Summary
denying motion for reconsideration of rulings on motion to dismiss Second Amended Complaint
Summary of this case from Frierson-Harris v. HoughOpinion
05 Civ. 3077 (DLC).
May 7, 2007
For Plaintiff: Michael Wesley Frierson-Harris, pro se
For Defendants L. Robert Batterman and John F. Fullerton III: Howard Z. Robbins, Proskauer Rose LLP, New York, New York.
For Defendant David E. Frazer: A. Michael Furman, Jeffrey W. Kleiner, Kaufman Borgeest Ryan LLP New York, New York.
For Defendants Randall Balmer, Michael Maloney, Nick Zuhusky, and Despatch Moving Storage: James E. Carroll, C. Alexa Abowitz, Cetrulo Capone, LLP, New York, New York.
MEMORANDUM OPINION ORDER
Following a December 6, 2006 Memorandum Opinion and Order,Frierson-Harris v. Hough, No. 05 Civ 3077, 2006 WL 3511881 (Dec. 6, 2006) ("December Opinion"), and accompanying Orders (collectively, "December Opinion and Orders") granting in full or in part various motions to dismiss the plaintiff's second amended complaint, the plaintiff Michael Wesley Frierson-Harris ("Harris") brings this motion for reconsideration pursuant to Rule 6.3 of the Local Rules of Civil Procedure for the Southern District of New York. Harris seeks reinstatement of all dismissed claims except for those against defendant Randall Balmer. For the reasons that follow, Harris's motion for reconsideration is denied.
Harris purports to "reserve the right to seek leave to rejoin Balmer, either as a co-conspirator or as a non-party co-conspirator, should discovery disclose more evidence of his participation in and act(s) in furtherance of the alleged 42 U.S.C. § 1985 conspiracy than could be alleged reasonably in Complaint 2." To the extent this statement may be construed as a request to extend the deadline for filing a motion for reconsideration of the dismissal of claims against Balmer, such request is denied. Harris's right to seek leave to replead his complaint and join additional parties is governed by the scheduling orders entered in this case and the Federal Rules of Civil Procedure.
The December Opinion and Orders dismissed all claims against defendants David Frazer ("Frazer"), John F. Fullerton ("Fullerton"), Michael Maloney ("Maloney"), Nick Zuhusky ("Zuhusky"), Despatch Moving Storage ("Despatch"), and Randall Balmer ("Balmer"); dismissed the 42 U.S.C. § 1985 claim against defendant L. Robert Batterman ("Batterman"); and denied or reserved judgment on the motion to dismiss the remaining claims against Batterman. The December Orders that addressed the motions to dismiss by Frazer, Fullerton, and Batterman ("attorney defendants") incorporated reasoning from the Opinion and Order of February 7, 2006, which granted these defendants' motion to dismiss the claims against them in Harris's first amended complaint. Frierson-Harris v. Hough, No. 05-cv-3077, 2006 WL 298658 (Feb. 7, 2006) ("February Opinion"). The discussion that follows presumes the reader's familiarity with the December and February Opinions and Orders.
Harris's notice of motion states that he moves, in the alternative to modify the dismissals of defendants Frazer, Batterman, Fullerton, Maloney, Zuhusky, and Despatch to dismissals "with prejudice." The Opinion dismissed the claims against the defendants without identifying whether the dismissals were with or without prejudice. Harris is correct that the dismissals were with prejudice. While it is possible that Harris intended to request that these dismissals be without prejudice, he has not identified any error by the Court that would warrant reconsideration of the issue of prejudice.
The standard for 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 conclusion reached by the court." Shrader v. CSX Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Reconsideration should not be granted "where the moving party seeks solely to relitigate an issue already decided," id., and "a party . . . `may not advance new facts, issues or arguments not previously presented to the court.'" Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999) (citation omitted). A motion for reconsideration may not 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." Questrom v. Federated Dep't Stores, Inc., 192 F.R.D. 128, 131 (S.D.N.Y. 2000).
Construing Harris's motion for reconsideration liberally, he argues: (1) that the December Opinion and Orders overlooked principles stated in Marshall v. Fenstermacher, 388 F. Supp. 2d 536 (E.D. Pa. 2005), regarding the intra-corporate conspiracy doctrine; (2) that Fullerton and Batterman's action in bringing an Article 78 proceeding constituted one step in a larger civil rights conspiracy, rather than the goal of the conspiracy; (3) that the allegations in the second amended complaint were sufficient to state a claim that Batterman and Fullerton aided and abetted a violation of the New York Human Rights Law; (4) that one of the December Orders, in dismissing the Section 1985 claim against Frazer, overlooked caselaw on intent to discriminate and conspire, and that the March 22, 2004 written communication between Frazer and the plaintiff establishes Frazer's intent; (5) that Frazer acted unlawfully by failing to enter an Order for a Temporary Stay of the Civil Court eviction; (6) that various allegations in the second amended complaint support a finding that Frazer had a "meeting of minds" with Fullerton; (7) that the December Opinion, in dismissing claims against Maloney, Zuhusky, and Despatch, overlooked Southern District of New York caselaw imposing personal liability on agents and recognizing civil rights conspiracies among a corporation and its employees under certain circumstances; (8) that the December Opinion, with respect to the same claims, overlooked Fourth Circuit caselaw permitting plaintiffs to establish a "meeting of the minds" through circumstantial evidence; and (9) that particular allegations of the Second Amended Complaint supported the claims against Maloney, Zuhusky, and Despatch.
In ruling on the motions to dismiss, the Court considered all of the factual allegations upon which Harris's present arguments rely. Similarly, Harris has presented no controlling legal authority that the Court overlooked. Harris did not present in his opposition to the motions to dismiss several of the arguments and state law cases on which he now relies. In sum, Harris's motion for reconsideration improperly reargues the motions to dismiss. Conclusion
The motion for reconsideration of the December Opinion and Orders is denied.
SO ORDERED: