United States District Court, S.D. New York
July 7, 2004.
GORDAN JONAS, Plaintiff,
ALAN RICH, et al., Defendants.
The opinion of the court was delivered by: BARBARA JONES, District Judge
Plaintiff submitted several motions to this Court pro se.
First, Plaintiff moves to relieve his current counsel, Moghadassi
& Associates, from representing him in this action. This motion
In this motion, Plaintiff also requests that the Court assign
him pro bono counsel. Plaintiff has not, however, met the
requirements for appointment of pro bono counsel, including
showing that the issues in this case are sufficiently complex,
that he is unable to retain counsel by any other means, and that
the interests of justice will be served by appointment of such
counsel. See Hendricks v. Coughlin, 114 F.3d 390 (2d Cir.
1997); Cooper v. Sargenti, 877 F.2d 170 (2d Cir. 1989).
Accordingly, Plaintiff's request for pro bono counsel is
DENIED. Plaintiff, of couse, may continue pro se in this
Plaintiff also moves the Court to vacate its July 29, 2002
Order, which stayed discovery pending the resolution of Defendants' motion to dismiss, and its November 11, 2002 Order,
which dismissed the City of New York and the New York City Police
Department from this case. Plaintiff cites as basis for this
motion Federal Rule of Civil Procedure 60(b), which allows a
court to vacate a final judgment or order because of, inter
alia, (1) mistake or excusable neglect, (2) newly discovered
evidence, or (3) fraud or misrepresentation. F.R.C.P. 60(b)(1)
(3). Although Plaintiff moves to vacate both Orders under
Rule 60, the Court's July 29 Order is not subject to this Rule because
it is merely a non-final, discovery-related order.
Although it is not clear to the Court, Plaintiff appears to be
arguing that he was mistaken in consenting to the dismissal of
the City of New York and the New York City Police from this case.
Therefore, the Court would normally apply Rule 60(b)(1) to the
merits of his motion. However, Plaintiff is foreclosed from
relief under this subsection because of the one-year time limit
afforded to motions to vacate pursuant to Rule 60(b)(1).*fn1
See F.R.C.P. 60(b). Accordingly, Plaintiff's motion to vacate
the November 11 Order is DENIED. With respect to Plaintiff's motion to vacate the July 29 Order,
the Court construes it as a motion for reconsideration pursuant
to Local Civil Rule 6.3. Rule 6.3 allows parties to move a Court
to reconsider an order or opinion on grounds that the court
overlooked "controlling decisions or factual matters that were
put before it on the underlying motion . . . and which, had they
been considered, might have reasonably altered the result before
the court." Range Road Music, Inc. v. Music Sales Corp.,
90 F. Supp.2d 390, 392 (S.D.N.Y. 2000). Rule 6.3 affords only a 10-day
window to file such motion, however. Cancel v. Mazzuca, 2002 WL
1891395, *3 (S.D.N.Y. Aug. 15, 2002) ("Local Civil
Rule 6.3 requires a motion made thereunder to be `served within ten (10)
days after the docketing of the court's determination of the
original motion.'") (quoting Local Civ. R. 6.3). Therefore,
Plaintiff's motion to reconsider the Court's July 29 Order is
untimely. Moreover, even if the Court were to consider the merits
of the motion, it would nonetheless decline to allow discovery to
proceed because Plaintiff has not shown that circumstances have
changed sufficiently to warrant a lifting of the stay.
Accordingly, Plaintiff's motion DENIED.
Last, Plaintiff moves to amend his Second Amended Complaint,
pursuant to Fed.R.Civ.P. 15(a). Plaintiff does not attach his
proposed complaint, however, and did not serve several of the
defendants with the motion. See Local Civil Rule 6.1.
Plaintiff's motion to amend is therefore DENIED without prejudice to
replead properly and to serve upon all parties. Plaintiff is
strongly encouraged to contact the Pro Se Office at (212)
805-0175 for guidance on filing a proper motion to amend his