United States District Court, D. New Jersey
September 15, 2005.
ANDREW WALZER, Plaintiff,
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
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 U.S.A.,
Inc., 680 F.Supp. 159, 162 (D.N.J. 1988).
i. Retaining Counsel
Plaintiff contends that it is unjust that he was not permitted
to retain counsel in this matter and that the court should
adjourn the current matter until he is able to retain counsel.
In its Opinion, this Court stated, "[p]laintiff is perfectly
free at anytime to abandon his pro se status and retain an
attorney, but he has failed to do so after many months of
litigation." (Opinion at 12, FN 5). In December 2003, Plaintiff,
filed his action against Siebert in the New York State Supreme
Court. That court held a hearing in 2004 during which Plaintiff
discharged his counsel and proceeded pro se. Plaintiff, still
pro se, filed his Complaint in this court on November 17, 2004.
The following year, on March 22, 2005, Defendants Siebert, Bono,
Koske, and Ms. Siebert filed their motion to dismiss Plaintiff's
Complaint. On March 31, 2005, Defendant National Financial
Services ("NFS") joined in the motion to dismiss Plaintiff's Complaint. The initial return date for the motions was April 25,
2005. As a result of the case having been reassigned on April 13,
2005, a new return date of June 27, 2005 was set. Plaintiff filed
a last minute motion to withdraw as pro se and retain counsel
on June 20, 2005, only one week prior to the return date for the
motions. Plaintiff had approximately three months to retain
counsel as he contemplated his opposition to Defendants' motions,
and more than a year to obtain counsel since the filing of his
Complaint in this Court. Although Plaintiff's opposition was
originally due on April 11, 2005 (on account of the April 25,
2005 return date), Plaintiff did not seek counsel and still was
pro se when he filed his opposition more than two months later
on June 20, 2005.
Courts in this circuit have not permitted a litigant to prolong
the resolution of a matter because counsel has not been obtained.
See Morris v. American Postal Workers Union, AFL-CIO, 1991 WL
157310, *2 (E.D.Pa. 1991). Plaintiff submits a letter dated June
21, 2005, addressed to him from Morgan W. Bentley, Esq. as
evidence that he had obtained counsel as of June 21, 2005 (prior
to the June 27, 2005 return date on Defendants' motion to
dismiss). See Walzer July 15, 2005. Oral arguments on the
motion were held on June 27, 2005 and Plaintiff appeared alone.
Almost three months have passed since that time and there is
still no attorney of record, and Plaintiff filed the current
motions as a pro se plaintiff. Plaintiff had a fair and
reasonable time to obtain counsel in this matter and may obtain
counsel to represent him at any time. Plaintiff will not be
permitted to subvert the procedures of the Court through his
inability to hire and retain counsel as a result of to his
willful termination of counsel retained to represent him. See
Wilkerson v. Klem, 412 F.3d 449, 460 (3d Cir. 2005).
Plaintiff has informed the Court that he has, for the second
time, dismissed his counsel and now he seeks an extension of time to hire counsel "who can
better edit and present his Reargument Motion into one document".
See Walzer, Emergency Adjournment Request Motion at 2. This
Court is well equipped to read and has in fact read all of the
papers that Plaintiff has submitted.
ii. Dismissal with prejudice
Plaintiff contends that this Court erred when it dismissed his
Complaint with prejudice. "New Jersey reposes within the
discretion of its trial courts the "decision whether to dismiss
with or without prejudice." Dowdell v. Univ. of Med. and
Dentistry, 94 F.Supp.2d 527, 533 (D.N.J. 2000), citing
Cornblatt v. Barow, 153 N.J. 218, 244 (1998). The New York
State Court ordered that the matter go to arbitration. Such an
order was final on the merits and therefore, when the same matter
appeared before this Court, the law required that that portion of
Plaintiff's Complaint be dismissed with prejudice because it
could not be relitigated in this court because there had been a
final judgment on the merits.*fn1 See Opinion 6-12.
In this case, there was a final disposition on the issue of
arbitrability in the New York State court and Plaintiff is barred
from bringing or maintaining that portion of his Complaint here.
With respect to the Court's June 30, 2005 order, the Court
clarifies that Plaintiff's Complaint with respect to the issue of
arbitrability is dismissed with prejudice and his complaint on
the merits is dismissed without prejudice. Upon examining the papers submitted on this motion, Plaintiff
does not claim an intervening change in law or put forth any new
evidence regarding the other motions that this court denied: 1)
motion to amend the complaint, 2) motion to adjourn and for
additional time to answer, 3) motion for sanctions and 4) motion
for default judgment. There is no manifest injustice or clear
error of law regarding any of those motions, because Plaintiff's
claims with respect to the issue of arbitrability would be
futile, thereby eliminating his need to amend the Complaint or
extend the time to answer or adjourn. Plaintiff has provided the
court with no new information alleging that the Court made an
error sufficient to grant his motion, and therefore his motion
cannot succeed on the third ground and must be denied.*fn2
C. Motion for extension of time to file appeal
On August 9, 2005 Plaintiff filed a motion for extension of
time to file his appeal of this Court's June 30, 2005 order with
the Court of Appeals for the Third Circuit. He sought the
extension to pay the filing fee pending disposition of his motion
for reargument addressed herein. On August 12, 2005 Plaintiff
filed notice with this Court of his payment of the filing fee,
and on or about August 22, 2005, this Court was notified by the
Court of Appeals of the docketing of Plaintiff's appeal.
Accordingly, Plaintiff's motion is denied as moot.
D. Motion for extension of time to answer and/or to bar
Defendants' opposition On September 2, 2005, Plaintiff filed a motion seeking an
extension of time to answer due to the effect Hurricane Katrina
had on his family.*fn3 In the same motion Plaintiff moved to
bar Defendants' opposition to his motion for reargument. The
court notes that Defendants filed their opposition in a timely
manner, on August 29, 2005.*fn4 On September 6, 2005
Plaintiff submitted a comprehensive and comprehensible
preliminary reply to Defendants' opposition to his motion. The
totality of Plaintiff's papers address the grounds on which he
seeks reconsideration and the court has examined all of
Plaintiff's submissions and considered all of his
arguments.*fn5 Granting Plaintiff's motion for an extension
of time to answer would be futile.
For the reasons set forth above, Plaintiff's motions are
denied. An appropriate order will be entered.
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