Opinion
04-CV-927.
March 14, 2005
GUCCIARDO RAUM LAW FIRM, BRIAN W. RAUM, ESQ., New York, NY, Attorneys for Plaintiffs.
JAMES MICHAEL JOHNSON, ESQ., Shrevenport, LA, Attorney for Plaintiffs.
HON. ELIOTT SPITZER, Albany, NY, Attorney General of State of New York Attorney for Defendants.
KATE H. NEPVEU, ESQ., Assistant Attorney General.
MEMORANDUM-DECISION AND ORDER
In this action plaintiff, The Children First Foundation ("Children First"), alleges violations of its constitutional rights based upon the denial of its application for a custom license plate which included the phrase "Choose life." The defendants, Raymond P. Martinez, Commissioner of the New York Department of Motor Vehicles ("DMV"); Jill A. Dunn, DMV Deputy Commissioner and Counsel; Eliot Spitzer, Attorney General of the State of New York; and George E. Pataki, Governor of the State of New York, are all being sued in their individual and official capacities. On January 4, 2005, the court heard oral argument with respect to defendants' motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Defendants moved for dismissal on a number of grounds. For the most part, the court denied that motion.
During oral argument defendants sought clarification as to the issue of qualified immunity. Noting that the defendants had not yet answered, the court suggested that that affirmative defense be raised in their answer. Transcript (Jan. 4, 2005) ("Tr.") at 75-76. The court further suggested that after the filing of an answer, defendants could raise the issue of qualified immunity on a summary judgment motion. See id. The court concluded by stating that it was not "considering" the qualified immunity issue at that juncture. Id. at 76.
Pursuant to Fed.R.Civ.P. 54(b) and Local Rule 7.1(g), the defendants are now seeking to have the court "reconsider its decision to not rule on their [qualified immunity] defense[.]" Memorandum of Law in Support of Defendants' Motion for Reconsideration in Part Under Federal Rule of Civil Procedure 54(b) and Local Rule 7.1(g) ("Def. Memo.") at 3.
Discussion
I. JurisdictionThe minutes reflecting the court's decision from the bench were not entered until the next day, January 5, 2005. See Dkt. 16. Evidently the defendants used that date, rather than the decision date, to begin calculating the time frame for moving for reconsideration because on January 19, 2005, they filed their motion for partial reconsideration. A couple of weeks after the filing of their motion for reconsideration, on February 2, 2005, defendants filed a Notice of Appeal with the Second Circuit.
"The Second Circuit . . . has repeatedly held that the docketing of a notice of appeal ousts the district court of jurisdiction except insofar as it is reserved to it explicitly by statute or rule." New York v. National Services Industries, Inc., 208 F.R.D. 38, 40 (E.D.N.Y. 2002) (internal quotation marks and citations omitted). By the same token, "[t]he Second Circuit allows a district court either to entertain and deny the rule 60(b) motion without the circuit court's permission, or grant a rule 60(b) motion afer an appeal is taken . . . if the moving party obtains permission form the circuit court[.]"Oneida Indian Nation of New York v. County of Oneida, 214 F.R.D. 83, 86 (N.D.N.Y. 2003) (internal quotation marks and citations omitted). If, after the filing of a notice of appeal, the district court is inclined to grant a Rule 60(b) motion, "it should give an express indication that it intends to do so, but the court [should] not actually grant such relief until such time as the Court of Appeals remands the case to the district court for that purpose." New York v. National Services Industries, Inc., 208 F.R.D. 38, 40 (E.D.N.Y. 2002) (internal quotation marks and citations omitted).
For present purposes, the court deems this Rule 54(b) motion for reconsideration to be the functional equivalent of a Rule 60(b) motion for relief from judgment or order. Therefore, despite the filing of the Notice of Appeal, this court has jurisdiction to consider this Rule 54(b) motion and will do so consistent with the procedure set forth above.
II. Governing Legal Standard
____ "Rule 54 provides, in relevant part, that, prior to entry of a final judgment, an interlocutory `order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.'" Official Committee of the Unsecured Creditors of Color tile, Inc., 322 F.3d 147, 167 (2d Cir. 2003) (quoting Fed.R.Civ.P. 54(b)). The Second Circuit has "limited district courts' reconsideration of earlier decisions under Rule 54(b) by treating those decisions as law of the case, which gives a district court discretion to revisit earlier rulings in the same case, subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Id. (internal quotation marks and citation omitted). Thus, prior decisions "may not usually be changed unless there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice." Id. (internal quotation marks and citation omitted).
In the present case, defendants argue that they are entitled to reconsideration on the third ground, i.e., to correct a clear error of law or prevent manifest injustice. The court "enjoys broad discretion when making a determination to reconsider on this ground, . . [but] it will not disregard the law of the prior case unless the Court has a clear conviction of error with respect to a point of law on which its previous decision was predicated." New York v. RAC Holding, Inc., 135 F.Supp.2d 359, 362 (N.D.N.Y. 2001) (internal quotation marks and citations omitted). "A party seeking to overturn a ruling under the clearly erroneous standard generally bears a heavy burden." Bath Petroleum Storage, Inc. v. Sovas, 309 F.Supp.2d 357, 361 (N.D.N.Y. 2004) (internal quotation marks and citations omitted). The defendants in the present case have not met this heavy burden.
To be sure, the Second Circuit in McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004), held that "a qualified immunity defense can be presented on a Rule 12(b)(6) motion," as did the defendants herein. See id. at 434. The Court stressed, however, that the qualified immunity defense " faces a formidable hurdle when advanced on such a motion[.]" Id. at 434 (emphasis added). TheMcKenna Court explained that the defendant must "accept the more stringent standard applicable" to relying upon Rule 12(b)(6) such that qualified immunity may be granted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Id. at 436. "Thus, the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense." Id. (emphasis added). In McKenna the Court held that it lacked appellate jurisdiction because it could not determine the availability of qualified immunity as a matter of law on the appeal of a denial of a motion to dismiss based upon qualified immunity.
This court is in a substantially similar position. The defendants have not established that the facts on the face of the Children First complaint support a qualified immunity defense.Cf. Patterson v. Travis, No. 02 CV 6444, 2004 WL 2851803, at *8 (E.D.N.Y. 2004) (citing McKenna, 386 F.3d at 436) ("A qualified immunity defense may be established in a 12(b)(6) motion when the defense is based on facts appearing on the face of the complaint.") Moreover, defendants have not shown clear error based upon the court's observations that they should assert qualified immunity in their answer and then proceed to a motion for summary judgment. Nor have the defendants shown how granting their motion for reconsideration will "prevent manifest injustice." Accordingly, the court hereby DENIES the defendants' motion for reconsideration brought pursuant to Fed.R.Civ.P. 54(b) and Local Rule 7.1(g).
In light of the foregoing, the court hereby ORDERS that the stay granted on February 18, 2005 is lifted.
IT IS SO ORDERED.