessary to respond), cert. denied, 540 U.S. 823 (2003).
To the extent that Weiss was referencing Juncewicz v. Patton, 2002 WL 31654957 (W.D.N.Y. 2002), such is distinguishable because it did not involve a section 1988 claim, which this Court found to be non-existent.
This is not the first time that Weiss has accused a judge in this district of bias against him. Person v. Gen. Motors Corp., 730 F. Supp. 516, 518-519 (W.D.N.Y. 1990) (denying Weiss's recusal motion, which suggested that Judge Curtin harbored "personal animosity toward him"). Nonetheless, this Court will not act upon defendants' suggestion that Weiss's allegation of religious bias is subject to disciplinary action. Defendants, however, may pursue this matter with the Attorney Grievance Committee if they see fit to do so.
This Court's decision to award attorney's fees to the defendants is especially appropriate in light of Weiss's past conduct in this district and the need to deter the repetition of such in the future. See, e.g., Multiform Dessicants, Inc. v. Medzam, Ltd., 1993 WL 85780, at *3 (W.D.N.Y. 1993) (Elfvin, J.) (holding Weiss and his client in civil contempt for "their failures to obey Judge Foschio's Orders directing production [of certain witnesses for depositions]" and awarding attorney's fees for the cost of the contempt motion); Greater Buffalo Press, Inc. v. Federal Reserve Bank of New York, 129 F.R.D. 462, 465-468 (W.D.N.Y. 1990) (Curtin, J.) (requiring Weiss to personally pay circa $16,000 in fees and sanctions and noting, inter alia, that: (1) "I will resist the temptation to comment at length upon a number of the allegations made by Mr. Weiss. Suffice it to say that he places emphasis upon particular events out of context while omitting other relevant material. Some facts are twisted, and other assertions are completely inaccurate."; (2) "[I]n this case and in others I have criticized Mr. Weiss for delays and for filing unnecessary, prolix, and repetitious motions * * *. Frankly, it is the opposing parties who have suffered by having to withstand barrages of these unnecessary and often delaying tactics. The filing of a [third] recusal motion in this case is a clear illustration of such behavior. Mr. Weiss's motion is disturbing and disruptive."; (3) Weiss resorted to "obstructive tactics"; (4) "a good part of the affidavits [submitted by Weiss] are immaterial, speculative, and threatening. * * * I further find that the true purpose of filing the motions [by Weiss] was to delay and harass."; (5) "In light of the history of this case, particularly the manner in which Mr. Weiss ignored the orders of the court by submitting unresponsive and, at times, frivolous responses * * *"; and (6) "[I]t is apparent that [Weiss] interpreted [the decision to not personally sanction him] as a license to continue submitting unresponsive and otherwise improper filings and to delay this case unnecessarily. In light of similar actions by Mr. Weiss in other cases, * * * [Mr. Weiss shall be personally responsible for the FRCvP 37 attorney's fees and the FRCvP 11 sanction] to make clear that conduct such as that displayed by Mr. Weiss in this case, which serves only to obstruct the just and efficient adjudication of cases, will neither be condoned nor ignored"), aff'd, 923 F.2d 843 (2d Cir. 1990), cert. denied sub nom. Weiss v. Federal Reserve Bank of New York, 500 U.S. 942 (1991); Person, supra note 7, at 519 (denying Weiss's request to have Judge Curtin recuse himself and noting that Weiss's "suggestion that the appeal in [ Markel v. Scovill Mfg. Co., 657 F. Supp. 1102 (W.D.N.Y. 1987)] contributed in any way to my decisions to step down as Chief Judge and to take senior status is so artificial that it does not merit a response"); Reger v. Horwitz, 1987 WL 16272, at *1 (W.D.N.Y. 1987) (Elfvin, J.) (denying Weiss's client's motion for reconsideration of the imposition of FRCvP 11 sanctions stemming from defendant's "removal without substantial justification and in contravention of an earlier directive of this Court").
See also In re Brosnahan, BK 02-14554 (Bankr. W.D.N.Y. June 14, 2004) (Tr. of hearing before Hon. Carl L. Bucki, who referred to a complaint filed by Weiss when stating: "I'm not sure that this complaint belongs anyplace"); In re Mikulec Indus., Inc., 1991 WL 100551, at *2 (W.D.N.Y. 1991) (Elfvin, J.) (noting that Weiss was "disorganized to a reprehensible degree" but declining to find that Weiss had acted in bad faith); In re Mikulec Indus., Inc., 1991 WL 173207, at *1-2 (W.D.N.Y. 1991) (Elfvin, J.) (noting that the United States "Trustee asserts that the debtor's attorney, Arnold Weiss, Esq., has wrongly blamed third parties — viz, the United States Postal Service, one of this Court's confidential law clerks and the Trustee's attorney, Guy A. VanBaalen, Esq. — for his failure to timely file the brief. * * * Mr. Weiss's continuing failure to abide by this Court's directives and rules compel dismissal of the debtor's appeal. Mr. Weiss is not an inexperienced attorney. He knows or should know that a filing deadline means just that — a date to file, not postmark. And he further knows that blaming all varieties of other people and entities is unpersuasive at best."), rev'd, 962 F.2d 2 (2d Cir. 1992).
This Court's award of attorney's fees to defendants is supported by the frivolity of Weiss's section 1985(3) and 1988 claims as well as his citation of several overruled cases when opposing defendants' motion to dismiss the Amended Complaint. (December 30 Order, supra note 3, at 10 n. 16). Although this Court declined defendants' request to sanction Weiss for filing this action, it now addresses a different question — to wit, whether defendants, as prevailing parties within the meaning of section 1988, are entitled to an award of attorney's fees. This Court noted in the November 5th Order that defendants satisfied their heavy burden in demonstrating that they are entitled to an award of attorney's fees in this case.
November 5th Order, at 7-8 (quoting Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986)). This Court's award of $7,500 represented a lodestar calculation performed by this Court for part of defendants' litigation of the motions to dismiss. See Green v. Torres, 361 F.3d 96, 99 (2d Cir. 2004) (noting that there is a "strong presumption that the lodestar figure represents a reasonable fee") (internal quotation marks and citations omitted).
This Court will not disturb defendants' award of attorney's fees because such award was reasonable in light of the circumstances of this case and because Weiss has failed to demonstrate that such award was a clear error of law or that it resulted in manifest injustice. Moreover, defendants' fee award is less than the cost of preparing their motions to dismiss and, when the effects of inflation are factored in, less than an award of attorney's fees under section 1988 that this Court found reasonable nearly twenty years ago in a case involving a prevailing defendant and a plaintiff of modest means where certain of such plaintiff's claims were without evidentiary foundation.
Della Pietra v. N.Y.S. Organized Crime Task Force, 630 F. Supp. 986, 988-993 (W.D.N.Y. 1986) (awarding prevailing defendant partial attorney's fees because, inter alia, plaintiffs failed to produce "any solid evidence" supporting plaintiff's allegation that defendant was a "state actor" and because plaintiff's claim against defendant "emanated from the acrimonious relationship between the parties"); see also Hutchinson v. Staton, 994 F.2d 1076, 1081-1082 (4th Cir. 1993) (noting that a motion for relief under FRCvP 59(e) must be denied where the non-prevailing plaintiff merely disagreed with the district court's award of attorney's fees in the amount of nearly $600,000 and holding such award to be proper because, inter alia, the non-prevailing plaintiff's conspiracy claims were frivolous despite the fact that they survived motions to dismiss and for summary judgment); Munafo v. Metro. Trans. Auth., 381 F.3d 99, 105 (2d Cir. 2004) (citing Hutchinson with approval); Spear v. Town of West Hartford, 789 F. Supp. 80, 84-85 (D. Conn. 1992) (awarding prevailing defendant attorney's fees in the amount of $13,463 because plaintiff's vague conspiracy claims were unsubstantiated).
See Della Pietra, supra note 10, at 988-993 (awarding prevailing defendant partial attorney's fees and costs in the amount of $5,463.50). According to the Consumer Price Index inflation calculator maintained by the U.S. Department of Labor, Bureau of Labor Statistics, $5,463.50 in 1986 dollars is $9,521.25 in 2004 dollars. See http://www.bls.gov/bls/inflation.htm. Consequently, defendants' award of attorney's fees in this case is less than the award found reasonable by this Court in Della Pietra.
Weiss's motion for reconsideration also seeks a stay of proceedings to enforce judgment under FRCvP 62. Weiss's request for a stay of proceedings to enforce judgment against him will be granted on the condition that he provide a supersedeas bond in the amount of $7,500.
Where a party posts a supersedeas bond, a court must grant a stay of execution pursuant to FRCvP 62(d). See, e.g., Malarkey v. Texaco, Inc., 794 F. Supp. 1248, 1249 (S.D.N.Y. 1992) ("A party is entitled to post a bond and stay execution of a monetary judgment as a matter of right."); see also Cayuga Indian Nation of N.Y. v. Pataki, 188 F. Supp. 2d 223, 251 (N.D.N.Y. 2002) (noting that there is a "right to an automatic stay under Rule 62(d) in conjunction with the posting of a [supersedeas] bond").
Accordingly, it is hereby ORDERED that plaintiff's motion for reconsideration is granted in part and denied in part, that plaintiff's request for a stay of proceedings to enforce judgment against plaintiff is granted provided that plaintiff provide by January 24, 2005 a supersedeas bond in the amount of $7,500 or other security in such amount as permitted by the Clerk of this Court, that plaintiff's motion for reconsideration is otherwise denied and that this case remains closed in this Court.