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David Murphy, Jr v. Flagstar Bank

July 3, 2012




Presently before the Court is pro se Plaintiff David Murphy, Jr. ("Plaintiff")'s Motion for reconsideration of the Court's September 29, 2011 Memorandum-Decision and Order. Dkt. Nos. 32 ("Motion"), 29 ("September Order"). On November 14, 2011, Defendant filed an Affidavit in opposition to the Motion. Dkt. No. 34 ("Opposition"). For the reasons that follow, the Court denies Plaintiff's Motion.


The Court presumes the parties' familiarity with the facts and procedural history of this case, which was initiated by Plaintiff seeking to enjoin Defendant Flagstar Bank, FSB ("Defendant") from foreclosing on Plaintiff's property. Dkt. No. 1 ("Complaint"). The Court denied Plaintiff's request for a temporary restraining order on June 2, 2010. Dkt. No. 4. Defendant filed a Motion to dismiss Plaintiff's Complaint on November 2, 2010 and a Motion for summary judgment on March 28, 2011. Dkt. Nos. 17 ("Motion to dismiss"), 24 ("Motion for summary judgment"). The Court granted Defendant's Motion to dismiss and dismissed Defendant's Motion for summary judgment as moot on September 29, 2011. September Order. Plaintiff then filed the instant Motion for reconsideration. For a complete history of this case, reference is made to the September Order.


Where no Federal Rule of Civil Procedure is directly cited in a Motion for reconsideration, it is generally construed by the Court as either a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from a judgment or order. Ass'n for Retarded Citizens v. Thorne, 68 F.3d 547, 553 (2d Cir. 1995). A Rule 59(e) motion "must be filed no later than 28 days after the entry of the judgment," FED. R. CIV. P. 59(e), and "an untimely motion for reconsideration is treated as a Rule 60(b) motion." Lora v. O'Heaney, 602 F.3d 106, 111 (2d Cir. 2010); see also Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991).

Here, Plaintiff's Motion was filed 29 days after final judgment was entered, and therefore was not timely filed pursuant to Rule 59(e). See FED. R. CIV. P. 6(a)(1)(A)-(C); 5 U.S.C. § 6103; Mot. ¶ 5; September Order. While the Court is mindful that Plaintiff's Motion for reconsideration is untimely by only one day, "a court must not extend time to act under Rules . . . 59(b), (d), and (e) and 60(b)." FED. R. CIV. P. 6(b)(2). This rule limiting the discretion of the Court is "mandatory and jurisdictional and . . . cannot be circumvented regardless of excuse." Rodick v. City of Schenectady, 1 F.3d 1341, 1346 (2d Cir. 1993) (citation and quotation omitted). Further, Plaintiff's pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006); see also Branum, 927 F.2d at 704 (pro se Plaintiff's Rule 59(e) motion was untimely when it was filed 18 days after filing deadline).

However, Plaintiff's motion is timely under Rule 60(b) which provides that a motion "must be made within a reasonable time" and in some circumstances "no more than a year after the entry of the judgment or order. . . ." FED. R. CIV. P. 60(c)(1). Accordingly, the Court construes Plaintiff's Motion as one brought pursuant to Rule 60(b).

The Court applies a strict standard when reviewing a motion for reconsideration 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." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The court may grant a motion for reconsideration under Rule 60(b) for the following reasons: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . . ; or (6) any other reason that justifies relief." FED. R. CIV. P. 60(b). Reconsideration is not appropriate "when the moving party seeks solely to relitigate an issue already decided." Shrader, 70 F.3d at 257.


Plaintiff here seeks reconsideration on the grounds that "the judgment contains a clear error of law, and reconsideration is necessary to prevent manifest injustice." Mot. ¶ 6. Plaintiff argues that the Court's dismissal of the Complaint was improper because "having proven through discovery that Defendant failed to disclose and prove all fees at closing, [Plaintiff's] TILA and RESPA [claims] are statutorily no longer considered [t]ime[-][b]arred." Id. ¶ 10. Plaintiff states that "in Plaintiff's original complaint, Plaintiff made the accusation that he was never fully disclosed as per the fees charged in the closing paperwork. Discovery has shown that although some fees have allegedly been proven, there were more than one that weren't shown to have any justification, receipts, or explanation as to proof of their legitimacy." Id. ¶ 7. Further, Plaintiff argues that through the "rule of adverse inference . . . by failing to prove just one of the fees alleged to be false, [Defendant has admitted] that Plaintiff's claims of not being informed are true." Id.

Plaintiff is improperly seeking reexamination by the Court of an issue already decided. Plaintiff's Motion alleges that discovery has "proven" allegations in his original Complaint regarding Defendant's failure to disclose, and therefore Plaintiff's TILA and RESPA claims should be "equitably tolled." Id. ¶¶ 7, 9. However, the Court previously addressed this claim in the September Order and found that Plaintiff failed to exercise the reasonable diligence required to allow for the statute of limitations on Plaintiff's claims to be equitably tolled based on fraudulent concealment.*fn1

September Order at 3.

Though not directly alleged in Plaintiff's Motion for reconsideration, the availability of evidence not previously available is a recognized ground upon which a court may grant a motion for reconsideration. The Court notes that Plaintiff does allege that discovery has resulted in new evidence "prov[ing] . . . Plaintiff's claims of not being informed are true." Mot. ΒΆ 7. However, motions for reconsideration on these grounds "may be granted only 'when the movant presents newly discovered evidence that could not have been discovered earlier and that is relevant to the merits of the litigation.'" Jeffreys v. United Technologies Corp., 357 F. App'x 370, 372 (2d Cir. 2009) (citations omitted). "To succeed on a motion for reconsideration, Defendant must prove that the newly discovered evidence 'is material and not merely cumulative' and that the new evidence 'will probably ...

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