The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Petitioner Jose Roman ("Roman" or "Petitioner"), represented by pro bono counsel, has filed a pleading captioned as a Motion for Reconsideration (Dkt #33) of the judgment (Dkt ## 31 & 32) of this Court dismissing his petition for a writ of habeas corpus and denying a certificate of appealability ("COA"). Respondent submitted a pleading captioned "Intervenor's Affirmation in Opposition to Petitioner's Motion for Rehearing and Reargument" (Dkt #36).*fn1
The Court first must address whether it retains jurisdiction over Petitioner's Motion for Reconsideration, since Petitioner has filed a Notice of Appeal to the United States Court of Appeals for the Second Circuit. "The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam), superseded on other grounds by FED. R. APP. P. 4(a)(4)(B). However, when a party files a motion pursuant to Federal Rule of Civil Procedure ("F.R.C.P.") 60 or 59 within twenty-eight (28) days after entry of final judgment, and before filing a notice of appeal, the district court retains jurisdiction to decide the motion. De La Rosa v. Rocco, No. 07 Civ. 7577(PKC)(KNF), 2011 WL 2421283, at *1 (S.D.N.Y. June 8, 2011) (citing De Oliveira v. Bessemer Trust Co., N.A., 2010 WL 2541230, at *1 (S.D.N.Y. June 14, 2010); FED. R. APP. P. 4(a)(4)(B)(I)).
Here, Roman filed his Notice of Appeal and Motion for Reconsideration on the same day. However, CM/ECF (the Court's electronic filing system) reveals that the Motion for Reconsideration was docketed prior to the Notice of Appeal. Therefore, the Court concludes that there is no jurisdictional bar to its consideration of Petitioner's motion.
While the Motion for Consideration was pending, the Second Circuit Court of Appeals denied Petitioner's request for a COA and dismissed the appeal. Although this event arguably moots Petitioner's Motion for Reconsideration, in the interests of fairness and completeness, this Court will consider the merits of Petitioner's reconsideration motion.
B. Whether the Motion is Brought Under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure
Although he captioned his pleading as a "Motion for Reconsideration," Petitioner did not identify the applicable Federal Rule of Civil Procedure under which he seeks relief. Motions for reconsideration may be brought pursuant to F.R.C.P. 59(e) and 60(b). Farinella v. Ebay, Inc., No. 05-CV-1720, 2011 WL 1239959, at *1 (E.D.N.Y. Mar. 30, 2011) (citing Shearard v. Geithner, No. 09--CV--0963 (JS)(ETB), 2010 WL 2243414, at *1 (E.D.N.Y. May 30, 2010)). The motion, having been brought twenty (20) days after the final judgment was entered dismissing the petition was filed within the twenty-eight (28) day time-limit prescribed in F.R.C.P. 59(e) as amended in 2009. See FED. R. CIV. P.
59(e) ("A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.").
"[W]here a post-judgment motion is timely filed and 'calls into question the correctness of that judgment it should be treated as a motion under Rule 59(e), however it may be formally styled.'" Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982) (quoting Dove v. Codesco, 569 F.2d 807, 809 (4th Cir. 1978)). Petitioner's post-judgment motion was timely filed under F.R.C.P. 59(e), and a review of his arguments indicate that the motion for reconsideration "clearly call[s] into question the correctness of the dismissal[,]" Lyell Theatre Corp., 682 F.2d at 41, of his petition. Therefore, the Court shall treat Petitioner's application as a motion to alter the judgment under F.R.C.P. 59(e).
C. Standard of Review on a F.R.C.P. 59(e) Motion
Motions for reconsideration are assessed under a very strict standard. See, e.g., Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (noting the very high burden a movant faces on a reconsideration motion in the context of a resubmitted motion to dismiss, analyzed under the "law of the case" doctrine). Because "[r]econsideration of a previous order by the Court is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources[,]" R.F.M.A.S., Inc. v. So, 640 F. Supp.2d 506, 509 (S.D.N.Y. 2009) (quotation marks and citation omitted), motions for reconsideration are granted only where the moving party is able to point to some controlling decision or other material "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); accord, e.g., Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151, (S.D.N.Y. 1999). Although a court may ...