Opinion
Civ. No. 03-1529
October 21, 2003
OPINION and ORDER
This matter comes before the Court upon pro se Plaintiff Tecchio's Motion to Amend and Alter the Opinion and Order of the Court signed on September 24 and filed on September 26, 2003, granting Defendants' Motion to Dismiss without prejudice. The Court has opted to adjudicate this motion on the papers pursuant to Fed.R.Civ.P. 78. For the reasons set fort belong Plaintiff's Motion to Amend and Alter is denied.
"To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition." Fed.R.Civ.P. 78.
I. BACKGROUND
On or about April 7, 2003, plaintiff, Vincent Gerard Tecchio, filed a verified complaint alleging that certain Internal Revenue Service employees violated multiple statutes, regulations and various sections of the Internal Revenue Manual. Plaintiff filed an amended complaint on or about June 6, 2003. Whereupon, Defendants filed a Motion to Dismiss Complaint on June 10, 2003. The Court granted Defendants' Motion to Dismiss, on the basis of the briefs pursuant to Fed.R.Civ.P. 78. The Motion was granted without prejudice, and Plaintiff was given until October 14, 2003 to submit an amended complaint, curing the defects noted in the Court's Opinion and Order of September 26. Plaintiff's Motion to Strike Defendant's Motion to Dismiss and Motion for Partial Summary Judgment on Liability were submitted on September 11, but were not fully briefed until September 29, 2003. As Plaintiff's Complaint had already been dismissed, these motions were deemed moot and not considered by the Court.
Plaintiff submitted a Motion to Amend and Alter, essentially a Motion for Reconsideration, on or about October 3, 2003. Additionally, Plaintiff submitted a second amended complaint, as he was granted leave to do by the court, on October 14, 2003.
II. STANDARD OF REVIEW
Motions for reconsideration are governed by Local Rule 7.1(g). The "purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence."Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). On its face, Rule 7.1(g) defines a motion for reconsideration as one "setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate Judge has overlooked." The word "overlooked is the operative term in the rule, and it has been interpreted consistently as referring only to facts and legal arguments properly presented to the court at the time the motion on which reargument is sought was initially decided." Lite, N.J. Federal Practice Rules, Comment 6(e)(1) to Rule 7.1(g), (Gann). A motion for reconsideration is not a means by which to obtain a proverbial second bite of the apple.Id. Accordingly, the Court has reconsidered its rulings only where convinced that germane information was initially overlooked.
Rule 7.1(g) governs both motions for "reargument" and "reconsideration," and those terms are used interchangeably in this context. See Public Int. Research Group v. Yates Industries, 790 F. Supp. 511, 512 n. 1 (D.N.J. 1991).
III. DISCUSSION
Plaintiff's first argument is that his amended complaint of June 6, 2003, did adequately describe and define his allegations against Defendants. While Plaintiff, in his Brief in support of his Motion for Reconsideration, includes some additional explanation of his claims, he neither alleges an intervening change in controlling law, nor does he allege facts that were not previously available to him. On this point, Plaintiff's Motion for Reconsideration presents essentially the same facts and legal arguments that were preferred for this Court's consideration with regards to the earlier motion. There is nothing new now before the Court which might warrant reconsideration of the previous analysis, or that makes Reconsideration a more appropriate vehicle than Plaintiff's submission of an amended complaint.
Second, Plaintiff argues that the Court erred in addressing Defendants' Motion to Dismiss, without also considering Plaintiff's Partial Motion for Summary Judgment with accompanying exhibits. Plaintiff's motion was not considered by the Court as part of its determination of Defendants' Motion to Dismiss as it was submitted more than two months following receipt of briefs on Defendants' Motion, was not fully briefed until after the Court had reached its determination on Defendants' Motion, and was moot following the Court's order to grant Defendants' Motion to Dismiss without prejudice.
Third, Plaintiff argues that Defendants' Motion to Dismiss automatically turned into a motion for summary judgment when "matters outside the pleading [were] presented to and not excluded by the court." Fed.R.Civ.P. 12(b). The only matters outside the pleadings that Plaintiff can be referring to are those included in his Motion for Partial Summary Judgment. As explained above, as Plaintiff's Motion was submitted substantially after Defendants' Motion to Dismiss and was not fully briefed at the time the Court made its determination on Defendants' Motion, Plaintiff's Motion and accompanying exhibits were not considered. Therefore, Defendants' Motion to Dismiss did not become a motion for summary judgment pursuant to Fed.R.Civ.P. 12(b).
Moreover, Plaintiff appears to argue that Fed.R.Civ.P. 56 somehow requires that he be given a hearing before the Court. The rule, when applicable, states that "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Even if Rule 56 were applicable in the present case, the rule does not give Plaintiff a right to an oral argument, but merely the right to present material to the Court, which can be done in written form. In fact, as mentioned earlier, Fed.R.Civ.P. 78 permits the Court to determine motions on written statements, without oral argument, in order to expedite business before the court. This Court was well within its discretion and the rules to decide the outcome of Defendants' Motion to Dismiss solely on the basis of the papers submitted by both parties.
Plaintiff makes additional arguments regarding alleged inadequacies of Defendants' response to Plaintiff's Motion for Partial Summary Judgment. As stated above, as this Motion was not considered by the Court, nor addressed at all in its Opinion and Order of September 26, these arguments are irrelevant to whether the Court should reconsider its granting Defendants' Motion to Dismiss, and therefore these arguments will not be discussed here.
Plaintiff lastly argues that the Court has failed to apply the less stringent standards of pleading that he is entitled to as a pro se plaintiff. The Court indeed is cognizant of Mr. Tecchio's pro se status, and has construed his pleadings liberally. Additionally, the Court explicitly permitted Plaintiff the opportunity to resubmit a pleading cured of defects, and Plaintiff has submitted a second amended complaint.
IV. CONCLUSION
As discussed above, it is well-settled that a motion for reconsideration is neither a tool for rearguing that which has already been duly considered, nor an appeal from a decision with which the moving party simply disagrees. While it is clear that Plaintiff Tecchio emphatically disagrees with the Court's September 26th decision, he has failed to present either material evidence that was unavailable to him before now, or law that the Court may have overlooked in reaching the decision. If he is better able to describe his allegations against Defendants, he may more appropriately do so in the form of an amended complaint.
It is therefore on this 21st day of October, 2003:
ORDERED that Plaintiff's Motion to Amend and Alter the Opinion and Order of September 26, 2003 is DENIED.