Opinion
82-A-2733, 97-CV-0020E(Sc)
October 30, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Familiarity with the facts and lengthy procedural history of this case is presumed. Plaintiff filed this action January 13, 1997, claiming that officers of the police department of the Niagara Frontier Transit Authority ("NFTA") had violated his civil rights on four separate occasions. Following plaintiff's motion for summary judgment and defendants' cross-motion for partial summary judgment, this Court issued a July 25, 2000 Order in which the plaintiff's motion was denied and defendants' motion was granted. See Sanders v. Ritzer et al., 2000 WL 1047666 (W.D.N.Y. 2000). On October 25, 2001 this Court commenced a jury trial in order to hear plaintiff's remaining claims.
A more detailed recitation of plaintiff's allegations in this case is set forth in an October 8, 1997 Decision and Order of District Judge Richard Arcara.
Following the plaintiff's case-in-chief and the testimony of one of the defendants' witnesses, defendants moved this Court, pursuant to Rule 50(a) of the Federal Rules of Civil Procedure ("FRCvP"), for Judgment as a Matter of Law. Such motion was granted and this case was dismissed in its entirety. Plaintiff timely filed — viz., on November 5, 2001 — a Motion to Alter or Amend Judgment pursuant to FRCvP 59. Plaintiff's motion will be denied.
The undersigned granted defendants' motion because plaintiff had failed to establish any legally sufficient basis upon which a reasonable jury could find for the plaintiff on his claims against the defendants.
Plaintiff filed an additional Rule 59 motion on November 19, 2001. Such motion will be dismissed inasmuch as it is nothing more than a photocopy of plaintiff's November 5, 2001 motion.
A FRCvP 59(e) motion will be granted only in one of the following three circumstances: "(1) an intervening change in the controlling law, (2) the availability of new evidence or (3) the need to correct a clear legal error or prevent manifest injustice." Fla. Software Systems, Inc. v. Columbia/HCA Healthcare Corp., 2002 WL 31011885, at *1 (W.D.N.Y. 2002); Cray v. Nationwide Mut. Ins. Co., 192 F. Supp.2d 37, 39 (W.D.N.Y 2001); Wilson v. Consolidated Rail Corp., 815 F. Supp. 585, 586 (N.D.N.Y. 1993). Plaintiff's moving papers do not clearly articulate upon which of those three grounds his motion should be granted. However, this Court need not linger in deciphering the motion as all but one of plaintiff's arguments must be rejected because they represent plaintiff's attempt to reargue issues already heard before this Court. See Fla. Software Systems, Inc., at *1 ("The party making a FRCvP 59(e) motion `may not address facts, issues, or arguments not previously presented to the court or reargue those issues already considered.'") (quoting Cray, at 39); see also Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) ("It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a "second bite at the apple."). Thus, plaintiff's only remaining argument in support of his motion is that this Court should not have admitted defendants' exhibits into evidence because they were not timely filed according to FRCvP 26(a)(3). See Pl.'s Mot. to Alter or Amend J. ¶¶ 2,3. Such an argument will be construed by this Court as plaintiff's attempt to argue that this Court should reconsider and amend its October 25, 2001 ruling in order to correct a clear legal error or prevent manifest injustice. Such argument is without merit. First, none of defendants' exhibits was ever admitted into evidence. Second, even assuming arguendo that defendants failed to timely submit pre-trial disclosures as required by FRCvP 26(a)(3), plaintiff has failed to show this Court that such failure resulted in any prejudice to plaintiff. Plaintiff has simply failed to identify anything in the record that would justify the need for this Court to revisit its previous ruling on defendants' FRCvP 50 motion. See U.S.A. v. Various Articles of Obscene Merch., 1995 WL 311341, at *1 (E.D.N.Y. 1995) (noting that a FRCvP 59(e) movant must specifically identify those matters which the Court has overlooked and explain why those matters render the Court's earlier decision erroneous). There is no indication that the undersigned's dismissal of plaintiff's case was erroneous; therefore plaintiff's motion must be denied as he has not shown a need for this Court to correct a clear error in law or fact or prevent manifest injustice.
For instance plaintiff asserts, in a conclusory fashion, that the undersigned's decision to dismiss this case "was against the weight of the evidence" and also that defendants' FRCvP 50 motion should "have been wholly denied in the interest of justice." Pl.'s Mot. to Alter or Amend J., ¶¶ 1, 6.
FRCvP 26(a)(3) requires, among other things, that a litigant provide a list of exhibits to other parties "at least 30 days before trial."
The only evidence offered by defendants was the testimony of a single witness, Paul Saviola.
Moreover, the remedy for the failure of a party to disclose evidence as required by FRCvP 26(a) is the exclusion of such evidence from use at trial unless such failure is harmless. See FRCvP 37(c)(1). Plaintiff has done nothing to show that Saviola's testimony prejudiced him, or harmed him, in any way.
Accordingly, it is hereby ORDERED that plaintiff's Motion to Alter or Amend Judgment is denied.