United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY United States District Judge.
Plaintiff Deborah Ann Buczek removed this pro se
action from state to federal court on August 27,
2015. (Docket No. 1.) The removed case is a state foreclosure
action initiated by Keybank National in New York State
Supreme Court, County of Erie. (Docket No. 1.)
2. In a
Decision and Order filed on February 27, 2017, this Court
found that Buczek's removal of this action was untimely
and consequently improper. (Docket No. 4) It therefore
ordered that the case be remanded to the New York State
Supreme Court, County of Erie. (Docket No. 4.)
March 20, 2017, Buczek filed a “Writ of Error
Objecting.” (Docket No. 5.) This 148-page document is
difficult to decipher, but appears to be most properly
construed as a Motion for Reconsideration of this Court's
February 27, 2017 Decision and Order (Docket No. 4). Given
Buczek's pro se status, this Court will also construe it
as a motion under Rules 59 and 60 of the Federal Rules of
Civil Procedure, despite the lack of a judgment.
district judge may modify pre-trial rulings and interlocutory
orders at any time prior to final judgment. See In re
United States, 733 F.2d 10, 13 (2d Cir. 1984).
Reconsideration of a prior decision is generally justified in
any one of the following three circumstances: (1) an
intervening change in controlling law; (2) new evidence; or
(3) the need to correct a clear error of law or to prevent
manifest injustice. See Virgin Atl. Airways, Ltd. v.
Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir.1992); see also Amerisure Ins. Co. v. Laserage Tech.
Corp., No. 96-CV-6313, 1998 WL 310750, *1 (W.D.N.Y. Feb.
12, 1998) (citing United States v. Adegbite, 877
F.2d 174, 178 (2d Cir. 1989)).
decision whether to grant or deny a motion to reconsider lies
in this Court's discretion. See McCarthy v.
Manson, 714 F.2d 234, 237 (2d Cir. 1983). Parties
bringing motions to reconsider “should 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.” Duane v. Spaulding and Rogers Mfg.
Inc., No. 92-CV-305, 1994 WL 494651, *1 (N.D.N.Y. Aug.
10, 1994) (quoting McDowell Oil Serv. v. Interstate Fire
and Cas., 817 F.Supp. 538, 541 (M.D.Pa. 1993)). Motions
for reconsideration are not to be used as a means to reargue
matters already disposed of by prior rulings or to put
forward additional arguments that could have been raised
before the decision. See Duane, 1994 WL 494651 at
*1. After all, a “motion for reconsideration is not a
device intended to give an unhappy litigant one additional
chance to sway the judge.” Nossek v. Bd. of Ed. of
Duanesburg Cent. Sch. Dist., No. 94-CV-219, 1994 WL
688298, *1 (N.D.N.Y. Nov. 10, 1994).
consideration of Buczek's “Writ of Error Objecting,
” this Court is not convinced that its February 27,
2017 Decision and Order must be revisited. Buczek has not
persuasively alleged any of the three circumstances under
which reconsideration may be warranted. See Virgin Atl.
Airways, 956 F.2d at 1255. Instead, she simply reargues
and reiterates her baseless positions and continues to extol
irrelevant theories. These arguments have already been raised
Buczek is obviously dissatisfied with this Court's
decision. But use of a motion to reconsider as a vehicle to
reargue a case is improper. See Nossek, 1994 WL
688298 at *1; United States v. Chiochvili, 103
F.Supp.2d 526, 530-31 (N.D.N.Y. 2000) (reargument is not a
proper basis for a motion to reconsider);
Schonberger, 742 F.Supp. at 119 (“the
provision for reargument is not designed to allow wasteful
repetition of arguments already briefed, considered and
decided”). Accordingly, reconsideration is denied.
59 (e) permits a party to seek reconsideration of a
court's judgment, so long as the party files its motion
to amend or alter the judgment no later than 28 days after
its entry. “The standard for granting such a motion is
strict, 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). Relief can also be granted to
“correct a clear error or prevent manifest
injustice.” Int'l Ore & Fertilizer Corp. v.
SGS Control Servs., Inc., 38 F.3d 1279, 1287 (2d Cir.
1994) (quoting Virgin Atl., 956 F.2d at 1255).
existence of new evidence may also justify reconsideration.
See Virgin Atl., 956 F.2d at 1255. The rule is not,
however, “a vehicle for relitigating old issues,
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). The decision to grant a Rule
59(e) motion is within the sound discretion of the court.
New York v. Holiday Inns, Inc., No. 83-CV-564S, 1993
WL 30933, at *4 (W.D.N.Y. 1993).
Here, Buczek points to no persuasive matters or controlling
caselaw that this Court overlooked, and there is no clear
error or manifest injustice in this Court's decision.
Buczek ignores that her removal of this action was untimely
and simply seeks to relitigate her failed positions. For
these reasons, Buczek's motion under Rule 59 is denied.
This Court also considers Buczek's motion under Rule 60.
Rule 60 (b) enumerates certain circumstances under which a
district court may relieve a party from a final judgment,
including (1) mistake, inadvertence, surprise, or excusable
neglect, and (2) any other reason that justifies relief.
Fed.R.Civ.P. 60 (b)(1) and (6). Generally, a Rule 60 (b)
motion should be granted only in “extraordinary
circumstances” when it is necessary to “override
the finality of judgments in the interest of justice.”
Andrulonis v. United States, 26 F.3d 1224, 1235 (2d
Cir. 1994); see also Nemaizer v. Baker, 793 F.2d 58,
61 (2d Cir. 1986) (noting that “[s]ince 60 (b) allows
extraordinary judicial relief, it is invoked only upon a
showing of exceptional circumstances”).
When evaluating a Rule 60 (b) motion, courts strive to
“strike[ ] a balance between serving the ends of
justice and preserving the finality of judgments.”
Nemaizer, 793 F.2d at 61. Thus, the Second Circuit
has set forth a three-prong test that must be satisfied for a
Rule 60 (b) motion to succeed: “(1) there must be
‘highly convincing' evidence in support of the
motion; (2) the moving party must show good cause for failing
to act sooner; and (3) the moving party must show that
granting the motion will not impose an undue hardship on any
party.” Esposito v. New York, No. 07 Civ.
11612, 2010 WL 4261396, at *2 (S.D.N.Y. Oct. 25, 2010)
(citing Kotlicky v. United States Fid. Guar. Co.,
817 F.2d 6, 9 (2d Cir. 1987)). The decision to grant relief