Wiltshire v. Williams

• Decision Date: 15 March 2012
• Docket Number: 10 Civ. 6947
• Parties: JAMES V. WILTSHIRE, Plaintiff, v. KEAGAN MARIE WILLIAMS, JESSICA TROY, WILLIAM DARROW, CYRUS R. VANCE, JR., P.O. RAQUEL WARBURTON, SERGEANT RICARDO SANTOS, SERGEANT JOHN WERNICKU, THE CITY OF NEW YORK, and JOHANNA WIRTH, Defendants.
• Court: U.S. District Court — Southern District of New York

JAMES V. WILTSHIRE, Plaintiff, v. KEAGAN MARIE WILLIAMS, JESSICA TROY, WILLIAM DARROW, CYRUS R. VANCE, JR. P.O. RAQUEL WARBURTON, SERGEANT RICARDO SANTOS, SERGEANT JOHN WERNICKU THE CITY OF NEW YORK, and JOHANNA WIRTH, Defendants.

10 Civ. 6947

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: March 15, 2012

OPINION

APPEARANCES:

Pro Se

James V. Wiltshire

Attorneys for Defendants Keagan Marie Williams,

Jessica Troy, William Darrow and Cyrus R. Vance, Jr.

NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE

New York, NY 10013

By: Anne Louise Schwartz, Esq.

Attorneys for Defendants City of New York and Raquel

Warburton

OFFICE OF CORPORATION COUNSEL OF THE CITY OF NEW YORK

By: Mary Theresa O'Flynn, Esq.

Bradfrod Collins Patrick, Esq.

Steven Mark Siiverberg, Esq.

Sweet, D.J.

There are three motions pending in the above-captioned action. Plaintiff James Wiltshire ("Wiltshire," or the "Plaintiff") has filed a motion for reconsideration of the Court's opinion filed January 3, 2012 (the "January 3 Opinion") granting the motion to dismiss filed by Defendants Keagan Marie Williams, Jessica Troy, William Darrow and Cyrus R. Vance, Jr. (the "DA Defendants"). Wiltshire has also filed a motion for disqualification and recusal pursuant to 28 U.S.C. § 455. Finally, Defendants City of New York and Police Officer Raquel Warburton ("Warburton" and, with the City of New York, the "City Defendants") have moved, pursuant to Fed. R. Civ. P. 12(c), to dismiss Wiltshire's amended complaint filed May 16, 2011 (the "Amended Complaint"). Based upon the conclusions set forth below, the Plaintiff's motion for reconsideration is granted. However, upon reconsideration, the Court affirms the conclusion reached in the January 3 Opinion granting the DA Defendants' motion to dismiss. The Plaintiff's motion for disqualification and recusal is denied, and the City Defendants' motion to dismiss is granted.

Prior Proceedings

The allegations contained in the Amended Complaint and most of the prior proceedings concerning Wiltshire's lawsuit are outlined in the January 3 Opinion. Familiarity with these prior proceedings is assumed. On January 12, 2012, the Plaintiff filed his motion for reconsideration. The motion was heard on submission and marked fully submitted on February 8. On February 10, the Court received a letter from the Plaintiff requesting that the Court disqualify and recuse itself pursuant to 28 U.S.C. § 455. The February 10 letter also asked that the Court reconsider an order dated January 3 0 granting the City Defendants an additional ten pages for the City Defendants' Fed. R. Civ. P. 12(c) motion. The Plaintiff followed up his February 10 correspondence with a letter dated February 14 requesting the same relief.¹ The Plaintiff's request was treated as a motion and marked fully submitted on February 28. On February 7, 2012, the Court received the City Defendants' motion to dismiss the Amended Complaint, pursuant to Fed. R. Civ. P. 12(c). Although the City Defendants' motion to dismiss was not electronically filed until February 15, counsel for the City Defendants has attested that he served Wiltshire on February 6, 2012. Pursuantto the Court's scheduling order dated February 8, the City Defendants' motion was marked fully submitted on February 29.

Notwithstanding the scheduling order establishing February 2 9 as the deadline for submission of materials related to the City Defendants' Fed. R. Civ. P. 12(c) motion, the Plaintiff has submitted additional materials past that deadline. These materials include a June 9, 2010 request from the New York County District Attorney's Office to the New York City Family Court records office for a certified copy of the temporary order of protection entered against Wiltshire, a document entitled "Record of Court Action" from the Criminal Court of the City of New York, a copy of a petition regarding a violation of an order of protection filed with the Family Court of the State of New York on June 1, 2010, a document entitled "Family Offense / Order of Protection / Violation / Modification Worksheet" dated June 1, 2010 describing Wiltshire's alleged violation of an order of protection, a copy of an order of protection issued by the Family Court of the State of New York dated May 6, 2010 and an affidavit dated May 27, 2010 submitted by Warburton to the Criminal Court of the City of New York, County of New York. Because of the Plaintiff's pro se status and because of the City Defendants' delay in filing their Rule 12(c) motionelectronically, the Court has considered these additional materials in evaluating the pending motions. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) ("Implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.") (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

The Applicable Standards

As noted above, there are three motions pending before the Court, each of which carries its own applicable standard. As Wiltshire is proceeding pro se, his petition will be construed liberally. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) ("[T]he pleadings of a pro se plaintiff must be read liberally and should be interpreted to 'raise the strongest arguments that they suggest.'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

A. Motion For Reconsideration

The Plaintiff requests reconsideration of the January 3 Opinion pursuant to Fed. R. Civ. P. 59(e). Under Fed. R. Civ. P. 59(e), a court may grant reconsideration where the party moving for reconsideration demonstrates an "intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Henderson v. Metro. Bank & Trust Co., 502 F. Supp. 2d 372, 376 (S.D.N.Y. 2007) (quotation marks and citations omitted); Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) ("Reconsideration may be granted to correct clear error, prevent manifest injustice or review the court's decision in light of the availability of new evidence.") (citing Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); Catskill Dev., L.L.C. v. Park Place Entm't Corp., 154 F. Supp. 2d 696, 701-02 (S.D.N.Y. 2001) (granting reconsideration due to the court's erroneous application of a statute). The moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision. See Linden v. Dist. Council 1707-AFSCME, 415 Fed. Appx. 337, 338-39 (2d Cir. 2011) (affirming dismissal of reconsideration motion as movant did not identify any relevant facts or controlling authority that thelower court overlooked); Lichtenberg v. Besicorp Grp. Inc., 28 Fed. Appx. 73, 75 (2d Cir. 2002) (affirming dismissal of reconsideration motion where movant "failed to demonstrate that the [lower] court overlooked any fact of consequence or controlling legal authority at the time the court decided [the case]").

The reason for the rule confining reconsideration to matters that were "overlooked" is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Polsby v. St. Martin's Press, Inc., No. 97 Civ. 690(MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (citation and quotation marks omitted). A court must narrowly construe and strictly apply Local Rule 6.3, which governs motions for reconsideration or reargument, so as to avoid duplicative rulings on previously considered issues and to prevent the rule from being used as a substitute for appealing a final judgment. See In re Bear Stearns Cos., Inc. Sec. Derivative and ERISA Litig., 08 M.D.L. No. 1963, 2009 WL 2168767, at *1 (S.D.N.Y. Jul. 16, 2009) ("A motion for reconsideration is not a motion to reargue those issues already considered when a party does not like the way the originalmotion was resolved.") (quoting Davey v. Polan, 4 96 P. Supp. 2d 387, 389 (S.D.N.Y. 2007)); ResQNet.com, Inc. v. Lansa, Inc., No. 01 Civ. 3578, 2008 WL 4376367, at *2 (S.D.N.Y. Sept. 25, 2008) ("The standard for granting such a motion 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.") (citations and quotation marks omitted). Motions for reconsideration "are not vehicles for taking a second bite at the apple, . . . and [the court] [should] not consider facts not in the record to be facts that the court overlooked." Rafter v. Liddle, 288 Fed. Appx. 768, 769 (2d Cir. 2008) (citation and quotation marks omitted).

Even if a court grants a motion for reconsideration, it can reaffirm on other grounds the conclusion reached in its previous opinion. See, e.g., Castro v. United Sec. Inc., No. 10 Civ. 6152(LBS), 2012 WL 555701, at *1 (S.D.N.Y. Feb. 21, 2012) ("For the reasons discussed below, the motion for reconsideration is granted. Upon reconsideration, we nevertheless reaffirm on other grounds the conclusion we reached in the October 17, 2011 Order, dismissing the case.").

B. Motion For Disqualification Or Recusal Under 28 U.S.C. § 455

The standard for recusal pursuant to 28 U.S.C. § 455 is whether "an objective, disinterested observer fully informed of the underlying facts, [would] entertain significant doubt that justice would be done absent recusal [.]" United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). Under 28 U.S.C. § 455(a), a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." A judge's acquaintance with a party, an attorney, or...