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