Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Diaz v. Artus

United States District Court, W.D. New York

February 3, 2017

WALTER DIAZ, 94-A-5053, (a/k/a ERIC ROGERS), Plaintiff,
v.
SUPERINTENDENT D. ARTUS, et al., Defendants.

          DECISION AND ORDER

          JEREMIAH J. MCCARTHY United States Magistrate Judge.

         Before me is plaintiff's motion [1');">194] for reconsideration/de novo review of my January 23, 201');">17 Text Order [1');">190], which issued following a conference with counsel on January 20, 201');">17 [1');">189, 1');">191');">1]. For the following reasons, the motion is denied.

         ANALYSIS

         In seeking de novo review, counsel argues that “going into the January 20, 201');">17 informal conference, it was Plaintiff's expectation that he would be given the opportunity to formally brief this issue before the Court ruled”. Plaintiff's Memorandum of Law [1');">194-1');">1], p. 1');">10 of 20. Under the circumstances, that expectation was not reasonable. By e-mail dated January 1');">17, 201');">17 [1');">195], I asked whether the parties wished to proceed informally, or whether formal motion practice would be necessary. No one indicated that formal motion practice would be required. At the outset of the January 20 conference, I stated that “everybody indicated that it would be appropriate to proceed by the informal conference method in lieu of a formal motion at this time. So that's what I will do” ([1');">191');">1], p. 4). Again, no one objected.

         In fact, after I ruled that a further deposition of plaintiff would be allowed ([1');">191');">1], pp. 1');">13 et seq.), counsel for plaintiff did not request an opportunity to formally brief the issue, but merely asked that I “clarify what the limitation on the deposition would be” (id., p. 1');">17), which I proceeded to do, stating that “I think it's appropriate to allow new counsel to question the plaintiff to fill in the gaps with respect to their individual clients, but not to cover in detail and in general all the territory that's been covered before” (id., pp. 1');">19-20). Had plaintiff truly believed that the January 20 conference was merely an informal “dry run”, I would have expected to hear that during the conference, or at the latest on January 23, 201');">17, when my Text Order issued [1');">190].

         Nor do I see a basis to reconsider Text Order. In deciding whether to allow another deposition of a party, “[t]he Court has discretion to make a determination which is fair and equitable under all the relevant circumstances”. Ganci v. U.S. Limousine Service, Ltd., 201');">11');">1 WL 4407461');">1, *2 (E.D.N.Y. 201');">11');">1). For the reasons already discussed [1');">191');">1], I believe that I have done so. A party seeking reconsideration 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”. Plaintiff's Memorandum of Law [1');">194-1');">1], p. 1');">11');">1 of 20 (quoting Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1');">1995)). None of the arguments now advanced by plaintiff would lead me to change my mind.

         CONCLUSION

         For these reasons, plaintiff's motion [1');">194] is denied, and his deposition shall ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.