United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
McNulty United States District Judge
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)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)
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.
2nd Motion to Alter or Amend (ECF no.
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)
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
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
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
"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.
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)
Motion ("Mot.") rests on the following allegedly
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.
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 ...