United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE
December 7, 2017, pro se Plaintiff Jack Sher wrote a
letter to the Court that it interprets as a Motion for
Reconsideration of the Court's January 6, 2017 Decision
and Order. ECF No. 32. For the reasons that follow,
his motion is denied.
filed this action on March 28, 2013 against his former
employer and two of its corporate officers. ECF No. 1. He
sought a default judgment against Defendants on July 15,
2013, and the Court denied that application on July 19, 2013.
ECF Nos. 9, 10.
August 15 and 23, 2013, Plaintiff and Defendants'
attorney appeared before United States Magistrate Judge
Jonathan W. Feldman to discuss potential settlement of this
matter. ECF Nos. 14, 15. After in depth proceedings where the
full details of the settlement agreement and the rights he
was waiving were made clear to Plaintiff, the parties
executed a stipulation of dismissal. ECF No. 16. This case
was closed on August 28, 2013. ECF Nos. 17, 18.
October 18, 2013, Plaintiff filed a Notice of Appeal that
purported to appeal the Court's prior denial of his
default judgment application, despite conversations before
Judge Feldman informing him that he waived that right
pursuant to the settlement agreement. ECF No. 20. Defendants
moved to dismiss the appeal, and the Second Circuit granted
that application and dismissed the appeal on February 20,
2014. ECF No. 22. Plaintiff filed another Notice of Appeal on
August 5, 2014, that again attempted to appeal the denial of
his default judgment application. ECF No. 23. The Second
Circuit dismissed that appeal on October 30, 2014. ECF No.
then brought an application to “litigate for the
Plaintiff from Default Judgment of 6/24/13” and moved
to proceed in forma pauperis. ECF Nos. 29, 30. On January 6,
2017, the Court denied those motions, and Plaintiff now seeks
reconsideration of that denial. ECF Nos. 31, 32.
Rule of Civil Procedure 60 governs relief from a court
judgment or order. Fed.R.Civ.P. 60. The standard for granting
a motion for reconsideration is “strict, and
reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the
court overlooked.” Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(citation omitted). “A motion for reconsideration
should be granted only when the [party] identifies an
intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent
manifest injustice.” Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104
(2d Cir. 2013) (citation and internal quotation marks
omitted); Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995). It is “not 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.” Analytical
Surveys, Inc., 684 F.3d at 52 (citation omitted).
Accordingly, on a motion for reconsideration a party may not
merely offer the same “arguments already briefed,
considered and decided” or “advance new facts,
issues or arguments not previously presented to the
Court.” Schonberger v. Serchuk, 742 F.Supp.
108, 119 (S.D.N.Y. 1990).
letter to the Court asks for “review and
reinstatement” of his case. ECF No. 32 at 1. Plaintiff
reiterates his belief that he should be awarded a default
judgment against Defendants. Id. He also claims that
Defendants' attorney “forced” him to settle
and “threatened” to freeze the deposit of his
Social Security checks. Id.
noted in its January 6, 2017 Decision and Order, “[a]
settlement stated on the record is one of the strongest and
most binding agreements in the field of the law and is thus
entitled to substantial deference.” Medinol Ltd. v.
Guidant Corp., 500 F.Supp.2d 345, 353 (S.D.N.Y. 2007)
(citation and internal quotation omitted). Further,
“settlement agreements are contracts and must therefore
be construed according to general principles of contract
law.” Red Ball Interior Demolition Corp. v.
Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999). In that
regard, “it is an elementary principle of contract law
that a ...