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United States v. Balice

United States District Court, D. New Jersey

October 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL BALICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          Kevin McNulty United States District Judge

         At last count, Mr. Balice had filed some dozen motions to dismiss, as well as other potentially dispositive motions under various titles. The Court has, in several prior opinions, considered his "tax protestor" arguments, as well as others, and rejected them. (See, e.g., Opinions, ECF nos. 71, 102, 152, 167, 208, 210, 216)[1]I have also required that he seek leave of the Magistrate Judge before filing further such motions. (See, e.g., Orders, ECF nos. 102, 152)

         Nevertheless, now before the Court are several more motions by Mr. Balice. (ECF nos. 219, 223, 224, 225) Filed without leave, they might be rejected on that ground alone. In the interest of efficiency, however, I briefly consider them, without in every case requiring a response from the government.

         A. 2nd Motion to Alter or Amend (ECF no. 219)

         On August 9, 2017, the Court entered an Opinion (ECF no. 210) and Order (ECF no. 211) granting the Motion of the United States for Summary Judgment as to Counts I, III, V, and VI, without reaching Count IV, and denying Mr. Bailee's Motion to Strike. On August 30, 2017, by another Opinion and Order, I denied Mr. Bailee's motion for reconsideration. (ECF no. 216)

         Mr. Bailee has now filed a "2nd Motion to Alter or Amend The Order of the Court." (ECF no. 219) Mr. Balice first characterizes his motion as one under Fed.R.Civ.P. 59(e), but later cites Local Rule 7. l(i). Either way, it is directed at the Court's Summary Judgment order. (ECF no. 211) The United States has submitted a brief in opposition (ECF no. 222). Mr. Balice has filed an "Objection" (ECF no. 226), which I treat as his reply.

         I set aside the lack of any explicit authorization of a second reconsideration motion. I also note that the motion is surely untimely. (A Rule 7(i) motion must be brought within 14 days, and a Rule 59(e) motion within 28 days.) There is no need to rest on procedural grounds, however, because the motion lacks substantive merit.

         My prior Opinion discussed the standards for reconsideration under Local Rule 7.1(i). In short, reconsideration is granted sparingly, generally only in one of three situations: (1) when there has been an intervening change in the law; (2) when new evidence has become available; or (3) when necessary to correct a clear error of law or to prevent manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995); Carmichael v. Everson, 2004 WL 1587894 (D.N.J. May 21, 2004). A Rule 59(e) motion similarly requires submission of arguments or evidence that were not available at the time of the original motion:

"Accordingly, a judgment may be altered or amended [only] if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." [citing Howard Hess Dental Labs., Inc. v. Dentsply Int'l Inc., 602 F.3d 237, 251 (3d Cir.2010)] (quotation marks omitted) (emphasis added). We have made clear that "'new evidence, ' for reconsideration purposes, does not refer to evidence that a party ...submits to the court after an adverse ruling. Rather, new evidence in this context means evidence that a party could not earlier submit to the court because that evidence was not previously available." Id. at 252. Evidence that is not newly discovered, as so defined, cannot provide the basis for a successful motion for reconsideration. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).

Blystone v. Horn, 664 F.3d 397, 415-16 (3d Cir. 2011)

         For the second time, Mr. Balice has submitted a motion that meets none of those requirements. It contains nothing that was not, or could not have been, raised in opposition to the motion for summary judgment (or, I suppose, in the first motion for reconsideration). It also rehashes discovery disputes already disposed of. (See, e.g., Opinion, ECF no. 210)

         This Motion ("Mot.") rests on the following allegedly new grounds:

         a) Mr. Balice states that "a newly acquired Exhibit . . . plainly shows a Wite off of $76, 586.46." That alleged write-off has already been the subject of considerable motion practice. And the allegedly "new" transcript he attaches was provided to him on May 2, 2016. Compare Mot. Ex. 1-A (ECF no. 219-1) pp. 2-3 with ECF no. 137-1 at pp. 5-6.

         b) Mr. Balice appears to argue that an IRS document acknowledges a statute of limitations date that differs from or that calculated by the Court. See Mot. at ¶19. The evidence in question was available and provided to Balice over a year ago. Compare Motion Ex. 1-C (ECF no. 219-3) pp. 3-6 with Dkt. 137-1 p. 5-7. In any ...


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