The opinion of the court was delivered by: THOMAS J. MCAVOY
Defendants in this action moved for summary judgment and plaintiffs cross-moved for partial summary judgment. Oral argument was heard on December 13, 1994. A bench decision was rendered and a corresponding order was signed on January 31, 1994. The order dismissed the Federal Educational Privacy and Rights Act (FERPA) claim against the law enforcement defendants, and dismissed the equal protection, fourth amendment and intentional infliction of emotional distress claims against all defendants. The court dismissed the conspiracy claims relating to the alleged violations of plaintiffs' equal protection and fourth amendment rights. The court also dismissed pendant state law claims involving New York Civil Rights Law and the New York Personal Privacy Protection Law.
Defendants now seek reconsideration of:
1.) the qualified immunity defense of defendants Wilson and Hunt in regard to the FERPA claim;
2.) the qualified immunity defense of the law enforcement defendants;
3.) the determination that the elements of a cause of action under 42 U.S.C. § 1981 are not the same as those of a fourteenth amendment claim;
4.) the court's decision not to dismiss the Title VI claims;
5.) the court's denial of summary judgment in favor of defendant Hartmark in regard to the FERPA claim.
The defendants also seek consideration of the argument that plaintiffs have no state law vehicle by which to recover for violations of state law involving investigatory stops by law enforcement officials.
Plaintiffs seek reconsideration of:
1.) the holding that state law violations cannot constitute violations of the federal equal protection clause;
2.) the dismissal of claims against the City of Oneonta;
3.) the denial of certification to proposed Class II;
4.) the grant of summary judgment in favor of defendants for claims brought under the fourth amendment;
5.) the holding that compensatory damages are not available under Title VI;
6.) the grant of summary judgment in favor of defendants for claims brought pursuant to New York Civil Rights Law.
Furthermore, plaintiffs seek final judgment or certification of several issues to the circuit court for interlocutory appeal.
A. Untimely Filing of Oneonta Defendants' Motion for Reconsideration
The motion for reconsideration by the Oneonta defendants, although submitted in the form of opposition to plaintiffs' motion for reconsideration, cannot be considered by the court insofar as it goes beyond opposition to plaintiffs' motion. Under the version of Local Rule 10(m) which was in effect when this motion was filed
a motion for reconsideration must be filed within ten (10) days of entry of the order to which it pertains. This deadline cannot be extended by the court. Fed.R.Civ.P. 6(b). Because the Oneonta defendants raise new grounds for reconsideration which fall beyond the scope of opposition to plaintiffs' reconsideration arguments, and because their motion was not filed until February 28, 1994, 28 days after entry of the order, these argument cannot be considered due to untimeliness. The court, however, weighs the Oneonta defendants' submissions insofar as they respond to plaintiffs' reconsideration motion.
B. Standard for Reconsideration
A court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice. Larsen v. Ortega, 816 F. Supp. 97, 114 (D. Conn. 1992). It appears that many of these motions for reconsideration rely on the third prong of this test: the need to correct a clear error of law or prevent manifest injustice. "With regard to the third ground, the Court cautions that any litigant considering bringing a motion to reconsider based upon that ground should evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant." Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990). The motion for reconsideration is not a device "intended to give an unhappy litigant one additional chance to sway the judge." Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977). It is in light of this standard that the court undertakes reconsideration of its January 31, 1994 order.
Defendant Hartmark seeks reconsideration of the court's denial of summary judgment in his favor on the FERPA claim. Hartmark bases this motion on the alleged availability of new evidence. He claims that since the order was signed it has come to his attention that the Public Safety Office ("PSO") at SUNY Oneonta ("SUCO") maintains records of all enrolled students and copies of photo identification cards for all students. Furthermore, he claims that it has come to his attention that the PSO has access to a database called "Banner" through its own computer system and that the Banner database contains information on all students' names, addresses and ethnicity. Hartmark contends that since the PSO could have generated its own list of black male students without the intervention of Hartmark and the campus computer center the list should be considered to fall within the law enforcement records exception to FERPA, thus alleviating Dr. Hartmark of potential liability.
Putting the substantive legal argument aside, the court must examine whether this can truly be considered "new evidence." Newly discovered evidence presented in support of a motion for reconsideration must be of the type which, with due diligence, could not have been discovered by the appellants prior to entry of the judgment. Music Research, Inc. v. Vanguard Recording Soc'y, Inc., 547 F.2d 192, 196 (2d Cir. 1976); United States ex rel. Lynch v. Sandahl, 793 F. Supp. 787, 896 (N.D. Ill. 1992). In this case, the court cannot see, nor has defendant Hartmark offered, an argument as to why this information could not have been produced during the original motion. Defendant merely notes that this information has recently come to his attention. Certainly this is not enough to support ...