United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
J. NATHAN UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Heena Shim-Larkin's motion for
reconsideration of this Court's October 25, 2017 order
denying her objections to the Magistrate Judge's order
denying her motion to compel. For the reasons that follow,
that motion is denied.
Heena Shim-Larkin, proceeding pro se and in
forma pauperis, filed suit against the City of New York
in August 2016 alleging employment discrimination under Title
VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act of 1990, New York State Human Rights Law,
and New York City Human Rights Law. See Complaint,
Dkt. No. 2; Amended Complaint, Dkt. No. 30. On November 23,
2016, the Court referred the case to Magistrate Judge Kevin
Nathaniel Fox for general pretrial services, including
scheduling, discovery, nondispositive pretrial motions, and
settlement. Dkt. No. 22.
February 27, 2017, Plaintiff filed a letter addressed to
Magistrate Judge Fox stating that the Defendant had provided
insufficient information in its initial disclosures by naming
two potential defense witnesses but failing to provide any
contact information for the two men and instead stating that
they "should be contacted only through Defendant's
counsel." Letter, Dkt. No. 45, at 1. Plaintiff stated
that because she was a. pro se litigant rather than
an attorney, she could "seek information directly from
[the witnesses], even if they are represented by a
the Magistrate Judge ordered Ms. Shim-Larkin to contact one
of the witnesses (a current City employee) only through
defense counsel, Transcript, Dkt. No. 51, at 11, Plaintiff
filed a motion to compel personal contact information for
that witness, Mot. to Compel, Dkt. No. 49. Magistrate Judge
Fox denied Plaintiffs motion to compel, concluding that the
City had provided the contact information consistent with his
prior ruling. Memorandum and Order, Dkt. No. 70, at 7-8. Ms.
Shim-Larkin timely filed objections to this order, Objections
to Magistrate Judge's Order, Dkt. No. 72, which this
Court denied, Memorandum & Order, Dkt. No. 133. The
Plaintiff then filed a motion for this Court to reconsider
its ruling. Motion for Reconsideration, Dkt. No. 136.
district, "[m]otions for reconsideration are governed by
... Local Rule 6.3." Sullivan v. City of New
York, No. 14-CV-1334 (JMF), 2015 WL 5025296, at *3
(S.D.N.Y. Aug. 25, 2015). On a motion for reargument, a party
"may not advance new facts, issues or arguments not
previously presented to the court." In re Integrated
Res. Real Estate Ltd. P'ships Sec. Litig, 850
F.Supp. 1105, 1151 (S.D.N.Y. 1993) (quoting Litton Indus,
v. Lehman Bros. Kuhn Loeb, Inc., No. 86-cv-6447 (JMC),
1989 WL 162315, at *4 (S.D.N.Y. Aug. 4, 1989)); see also
Caribbean Trading & Fid. Corp. v. Nigerian Nat'l
Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991) (the
Local Rule governing motions for reconsideration
"preclude[s] arguments raised for the first time on a
motion for reconsideration"). "A movant for
reconsideration bears the heavy burden of demonstrating that
there has been an intervening change of controlling law, that
new evidence has become available, or that there is a need to
correct a clear error or prevent manifest injustice."
Quinn v. Altria Grp., Inc., No. 07-cv-8783 (LTS)
(RLE), 2008 WL 3518462, at *1 (S.D.N.Y. Aug. 1, 2008).
"[A] motion to reconsider should not be granted where
the moving party seeks solely to relitigate an issue already
decided." Shrader v. CSX Tramp., Inc., 70 F.3d
255, 257 (2d Cir. 1995).
raises four distinct arguments in favor of her motion for
reconsideration. None is meritorious.
first argues that this Court "overlooked Supreme Court
decision[s] that [the] judicial role is interpreting the law,
not creating the law." Memo, in Support of Motion to
Reconsider ("Support"), Dkt. No. 137, at 2
(formatting omitted). Citing American Trucking
Associations, Inc. v. Scheiner, 483 U.S. 266 (1987), Ms.
Shim-Larkin argues that because no binding authority required
Magistrate Judge Fox to prohibit her from contacting defense
witnesses through defense counsel, his order was
"'creating' the law, not 'interpreting'
the law." Support at 2-3. This argument was not
presented in Plaintiffs original objections to the Magistrate
Judge's order, and thus this Court need not consider it.
See In re Integrated Res. Real Estate Ltd., 850
F.Supp. at 1151. In any event, this argument is in error:
courts must frequently decide issues where no binding
precedent dictates the case's outcome. In this very case,
there is no precedent requiring pro se litigants to
contact defense witnesses through defense counsel, nor is
there precedent disavowing that pro se litigants
must contact such witnesses through defense counsel. If Ms.
Shim-Larkin's assertion were correct, this Court (as well
as the Magistrate Judge) would be without authority to make
any ruling addressing her request to contact defense
witnesses because a ruling for either party would
"create" new law. Obviously, under such a rule,
discovery in myriad litigation in this district would grind
to a halt.
next argues that the Court overlooked that she has a right
under the First Amendment to "associate with anyone and
speak to anyone." Support at 4-5. This argument was not
raised in her objections to Magistrate Judge Fox's order,
and again the Court need not credit it. Even if the Court did
rule on this basis, it is well-established that the First
Amendment may be limited by rules of discovery. See,
e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32
(1984) ("As the Rules authorizing discovery were adopted
by the state legislature, the processes thereunder are a
matter of legislative grace. A litigant has no First
Amendment right of access to information made available only
for purposes of trying his suit."); Zemel v.
Rusk, 381 U.S. 1, 16-17 (1965) ("The right to speak
and publish does not carry with it the unrestrained right to
gather information."); Sony Music Entm't Inc. v.
Does 1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004)
(holding that disclosure of alleged copyright infringers by
third-party ISPs did not violate the First Amendment). For
this reason, courts in this district have previously held
that a pro se plaintiff may be restricted from
directly contacting witnesses. See Okoumou v.
Horizon, No. 03-cv-1606 (LAK) (HBP), 2004 WL 2149118, at
*2 (S.D.N.Y. Sept. 23, 2004).
Plaintiff argues that this Court failed to liberally construe
her objections. Support at 5-6. The rule of liberally
construing pro se pleadings requires courts to
liberally construe the arguments that the pleadings could
plausibly suggest. See Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 472 (2d Cir. 2006) (per curiam).
Ms. Shim-Larkin does not identify any argument that her
objections suggested that this Court failed to credit.
Rather, she appears to argue that if this Court realized in
ruling on her objections that her motion to compel was
intended to object to Magistrate Judge Fox's prior
ruling, this Court should have retroactively treated it as
such. See Support at 6 ("[I]f pro se
litigant's intention becomes clearer at the objection
stage . . ., then pro se pleading should be
construed liberally at the objection stage.")- This
argument ignores that this Court is required to review the
Magistrate Judge's order only for clear error. 28 U.S.C.
§ 636(b)(1)(A). In other words, this Court may not
reevaluate the Plaintiffs pleadings before the Magistrate
Judge and interpret them however it thinks is best. It may
only look at the Magistrate Judge's findings and decide
if they were clearly mistaken. In this case, the Magistrate
Judge's findings were not clearly mistaken.
Plaintiff argues that Magistrate Judge Fox "clearly knew
Plaintiffs intention regarding direct contact" and thus
clearly erred. Support at 7. This is, in effect, the same
argument the Plaintiff raised in her objections, and for the
reasons set forth in the Court's order denying those
objections, see ...