United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY UNITED STATES DISTRICT JUDGE.
September 22, 2017, this Court accepted the Report and
Recommendation filed by the Honorable Michael J. Roemer,
United States Magistrate Judge, and denied Defendants'
Motion for Summary Judgment in part and granted it in part.
(Docket No. 244.) Specifically, this Court granted
Defendants' request for summary judgment on
Plaintiff's state and federal disparate-impact and
retaliation claims, but denied their request for summary
judgment on Plaintiff's state and federal failure-to-hire
October 20, 2017, Plaintiff filed a Motion for
Reconsideration of this Court's Order accepting Judge
Roemer's Report and Recommendation, under Rules 59 and 60
of the Federal Rules of Civil Procedure. (Docket No. 245.)
Alternatively, Plaintiff seeks entry of judgment on her state
and federal disparate-impact and retaliation claims under
Rule 54 so that she can file an immediate appeal to the
United States Court of Appeals for the Second Circuit.
(Id.) Defendants oppose reconsideration. For the
following reasons, Plaintiff's motion is denied in its
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 Plaintiff's motion, this Court is not
convinced that its September 22, 2017 Order must be
revisited. Plaintiff requests that this Court reconsider its
ruling granting summary judgment to Defendants on her
retaliation claims, but she 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
objections to Judge Roemer's Report and Recommendation.
These arguments have already been raised, considered, and
Plaintiff is obviously dissatisfied with this Court's
decision to accept Judge Roemer's Report and
Recommendation. 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 Cmatters, 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, Aa 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, although Plaintiff's motion is timely, she 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 Order. Plaintiff simply seeks
to relitigate her unsuccessful positions. For these reasons,
Plaintiff's motion under Rule 59 is denied.
This Court also considers Plaintiff'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
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
under Rule 60 (b) is left to the ''sound
discretion'' of the district court. In re
Lawrence, 293 F.3d 615, 623 (2d Cir. 2002) (citing
Parker v. Broad. Music, Inc., 289 F.2d 313, 314 (2d
Here again, Plaintiff does not meet the high standard for
relief under Rule 60. No extraordinary circumstances are
presented; no mistakes have been made; and no highly
convincing evidence warranting a change in this Court's
decision has been submitted. Moreover, no final judgment has
been entered. Consequently, Plaintiff's motion under Rule
60 is denied.
Finally, this Court finds that Plaintiff's alternate
request for entry of judgment on her dismissed claims should
be denied. Under Rule 54 (b), a court may direct entry of a
final judgment as to one or more (but not all) claims, if the
court expressly determines that there is no just reason for
delay. To grant a motion under Rule 54 (b) “(1)
multiple claims or multiple parties must be
present, (2) at least one claim, or the rights and
liabilities of at least one party, must be finally decided
within the meaning of 28 U.S.C. § 1291, and (3) the
district court must make ‘an express determination that
there is no just reason for delay' and expressly direct
the clerk to ...