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Aretakis v. Durivage

August 12, 2009


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


On February 3, 2009, this Court issued a Memorandum-Decision and Order (MDO) granting, inter alia, Defendant Nugent's Motion to Dismiss and/or for Summary Judgment, and dismissing Aretakis's causes of action against him. Dkt. No. 69; Aretakis v. Durivage, 2009 WL 249781 (N.D.N.Y. Feb. 3, 2009). In addition to seeking dismissal of this legal action against him, Nugent further requested that he be awarded attorneys' fees as a prevailing party pursuant to 42 U.S.C. § 1983 on the grounds that this lawsuit against him was "frivolous, unreasonable, and groundless and was continued by Plaintiff after it clearly became so." Dkt. No. 53, Def. Nugent's Notice of Mot., dated Mar. 14, 2008, at p. 2. The predicate for Nugent's Motion for Attorneys' Fees is firmly rooted in the legal principle of absolute prosecutorial immunity, insofar as Nugent was acting as a special prosecutor in the mater of the State of New York v. John A. Aretakis. See generally Dkt. No. 53. The MDO addressed in considerable detail Nugent's role as special prosecutor, the defense of absolute prosecutorial immunity, the multiple causes of action lodged against him, and whether Aretakis's causes of action against Nugent were frivolous, unreasonable, and groundless. Aretakis v. Durivage, 2009 WL 249781, at **3, 15-19, 26-28, 31-32, & 33-34 (Parts I.C, II.E, II.G.1, II.H, & II.I). In addition to dismissing this legal action against Nugent, this Court found Nugent to be a prevailing party and declared that the Amended Complaint, as it related to Nugent, was frivolous, unreasonable, and groundless. The Court further directed Nugent to serve and file an application for reasonable attorneys' fees pursuant to 42 U.S.C. § 1988. Id. at *34. After a telephone conference held on March 2, 2009, this Court issued another Order establishing a timetable when Defendant Nugent's application for attorneys' fees and Aretakis's response thereto would be due.

Dkt. No. 73, Text Order, dated Mar. 2, 2009.

Complying with the Court's directive, Defendant Nugent's Attorney, Thomas J. O'Connor, Esq., filed an Affidavit, dated March 6, 2009, along with detailed billing invoices, seeking an award of attorneys' fees in the amount of $24,741.39. Dkt. No. 76. Initially, it appeared that Aretakis did not want to pursue the remainder of this litigation and forwarded to the Court a Letter Motion, dated February 10, 2009, seeking to discontinue, with prejudice, this case. Dkt. No. 70. But, Aretakis's position rapidly changed upon Defendant Nugent's notice to the Court that he declined to waive or negotiate any portion of the attorneys' fees being sought, Dkt. No. 74, and, on April 13, 2009, Aretakis filed a Cross Motion for Reconsideration and Opposition to Nugent's Motion for Attorneys' Fees, Dkt. No. 79. In support of his Motion for Reconsideration, Aretakis complains that Nugent's Motion is procedurally defective, asks this Court to reconsider our finding of frivolousness, vacate the dismissal of his causes of action, and deny the Application for Attorneys' Fees. Likewise, Nugent filed a Response in Opposition to Aretakis's Motion for Reconsideration. Dkt. No. 80.

I. The Filing of Nugent's Application for Attorneys' Fees

Aretakis's first challenge to Nugent's Application is procedural. He complains that Attorney O'Connor's Affidavit was not accompanied by a Notice of Motion as required by the Federal Rules of Civil Procedure, and furthermore, incorrectly lists the venue and court in the heading. Dkt. No. 79-2, John A. Aretakis's Aff., dated Apr. 8, 2009, at ¶¶ 5-9. Because of these defects, Aretakis proposes that this Court disregard Nugent's Application. Id. For the following reasons, the Court rejects Aretakis's plea petition.

What Aretakis fails to recognize is that Nugent's Notice of Motion for Attorneys' fees was filed on March 14, 2008, as an aspect of his Motion to Dismiss/Summary Judgment. Dkt. No. 53. After this Court found that Nugent was a prevailing party entitled to attorneys' fees, all that was required from Nugent was to complete his Application and identify those critical factors that would help the Court determine what would constitute reasonable attorneys' fees under these circumstances. In completing this obligation, Nugent only had to delineate the hours spent defending this action, describe the legal tasks performed, and inform the Court of the proper hourly rates -- functions that can be comfortably completed by an affidavit and exhibits. In this context, a Notice of Motion would be superfluous.

As a general proposition, notice of motions are required to advise a court and opposing party of the when, where, and what of a prospective motion, the most critical dates being the return date of the motion and when opposition is due. Prejudice would be visited upon a party if he did not receive proper notice of the motion. However, this is not an issue in this case. Aretakis was keenly aware when and how this Application would be filed. On March 2, 2009, the Court convened a telephone conference in which a timetable for the filing of and the opposition to this Application was clearly announced by the Court. That Conference was immediately followed by a Text Order stating that Nugent shall "file his application within fifteen (15) days of the date of this Order [and] Plaintiff Aretakis shall respond to Nugent's motion within twenty-one (21) days of being served with the Motion." Dkt. No. 73. Therefore, there was no element of surprise nor prejudice imposed upon Aretakis and he responded to the Application. And, any typographical error in the case heading is immaterial inasmuch as the parties should be fully aware that the issue of reasonable attorneys' fees falls squarely before this Court and no other.

The beauty of the Federal Rules of Civil Procedure is that they anticipate the fallibility of lawyers and the court and recognize the possibility of clerical errors. Congress granted courts the ability "to correct a clerical mistake or mistake arising from oversight whenever one is found in a judgment, order, or other part of the record." FED. R. CIV. P. 60(a) (emphasis added). Moreover, the courts have the authority to "disregard all errors and defects that do not affect any party's substantial rights." FED. R. CIV. P. 61. The Second Circuit instructs us "never to exalt form over substance... as long as [the technical pleading irregularities] neither undermine the purpose of notice pleading nor prejudice the adverse party. Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 343 (2d Cir. 2006) (quoting Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005)). Here Nugent's faux pas are trivial, easily corrected, and just as easily ignored, inasmuch as Aretakis's substantial rights were neither derogated nor trampled upon. As will become quite evident below, Aretakis was able to contest this Application. Accordingly, this procedural challenge by Aretakis is declined.

II. Motion for Reconsideration

Next, Aretakis asks this Court to reconsider our determination that the Amended Complaint as it pertains to Nugent is frivolous, unreasonable, and groundless. In doing so, Aretakis replicates the host of arguments he previously proffered to the Court in opposition to Defendant Nugent's Motion to Dismiss and/or for Summary Judgment. Dkt. No. 79 at ¶ 11(a)-(g). Nugent highlights that Aretakis's Motion for Reconsideration is untimely and lacks legal support. Dkt. No. 80.

This District's Local Rule 7.1(g) mandates that "unless Fed. R. Civ. P. 60 otherwise governs, a party may file and serve a motion for reconsideration or reargument no later than TEN CALENDAR DAYS after the entry of the challenged judgment, order, or decree." (emphasis in original). When applying this Local Rule to our case, Aretakis's Motion should have been filed on or before February 13, 2009, and not April 13, 2009.*fn1 Nevertheless, based upon the March 2nd telephone conference, the Court anticipated, as should have Nugent, that Aretakis would file a Motion for Reconsideration in tandem with his opposition to the Application for Attorneys' Fees, and thus his failure to fully comply with the mandates of our Local Rules is thus waived.

Generally, reconsideration of a court's prior decision is warranted only where the moving party demonstrates "(1) an intervening change of controlling law; (2) the availability of new evidence; and/or (3) the need to correct a clear error or prevent manifest injustice." Caidor v. Harrington, 2009 WL 799954, at *1 (N.D.N.Y. Mar. 24, 2009) (Suddaby, J.) (quoting United States v. Sanchez, 35 F.3d 673, 677 (2d Cir.), cert. denied, 514 U.S. 1038 (1995); Bartz v. Agway, Inc., 849 F. Supp. 166, 167 (N.D.N.Y. 1994) (McAvoy, C.J.) (citing Wilson v. Consol. Rail Corp., 815 F. Supp. 585 (N.D.N.Y. 1993); McLaughlin v. New York Governor's Office of Employee Relations, 784 F. Supp. 961, 965 (N.D.N.Y. 1992)); see also Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864 (1983)). Thus, the moving party must "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." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations omitted).

"[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Id. at 257. "[A]ny litigant considering bringing a motion for reconsideration must 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." Gaston v. Coughlin, 102 F. Supp. 2d 81, 83 (N.D.N.Y. 2000) (citation omitted). Of significance here, "[a] motion for reconsideration is not an opportunity for a losing party to advance new arguments to supplant those that failed in the prior briefing of the issue," Fredericks v. Chemipal, Ltd., 2007 WL 1975441, at *1 (S.D.N.Y. July 6, 2007). In other words, it is not an opportunity to take a "second bite at the apple." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). See In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) ("[R]econsideration of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.") ...

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