Summary
stating that an equitable tolling argument cannot be raised for the first time on a motion for reconsideration
Summary of this case from Merryman v. J.P. Morgan Chase BankOpinion
97 Civ. 7616 (RWS)
May 18, 2000
Franklin Grullon, Plaintiff Pro Se.
Laura Eberstein, Esq., Assistant Corporation Counsel (of counsel), Attorney for City Defendants.
OPINION
Plaintiff Franklin Grullon ("Grullon"), pro se, has moved, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, for reconsideration of the judgment rendered by this Court in this action on August 9, 1999. For the reasons set forth below, the motion is denied.
Facts and Prior Proceedings
Facts and prior proceedings in this case are set forth in a prior opinion of this Court, familiarity with which is assumed. See Grullon v. Reid, No. 97 Civ. 7616 (RWS), 1999 WL 436457 (S.D.N.Y. June 24, 1999).
Following entry of judgment for defendants on August 9, 1999, Grullon filed a notice of appeal on August 10. On August 30, Grullon filed a request for a ten-day extension of time to file a motion for reconsideration. On September 7, he filed the motion for reconsideration.
On September 20, 1999, this Court denied Grullon's motion for reconsideration for lack of jurisdiction, Grullon having already filed his appeal.
On October 25, 1999, the Court of Appeals for the Second Circuit withdrew Grullon's appeal without prejudice in order to permit this Court to rule on Grullon's motion for reconsideration.
Grullon resubmitted his motion for reconsideration on February 17, 2000. The motion was marked fully submitted on March 8, 2000.
Grullon has also submitted a letter motion in which he seeks preliminary injunctive relief ordering the Bureau of Prisons to cease various forms of retaliation against him for his pending litigations against the government. However, there is no relationship between the injury claimed in Grullon's letter motion and the conduct asserted in the complaint in this action. Preliminary injunctive relief is therefore improper. See Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) ("a party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint;" the court found that the prisoner's motion was based on new assertions of mistreatment that were entirely different from the claim raised and the relief requested in his complaint).
Discussion
Grullon has moved for reconsideration of the judgment pursuant to Rule 59(e). To prevail on a motion for reconsideration under Rule 59(e), the movant must present "[factual] matters or controlling decisions the court overlooked that might materially have influenced its earlier decision." Robins v. Max Mara, U.S.A., Inc., 923 F. Supp. 460, 472 (S.D.N.Y. 1996) (quoting Morser v. A.T. T. Info. Sys., 715 F. Supp. 516, 517 (S.D.N Y 1989)). Alternatively, the movant must demonstrate "the need to correct a clear error or prevent manifest injustice." Fruit of the Loom, Inc. v. American Mktg. Enters., Inc., 97 Civ. 3510 (HB), 1999 WL 527989, at *1 (S.D.N.Y. July 22, 1999) (quoting Morales v. Quintiles Transnational Corp., 25 F. Supp.2d 369, 372 (S.D.N.Y. 1998)). These criteria are strictly construed against the moving party so as to avoid repetitive arguments on issues that have been considered fully by the court. See Monaghan v. SZS 33 Assocs., 153 F.R.D. 60, 65 (S.D.N.Y. 1994).
In deciding a reconsideration motion, the Court must not allow a party to use the motion as a substitute for appealing from a final judgment. See Morser, 715 F. Supp. at 517. Therefore, a party may not "advance new facts, issues or arguments not previously presented to the court." Morse/Diesel, Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N Y 1991). The decision to grant or deny the motion is within the sound discretion of the district court. See Schaffer v. Soros, No. 92 Civ. 1233, 1994 WL 592891 (S.D.N.Y. Oct. 31, 1994).
Grullon only seeks reconsideration of the judgment with respect to defendants Edward Delatorre ("Delatorre") and Edward Piraglia ("Piraglia"), two New York State police officers. Grullon seeks reconsideration of dismissal of his § 1983 claims on statute of limitations and lack of jurisdiction grounds. He also seeks reconsideration of the dismissal of his claim for return of property, and for leave to amend or to dismiss without prejudice to replead.
With respect to his § 1983 claims, Grullon first asks the Court to invoke the doctrine of equitable tolling of the statute of limitations. This argument was not presented to the Court in Grullon's opposition papers to defendants' motion for summary judgment and cannot be raised on a motion for reconsideration.
Even were the Court to consider the doctrine of equitable tolling, it would fail in this case. Equitable tolling is available for § 1983 actions, and
when a "defendant fraudulently conceals the wrong, the time [limit of the statute of limitations] does not begin running until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, the cause of action." Keating v. Carey, 706 F.2d 377, 382 (2d Cir. 1983). To take advantage of this doctrine, however, a plaintiff must submit non-conclusory evidence of a conspiracy or other fraudulent wrong which precluded his possible discovery of the harms that he suffered. See, e.g., Dory v. Ryan, 999 F.2d 679, 681 (2d Cir. 1993) (tolling statute of limitations until time when plaintiff received an affidavit from a witness at his trial detailing the existence of a conspiracy by state officials to present perjurious testimony against plaintiff), modified on other grounds, 25 F.3d 81 (2d Cir. 1994).
Pinaud v. County of Suffolk, 52 F.3d 1139, 1157-58 (2d Cir. 1995).
Grullon's basis for invoking the equitable tolling doctrine is that Delatorre and Piraglia conspired to withhold information from Grullon and his family that precluded him from discovering the wrongs which he alleges in his complaint. However, Grullon has not submitted any non-conclusory evidence of any conspiracy. Moreover, the facts which Grullon states were considered by the Court in the context of defendants' summary judgment motion. Nothing Grullon raises in the instant motion merits reconsideration of the decision to dismiss the claims on the statute of limitations defense.
For this reason, it is unnecessary to consider Grullon's contentions regarding jurisdiction over the § 1983 claims. These contentions do not merit reconsideration, however.
Conclusion
For the reasons set forth above, Grullon's motion is denied.
It is so ordered.