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denying as untimely motion for reconsideration filed six weeks after ruling
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02 Cr. 1237 (SWK).
October 17, 2007
OPINION AND ORDER
In an order filed September 20, 2007, the Court directed the parties to submit briefs addressing whether the letters by Angelo DiPietro ("DiPietro"), dated July 29 and August 29, 2007, and the letter by DiPietro's son, dated August 3, 2007 (the "Purported Pro Se Filings"), constituted a timely motion for reconsideration of the Court's Opinion and Order of July 25, 2007. After reviewing the parties' briefs and consulting the applicable legal authorities, the Court finds that the aforementioned submissions do not comprise a timely request for reconsideration and, in any event, provide no legally cognizable grounds for reconsideration.
I. DISCUSSION
Although neither the Federal Rules of Criminal Procedure, nor the Local Criminal Rules, expressly contemplate motions for reconsideration in criminal cases, courts in the Second Circuit have traditionally permitted the filing of such motions. See United States v. Yannotti, 457 F. Supp. 2d 385, 388 (S.D.N.Y. 2006) (citing United States v. Clark, 984 F.2d 31, 33 (2d Cir. 1993); United States v. Mottley, 03 Cr. 303 (LTS), 2003 WL 22083420, at *1 (S.D.N.Y. Sept. 9, 2003)). In ruling upon these motions, courts apply the standard set forth in Local Civil Rule 6.3. See, e.g., Yannotti, 457 F. Supp. 2d at 388-89 (citingUnited States v. Delvi, 01 Cr. 74 (SAS), 2004 WL 235211, at *1 (S.D.N.Y. Feb. 6, 2004); United States v. Greenfield, 01 Cr. 401 (AGS), 2001 WL 1230538, at *1 (S.D.N.Y. Oct. 16, 2001)); see also U.S. Dist. Ct. S. E.D.N.Y. Civ. R. 6.3.
Local Rule 6.3 requires that a motion for reconsideration (1) "be served within ten (10) days after the entry of the court's determination of the original motion," and (2) be accompanied "by a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." U.S. Dist. Ct. S. E.D.N.Y. Civ. R. 6.3. Here, the Purported Pro Se Filings are untimely because they were not effectively filed — if at all — until six weeks after the decision they challenge. Furthermore, the Filings provide no cognizable grounds for reconsideration because they fail to specify matters or controlling decisions overlooked by the Court. Therefore, the Court declines to reconsider its July 25 Opinion and Order.
A. DiPietro's Motion for Reconsideration Is Untimely
Pursuant to its docket-managing authority, a district court may reject purported pro se motions filed by a represented defendant. See United States v. Tracy, 989 F.2d 1279, 1285 (1st Cir. 1993); Mitchell v. Senkowski, 489 F. Supp. 2d 147, 149 (N.D.N.Y. 2006) (collecting cases); United States v. Cruz, 94 Cr. 802, 1995 WL 313139, at *1 (E.D.N.Y. May 17, 1995). In an order filed on September 10, 2007, the Court refused to docket the Purported Pro Se Filings because they were not adopted by counsel and were, in any event, not relevant to any then-pending motion.See 02 Cr. 1237 (SWK), Dkt. No. 241. The Court also declined to treat DiPietro's letter, dated August 29, 2007, as a motion for reconsideration because it was also unadopted by counsel. See 02 Cr. 1237 (SWK), Dkt. No. 241. Thus, as of the entry of the September 10 Order, the Court had not received a properly-filed motion to reconsider its Opinion and Order dated July 25, 2007.
The Court's Order referred to DiPietro's facsimile, dated August 29, 2007, because at the time that the Order was signed on September 5, 2007, the Court had yet to receive the letter copy of DiPietro's submission. That letter copy, to which the Court refers above-the-line, and which was received on September 6, 2007, is identical to the facsimile referenced in the Court's September 10 Order.
On September 11, 2007, counsel for DiPietro submitted a letter to the Court in which he formally adopted the Purported Pro Se Filings. Assuming that this letter constitutes a motion for reconsideration, the Government argues that the motion should nonetheless be deemed filed no earlier than September 11, 2007, i.e., the date on which counsel purportedly mailed it to the Court. As such, the defendants' motion for reconsideration was filed — if at all — more than six weeks after the Court's Opinion and Order dated July 25, 2007, and is accordingly untimely. The Court agrees.
Counsel for DiPietro has not adequately explained why he neglected to file a motion for reconsideration within the time limit established by Local Rule 6.3. Counsel's stated belief that the Court had no intention of granting reconsideration (see Defs.' Letter 2, Oct. 5, 2007) does not excuse the six-week delay in his adoption of DiPietro's purported motion to reconsider. Counsel's failure to consult with his client before briefing his opposition to the Government's motion to amend the record (Defs.' Letter 1, Sept. 11, 2007) is also no excuse for his failure to file a timely motion for reconsideration. Absent any reasonable excuse for counsel's extended delay in requesting reconsideration, the Court finds that reconsideration was requested — if at all — no earlier than September 11, 2007, the date on which counsel sent his letter adopting the prior submissions by DiPietro and his son. Because the time to move for reconsideration of the Court's July 25 Opinion and Order expired on August 8, 2007, any subsequent motion for reconsideration of that Opinion and Order was untimely.
B.DiPietro's Motion Fails to Set Forth Matters or Controlling Decisions Overlooked by Court
Even if the Purported Pro Se Filings, taken individually or as a group, were deemed a timely motion for reconsideration, that motion would be denied on the merits. In order to obtain reconsideration a party "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000) (per curiam) (internal quotation marks and citation omitted); see also Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999) (collecting cases). Here, the letters in question do not cite any controlling legal authorities overlooked by the Court. To the contrary, the letters rely principally upon assertions made by DiPietro and his son to the effect that they remember the statement at issue in the Court's July 25 Opinion and Order, and recall that the Court did in fact misstate the Government's burden of proof in a criminal case. (Anthony DiPietro Letter 2, Aug. 3, 2007; Defs.' Letter 5, July 29, 2007.)
Because the defendants failed to place these assertions on the record before the Court at the time that it decided the Government's motion to amend the record, the Court, a fortiori, did not "overlook" them. Moreover, counsel for DiPietro has provided no excuse for not bringing these purported facts to the Court's attention at the time that it considered the Government's underlying motion, other than his failure to consult with his client before briefing that motion. Therefore, it appears that the factual assertions forming the centerpiece of the defendants' purported motion for reconsideration were readily available to defense counsel at the time he filed his opposition to the Government's motion to amend the record. Under these circumstances, the Court will not except defendants' submissions from the general rule that reconsideration is only appropriate where a court has overlooked a factual matter actually before it on the underlying motion. See Naiman v. N.Y. Univ. Hosps. Ctr., 95 Cv. 6469 (RPP), 2005 WL 926904, at *1 (S.D.N.Y. Apr. 21, 2005) (Local Rule 6.3 "prevent[s] the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters") (internal quotation marks and citation omitted); see also In re Integrated Resources Real Estate Ltd. P'ships Sec. Litig., 850 F. Supp. 1105, 1151 (S.D.N.Y. 1993) ("[A] party in its motion for reargument may not advance new facts, issues or arguments not previously presented to the court.") (internal quotation marks and citation omitted).
As the Purported Pro Se Filings do not present any controlling authorities or factual matters overlooked by the Court in its July 25 Opinion and Order, any motion for reconsideration comprised by those submissions would be meritless.
In his facsimile to the Court dated October 5, 2007, counsel for DiPietro has reiterated his request that this matter be reassigned to another judge on the grounds that the Court has acted as fact-finder and witness in amending the trial transcript (see Defs.' Facsimile 1, Oct. 5, 2007.) Nevertheless, for the reasons stated in the Court's July 25 Opinion and Order, counsel's request is unsupported by the relevant authorities and thus must be denied. United States v. DiPietro, 02 Cr. 1237 (SWK), 2007 WL 2164262, at *4 n. 2 (S.D.N.Y. July 25, 2007).
II. CONCLUSION
For the foregoing reasons, the Court declines to reconsider its July 25 Opinion and Order. Assuming, arguendo, that the Purported Pro Se Filings, in combination with the letter submitted by DiPietro's counsel on September 11, 2007, constitute a motion for reconsideration, that motion is both untimely and devoid of merit.
The clerk of court is respectfully directed to docket the letter filed by the Government on October 5, 2007; the facsimile sent to the Court by defense counsel on October 5, 2007; the letter filed by defense counsel on September 11, 2007; DiPietro's letter, dated August 29, 2007; the letter sent to the Court by DiPietro's son, dated August 3, 2007; and DiPietro's letter, dated July 29, 2007.
SO ORDERED.