United States District Court, S.D. New York
August 22, 2005.
THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK a/k/a COLUMBIA UNIVERSITY Plaintiff,
ALBERTO BETANCOURT, Defendant.
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
Defendant Alberto Betancourt has moved for reconsideration or
vacating of this court's October 7 and October 29, 2004 orders
pursuant to Fed.R.Civ.P. 59(e) and Local Rule 6.3, as well as
for an order certifying an interlocutory appeal and a stay of
proceedings in this matter pending an interlocutory appeal or
petition for mandamus before the Second Circuit Court of Appeals.
Plaintiff Columbia University opposes these motions.
Defendant's motion for reconsideration or vacating of the
earlier orders is denied. Defendant's motion for certification of
an interlocutory appeal and a stay is denied as moot.
Plaintiff Columbia University brought this action against
defendant Alberto Betancourt in the Civil Court of the City of
New York alleging that defendant owes plaintiff unpaid tuition. On May 12, 2004
defendant removed the action to this federal district court.
Plaintiff promptly moved for an order remanding the action to the
state court. Plaintiff also sought an award of costs and
expenses, including attorney fees, incurred as a result of the
By an order dated October 7, 2004 this court granted both of
plaintiff's motions, and ordered plaintiff to submit an
application regarding the amount of costs and expenses. The fees
application will not be addressed in this opinion. The order
dated October 29, 2004 put into effect the October 7 order
regarding the remand.
Defendant promptly appealed the orders. On October 27 defendant
noticed his appeal of the October 7 order, and on December 1
defendant noticed his appeal of the October 29 order.
Also, on November 22, 2004 defendant moved for reargument,
reconsideration, or vacating of the October 7 and October 29
Finally, defendant filed a petition for mandamus in the Court
of Appeals on November 12, seeking an order disqualifying and
removing Judge Griesa from both this action and another action
involving Betancourt and Columbia University.
On November 15 defendant moved in the District Court for an order certifying an interlocutory appeal and for a stay of this
action pending the Court of Appeals' resolution of the petition
THE DECISIONS OF THE COURT OF APPEALS
On April 11, 2005 the Court of Appeals dismissed defendant's
appeals of the October 7 and October 29 orders "because they lack
an arguable basis in fact or law." The Trustees of Columbia
University v. Betancourt, No. 04-6362-cv (2d Cir. Apr. 11,
2005). The mandate issued on June 1, 2005.
Also on April 11, the Court of Appeals denied defendant's
motion for mandamus because petitioners failed to demonstrate a
clear abuse of discretion warranting such relief. In re: Ada
Rodriguez, et al., No. 04-5991-op (2d Cir. Apr. 11, 2005). The
mandate issued on April 11, 2005.
Jurisdiction follows the mandate. As the Court of Appeals has
made clear, the effect of the mandate "is to bring the
proceedings in a case on appeal in our Court to a close and to
remove it from the jurisdiction of this Court, returning it to
the forum from whence it came." Ostrer v. United States,
584 F.2d 594, 598 (2d Cir. 1978). Since the Court of Appeals has
issued mandates disposing of each of defendant's appellate
applications, jurisdiction over this action now lies entirely
with this court. Local Rule 6.3 requires that any motion for reconsideration or
reargument shall be served within 10 days after the docketing of
the court's determination of the original motion. Only the
October 7 order is challengeable under Local Rule 6.3, since the
October 29 order does not decide any motion. Rather, the October
29 order merely gives effect to the decision encapsulated in the
court's October 7 order in this sense it is more appropriately
a judgment challengeable pursuant to Rule 59(e). The October 7
order was docketed on October 13, 2004. Pursuant to Local Rule
6.3, defendant had until October 27, 2004 to file a motion for
reconsideration. Defendant's motion under Local Rule 6.3 is
untimely, since it was not filed until November 22.
Rule 59(e) requires that any motion to alter or amend a
judgment shall be filed no later than 10 days after entry of
judgment. Although defendant challenges both the October 7 and
October 29 orders, only the October 29 order is a judgment
challengeable by a Rule 59(e) motion. The October 29 order was
docketed on November 5, 2004. Pursuant to Rule 6(a), defendant
had until November 22, 2004 to file the motion. Defendant's Rule
59(e) motion was timely filed, since it was filed on November 22.
To prevail on a motion for reconsideration under Rule 59(e),
defendant must present facts or controlling law that the court
overlooked which may have materially influenced its earlier
decision. Griffin Industries, Inc. v. Petrojam, Ltd., 72 F.Supp.2d 365, 368 (S.D.N.Y. 1999).
The moving party must bear a heavy burden, because such motions
are not intended to be vehicles for "presenting the case under
new theories, securing a rehearing on the merits, or otherwise
taking a second bite at the apple." Sequa Corp. v. GBJ Corp.,
156 F.3d 136, 144 (2d Cir. 1998). Defendant has not made such a
Defendant's motion for an order certifying an interlocutory
appeal and for a stay pending the Court of Appeals consideration
of his petition for mandamus is denied as moot. The Court of
Appeals has considered the petition. The Court of Appeals issued
its mandate denying the petition on April 11, 2005. Therefore,
there is no longer any need for a certification or for a stay.
Defendant's motions are denied.
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