United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. KOELTL, District Judge
action against the Federal Deposit Insurance Corporation (the
“FDIC”) arises from the efforts by the pro
se plaintiff, Richard Caires, to track down the
whereabouts of a certain loan.
Memorandum Opinion and Order dated April 18, 2017, this Court
granted the FDIC's motion pursuant to Federal Rule of
Civil Procedure 12(b)(1) to dismiss the plaintiff's
declaratory relief claims for want of subject matter
jurisdiction. Caires v. Fed. Deposit Ins. Corp., No.
16-CV-02651 (JGK), 2017 WL 1393735, at *6-7 (S.D.N.Y. Apr.
18, 2017). The Court also granted the FDIC's motion
pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss the claim under the Fourteenth Amendment of the
United States Constitution for failure to state a claim to
the extent that the Court had jurisdiction over that claim.
Id. Familiarity with that decision, and the facts,
underlying claims, and procedural history of this case is
to the Memorandum Opinion and Order, the Clerk entered
judgment dismissing the case on April 18, 2017.
plaintiff has filed a “request for leave.”
See Dkt. 35. Construing the pro se
plaintiff's papers liberally, the request seeks to vacate
the judgment of dismissal and reopen the case pursuant to
Rule 59(e) and Rule 60(b) of the Federal Rules of Civil
Procedure, and for leave to file an amended complaint. To
justify the applications, the plaintiff attaches a complaint
that he filed against the FDIC on May 22, 2017, in the United
States District Court for the District of Columbia. The
plaintiff argues that, in that complaint, he has asserted
tort claims against the FDIC that are unrelated to the claims
dismissed in the Memorandum Opinion and Order dated April 18,
2017. The plaintiff contends that he should be allowed to
assert those claims in this action.
following reasons, the plaintiff's applications are
motion pursuant to Federal Rule of Civil Procedure 59(e) is
untimely. Motions to alter or amend a judgment pursuant to
Rule 59(e) must be brought within twenty-eight days of the
entry of the judgment. Fed.R.Civ.P. 59(e); see also Smith
v. City of N.Y., No. 12 CIV. 8131 (JGK), 2014 WL
2575778, at *1 (S.D.N.Y. June 9, 2014). The plaintiff filed
the present motion on May 22, 2017, outside the twenty-eight
event, the application is without merit. To justify relief
under Federal Rule of Civil Procedure 59(e), the movant must
demonstrate that the Court overlooked “controlling law
or factual matters” that had been previously put before
it. R.F.M.A.S., Inc. v. Mimi So, 640 F.Supp.2d 506,
509 (S.D.N.Y. 2009); Padilla v. Maersk Line, Ltd.,
636 F.Supp.2d 256, 258-59 (S.D.N.Y. 2009). “Such
motions must be narrowly construed and strictly applied in
order to discourage litigants from making repetitive
arguments on issues that have been thoroughly considered by
the court.” Range Road Music, Inc. v. Music Sales
Corp., 90 F.Supp.2d 390, 391-92 (S.D.N.Y. 2000); see
also Quinones v. N.Y. City Legal Police Dep't, No.
14 CV. 6253 (JGK), 2014 WL 6907581, at *1 (S.D.N.Y. Dec. 6,
plaintiff has failed to demonstrate that the Court overlooked
any controlling decisions or factual matters with respect to
the dismissed action. The proffered basis for reopening the
action is not that the Court erred in dismissing the action,
but that the plaintiff believes that he has tort claims
against the FDIC that were not previously asserted in this
action. That is not a basis to vacate the judgment.
motion pursuant to Federal Rule of Civil Procedure 60(b) is
likewise without merit. Under Federal Rule of Civil Procedure
60(b), a party may seek relief from a district court's
order or judgment 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 (whether previously
called intrinsic or extrinsic), misrepresentation, or other
misconduct of an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason justifying relief.
the papers liberally, the plaintiff has not offered a basis
for relief under the first five clauses of the Rule. Nor has
the plaintiff demonstrated that he is entitled to relief
under the sixth clause. Under that clause, the movant must
show that the motion was filed within a “reasonable
time” and that “extraordinary circumstances [ ]
warrant relief.” Old Republic Ins. Co. v. Pac. Fin.
Servs. of Am., Inc., 301 F.3d 54, 59 (2d Cir. 2002) (per
curiam) (internal quotation marks omitted). The plaintiff has
not alleged any facts demonstrating that extraordinary
circumstances warrant relief under Rule 60(b)(6). See
Ackermann v. United States, 340 U.S. 193, 199-202
(1950); see also Quinones, 2014 WL 6907581, at *2.
The plaintiff's argument that he has other claims against
the FDIC is not a sufficient basis for relief.
plaintiff's motion for leave to file a new complaint is
also without merit. The “grant of leave to amend the
pleadings pursuant to Rule 15(a) is within the discretion of
the trial court.” Graham v. Select Portfolio
Servicing, Inc., 156 F.Supp.3d 491, 516 (S.D.N.Y. 2016)
(citations omitted). However, “as is the case here,
once judgment has been entered, ‘the filing of an
amended complaint is not permissible until judgment is set
aside or vacated pursuant to Fed.R.Civ.P. 59(e) or
60(b).'” In re Evergreen Mut. Funds Fee
Litig., 240 F.R.D. 115, 119-20 (S.D.N.Y. 2007) (quoting
Nat'l Petrochemical Co. of Iran v. M/T Stolt
Sheaf, 930 F.2d 240, 244 (2d Cir. 1991)).
the plaintiff has failed to demonstrate that the judgment
should be vacated under either Rule 59(e) or Rule 60(b), it
follows that he cannot file an amended complaint. In any
event, the plaintiff has failed to demonstrate that amendment
would be anything but futile. The plaintiff has failed to
show that the claims that he now seeks to assert would not be
subject to the rulings dismissing his claims in the
Memorandum Opinion and ...