Opinion
04 Civ. 3170 (WHP).
July 26, 2006
ORDER
Plaintiff pro se Anthony Patterson ("Patterson") moves pursuant to Fed.R.Civ.P. 59(e) and Local Rule 6.3 for reconsideration of this Court's Memorandum and Order, dated September 27, 2005, granting the Government's motion to dismiss for lack of subject matter jurisdiction.
BACKGROUND
The factual background of this case is set forth in this Court's prior Memorandum and Order. Patterson v. United States, No. 04 Civ. 3170 (WHP), 2005 WL 2414765 (S.D.N.Y. Sept. 27, 2005). On February 14, 2002 agents of the Drug Enforcement Agency ("DEA") seized a total of $89,453 in cash from four large water bottles in Patterson's home in Bronx, New York. The DEA initiated two separate administrative forfeiture proceedings against these funds: one in the amount of $18,070 and another in the amount of $71,383. On November 6, 2002, the DEA forfeited the funds because it had not received any adequate submission challenging the forfeiture.
On January 26, 2004 Plaintiff pro se filed a complaint against the Government in this Court alleging that he had not received notice of the forfeiture proceedings commenced by the DEA and had therefore been denied due process. This Court found that because the DEA had in fact made constitutionally sufficient efforts to notify Patterson of the forfeiture proceedings, there had been no due process violation and the Court lacked subject matter jurisdiction over Patterson's claims. Patterson now moves for reconsideration of that ruling on the grounds that the certified mail and return receipts relied on by the Court were fraudulent and, in any event, ineffective proof of service. This Court discerns from his submissions that Patterson argues that the Court mistakenly relied on receipts that are deficient on their face in light of certain regulations of the United States Postal Service. Petitioner also contends that the DEA forged the receipts and thus perpetrated a "fraud on the Court."
DISCUSSION
A motion to alter or amend a judgment pursuant to Fed.R.Civ.P. 59(e) is evaluated under the same standard as a motion for reconsideration under Local Civil Rule 6.3. Williams v. N.Y. Dep't. of Corrections, 219 F.R.D. 78, 83 (S.D.N.Y. 2003). Such motions "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Such a motion "cannot assert new arguments or claims which were not before this court on the original motion." Koehler v. Bank of Berm., Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1 (S.D.N.Y. May 10, 2005). The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court. McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983). In addition, while this Court must liberally construe the pleadings of a pro se litigant, this does not exempt him from his duty to meet the requirements for reconsideration. McCallan v. Von Essen, No. 01 Civ. 5281 (RJH), 2004 WL 1907752, at *2 (S.D.N.Y. Aug. 25, 2004) (denying a pro se litigant's motion for reconsideration because it failed to raise any issue of law or fact overlooked by the court); Grullon v. Reid, No. 97 Civ. 7616 (RWS), 2000 WL 648891, at *1 (S.D.N.Y. May 19, 2000) (same).
Patterson asserts that the DEA forged the certified mail receipts, and that in any case they are deficient proof of notice because they are blank and do not bear a postmark. In response, the Government avers that it is standard practice for the DEA to send out multiple pieces of certified mail at one time and therefore, it is not feasible to complete each certified mail receipt. The DEA retains the receipt and, when it receives the return receipt, matches them by tracking number.
Patterson fails to point to any fact or relevant law that the Court overlooked in rendering its decision. To the contrary, Patterson is attempting to raise new arguments about the postal receipts that he could have raised previously. A motion for reconsideration is not an invitation to parties to "treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings." De Los Santos v. Fingerson, No. 97 Civ. 3972 (MBM), 1998 WL 788781, at *1 (S.D.N.Y. Nov. 12, 1998); accord In re Rezulin Prods. Liab. Litig., 224 F.R.D. 346, 349 (S.D.N.Y. 2004); Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) ("It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.") (citations and internal quotation marks omitted); Virgin Atlantic Airways Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (noting reconsideration generally appropriate only where there is "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice").
Patterson asserts that the United States Postal Service regulations he invokes only came to his attention after this Court's dismissal of his claims. However, the regulations he cites are publicly available and thus were available to him from the outset of this case.
Moreover, to the extent Patterson's allegations of fraud can be construed to raise issues pursuant to Fed.R.Civ.P. 60(b)(3) for relief from judgment, Patterson has not adduced the evidence necessary for such relief. Indeed, Patterson has relied entirely on allegations and has offered no evidence of fraud at all. This plainly does not rise to the "clear and convincing" standard required to sustain a Rule 60(b)(3) motion. See Fleming v. New York University, 865 F.2d 478, 484 (2d Cir. 1989) (noting that a "Rule 60(b)(3) motion cannot be granted absent clear and convincing evidence of material misrepresentations and cannot serve as an attempt to relitigate the merits"); Horphag Research Ltd. v. Henkel Corp., No. 00 Civ. 0438 (MBM), 2004 WL 117601, at *3 (S.D.N.Y. Jan. 26, 2004) (same); Buxbaum v. Deutsche Bank AG, 216 F.R.D. 72, 81-82 (S.D.N.Y. 2003) (baseless allegations do not qualify a party for relief under Rule 60(b)(3)); see also Dais v. Lane Bryant, Inc., No. 97 Civ. 2011 (PKL), 2002 WL 417242, at *2 (S.D.N.Y. 2002) ("[Pro se litigants] are not excused from the requirement that they produce `highly convincing' evidence to support a Rule 60(b) motion.").
CONCLUSION
For the foregoing reasons, Patterson's motion for reconsideration pursuant to Fed.R.Civ.P. 59(e) and Local Rule 6.3 is denied.SO ORDERED.