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WALZER v. MURIEL SIEBERT & CO.

September 15, 2005.

ANDREW WALZER, Plaintiff,
v.
MURIEL SIEBERT & CO., INC., NATIONAL FINANCIAL SERVICES LLC, GERARD KOSKE, RONALD BONO, & MURIEL SIEBERT Defendants.



The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge

OPINION

Presently before the Court is pro se Plaintiff's, Andrew Walzer, motion, pursuant to FED.R.CIV.P. 59(e) and L.CIV.R. 7.1(g), requesting the Court to reconsider its grant of dismissal of his complaint pursuant to the doctrine of res judicata and collateral estoppel. Plaintiff also moves for an extension of time to file his appeal of this Court's June 30, 2005 order in the Court of Appeals, and for an emergency adjournment for extension of time to file a reply and/or bar defendants' replies two weeks after the original return date. For the reasons set forth below, the Court will deny Plaintiff's motions and issue an order clarifying the terms of its dismissal contained in the June 30, 2005 order.

  I. Background

  This action arises out of alleged issuance of improper margin calls resulting in the sale of securities in Plaintiff's account with Defendant Siebert & Co., Inc. The facts relevant to the original motion to dismiss and to Plaintiff's present motion for reconsideration were recounted in the Court's June 30, 2005 Opinion ("Opinion"), and there is no need to repeat them here. Plaintiff moves for reargument of the Court's June 30, 2005 order granting Defendants' motion to dismiss his Complaint and dismissing the Complaint with prejudice and denying Plaintiff's motions to amend the Complaint, withdraw as pro se and have an attorney without prejudice to his right to designate an attorney to represent him in the action at any time, for additional time to answer Defendants' motion, to adjourn Defendants' motion, for sanctions, and for default judgment. See June 30, 2005 Order.

  II. Discussion

  In New Jersey, a motion for reconsideration or reargument is governed by L.CIV.R. 7.1(g). Whether to grant a motion for reconsideration is wholly within the district court's discretion. Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); Artista Records, Inc. v. Flea World, Inc., 356 F.Supp.2d 411, 415 (D.N.J. 2005); Williams v. Sullivan, 818 F.Supp. 92, 93 (D.N.J. 1993). The standard a party must meet to succeed on a motion for reconsideration is quite high; and success on the motion is to correct manifest errors of law or fact, to present newly discovered evidence, Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), or where facts or legal authority were presented but overlooked. Croker v. Boeing Co., 662 F.2d; Artista Records, Inc. v. Flea World, Inc., 356 F.Supp.2d at 415; Williams v. Sullivan, 818 F.Supp. at 93. Motions for reconsideration are granted sparingly, Bowers v. NCAA, 130 F.Supp. 2d 610 (D.N.J. 2001), and only when dispositive factual matters or controlling decisions of law were brought to the court's attention but not considered. McGarry v. Resolution Trust Corp., 909 F. Supp. 241, 244 (D.N.J. 1995). A motion for reconsideration may be granted if: (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). On a motion for reconsideration, it is improper for a party to "ask the court to rethink what it had already thought through — rightly or wrongly," In re Tutu Wells Contamination Litig., 162 F.R.D. 81, 88 (D.V.I. 1995), and "in the absence of newly discovered, non-cumulative evidence, the parties should not be permitted to reargue previous rulings made in the case." Oritani Sav. & Loan Ass'n v. Fidelity & Deposit Co. of Maryland, 744 F.Supp. 1311, 1314 (D.N.J. 1990).

  Pursuant to L.CIV.R. 7.1(g), "[a] motion for reargument shall be served and filed within 10 days after the entry of the order or judgment on the original motion by the Judge . . ." In this case, the Court entered its order and opinion on June 30, 2005, and Plaintiff filed for reargument on July 18, 2005. This Court has held that "the time period to file a motion for reconsideration begins to run after the entry of the order or judgment, not upon service of receipt", Werner v. Terhune, Civ. No. 93-4798 (Letter Opinion Filed March 26, 1999); however, it will entertain Plaintiff's arguments despite the untimely filing of this motion.

  Plaintiff submits numerous papers, many arguments in support of his motion for reargument. Based on the papers he submitted, Plaintiff appears to be moving for reargument on the second and third grounds for ordering reconsideration.

  A. Evidence not previously available has become available.

  Evidence available at the time of original decision will not be considered on a motion for reconsideration. See Damiano v. Sony Music Entertainment, 975 F.Supp. 623, 636 (D.N.J. 1997). Plaintiff submits along with his moving papers a copy of a fax from Hiram D. Gordon of the new York law firm Janvey, Gordon, Herlands, Randolph & Cox LLP. The fax is addressed to Lisa Walzer, Plaintiff's ex-wife, and a copy of a 1991 joint customer agreement with Lisa Walzer and Plaintiff as signatories is included. See Walzer, July 5, 2005. The evidence that Plaintiff submits, namely a copy of the 1991 joint agreement is not relevant to his case before this Court or relevant to the Court's disposition of the matter previously before it.

  No new evidence has been presented with respect to the issue of arbitrability and the terms of the joint customer agreement were not in issue when this Court decided the prior motion to dismiss. Plaintiff's motion cannot succeed on the second ground.

  B. Clear Error of Law or Manifest Injustice

  Reargument is not appropriate where the motion essentially raises only a party's disagreement with the court's initial decision. See Florham Park Chevron, Inc. v. Chevron ...


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