Opinion
No. 00 Civ. 1423 (RWS).
October 26, 2000.
MAYNE MILLER, ESQ. Attorney for Plaintiffs, New York, NY.
ROBERT D. KRAUS, ESQ. Attorney for Defendants, New York, NY.
OPINION
Plaintiffs Helen Wiesner ("Wiesner") and Chad Werema a/k/a Chaacha A. Wiesner ("Werema") (collectively, the "Plaintiffs") have moved by order to show cause for reconsideration of this Court's prior decision denying their motion for a preliminary injunction, for a default judgment, and for a preliminary injunction restraining the defendants, 321 West 16th Street Associates and Howard Graf ("Graf") (collectively, the "Defendants"), from taking any actions to remove personal property of the Plaintiffs from Apartment 3-E at 321 West 16th Street, New York, New York, and from taking any actions to renovate, reconstruct, alter or demolish the interior of the apartment. The Defendants oppose the motions.
For the reasons set forth below, the motions will be denied.
Prior Proceedings
The parties, facts, and prior proceedings in this action are set forth in greater detail in the Court's prior opinion in this litigation, familiarity with which is presumed. See Wiesner v. 321 West 16th Street Assocs., No. 00 Civ. 1423, 2000 WL 1191075 (S.D.N.Y. Aug. 22, 2000) ("Wiesner I").
The complaint in the instant action was filed on February 24, 2000. The complaint has been construed as asserting claims under the Fair Housing Act (the "FHA"), as amended, 42 U.S.C. § 3604, and the right to procedural due process under the Fourteenth Amendment and 42 U.S.C. § 1983. See Wiesner I, 2000 WL 1191075, at *3. The summons and complaint were served on Graf on April 6, 2000. The answer was due on April 26, 2000. The answer was filed on September 22, 2000.
Plaintiffs moved by order to show cause on May 2, 2000, for a preliminary injunction staying execution of a warrant of eviction at the premises apartment 3-E in the multiple dwelling known as 321 West 16th Street, New York, New York.
In Wiesner I, entered on August 23, 2000, this Court denied the Plaintiffs' motion for a preliminary injunction. The warrant of eviction was executed on or about September 18, 2000.
Plaintiffs moved by order to show cause on September 18, 2000 for reconsideration of this Court's prior order denying a preliminary injunction and for a default judgment. Submissions were received through September 20, 2000, at which time the matter was deemed fully submitted.
Plaintiffs moved by order to show cause on September 25, 2000 for a preliminary injunction restraining the Defendants from taking any actions to remove personal property of the Plaintiffs from the apartment at West 16th Street and from taking any actions to renovate, reconstruct, alter or demolish the interior of the apartment. Submissions weree received and oral argument was heard on September 29, 2000, at which time the matter was deemed fully submitted.
Discussion I. The Motion For Reconsideration A. The Rule Governing This Motion
The Plaintiffs cite to Rule 60 as the basis for their motion for reconsideration of the denial of a preliminary injunction in Wiesner I and cite mistake and new evidence as the grounds for this relief. See Rule 60(b) (setting forth grounds for relief from a final judgment, order, or proceeding). Rule 60, however, does not apply to this motion because a denial of a preliminary injunction is not a final judgment or order. See id.
There are two rules under which Plaintiffs' motion could be deemed to have been brought. The first is Federal Rule of Procedure 59(e). See Lichtenberg v. Besicorp Group Ins., 204 F.3d 397, 400 (2d Cir. 2000) ("judgment" for purposes of FRCP includes any order from which appeal lies, including interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1) of order granting, refusing, or refusing to dissolve an injunction, and thus Rule 59(e) applies to such order) (citing inter alia Gill v. Monroe County Department of Social Services, 873 F.2d 647, 648 (2d Cir. 1989) (denial of preliminary injunction); see also S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1141 (9th Cir. 1998) (discussing timeliness of motion for reconsideration of denial of preliminary injunction under Rule 59(e)).
However, a motion under Rule 59(e) must be brought within ten days after entry of the judgment, computed in accordance with Federal Rule of Civil Procedure 6(a), with intermediate Saturdays, Sundays, and legal holidays excluded. See Fed.R.Civ.P. 59(e) and 6(a). In this case, the time period began running as of date of the entry of the order denying the preliminary injunction. See S.O.C., Inc., 152 F.3d at 1141 n. 4 (ten day period under Rule 59(e) began running on day district court entered order denying preliminary injunction). This time limit is jurisdictional in nature and may not be extended by the district court. See Lichtenberg, 204 F.3d at 401. The instant motion was brought on September 18, 2000, which was 18 days after the entry of the order denying the preliminary injunction on August 23, 2000. Therefore, it is untimely under Rule 59(e).
Thus, the only rule under which this motion can be deemed to have been brought is Local Rule 6.3. Plaintiffs' motion was also untimely under this rule. See Local Rule 6.3 (requiring that motion for reconsideration or reargument be served within 10 days after the docketing of the court's determination of the original motion). Although a district court may grant an extension of time under Rule 6.3, see Lichtenberg, 204 F.3d at 403, denial of the motion would be justified on this ground alone. Indeed, the Plaintiffs have failed to request an extension of time even to this date. In any event, as set forth below, Plaintiffs' motion does not meet the standard under Rule 6.3 and is denied on that basis.
B. The Standard Under Local Rule 6.3
Local Rule 6.3 provides in pertinent part: "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Thus, to be entitled to reargument and reconsideration, the movant must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion. See Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993); East Coast Novelty Co. v. City of New York, 141 F.R.D. 245, 245 (S.D.N Y 1992).
Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court. In deciding a reconsideration and reargument motion, the court must not allow a party to use the motion as a substitute for appealing from a final judgment. See Morser v. ATT Info. Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989); Korwek v. Hunt, 649 F. Supp. 1547, 1548 (S.D.N.Y. 1986), aff'd, 827 F.2d 874 (2d Cir. 1987). Therefore, a party may not "advance new facts, issues or arguments not previously presented to the Court." Morse/Diesel, Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991). The decision to grant or deny the motion is within the sound discretion of the district court. See Schaffer v. Soros, No. 92 Civ. 1233, 1994 WL 592891, at *1 (S.D.N.Y. Oct. 31, 1994).
Upon receiving such a motion, a court may do any of the following. First, the motion may be denied, thereby leaving the original decision unaltered. See Lehmuller v. Incorporated Village of Sag Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997). Alternatively, "the Court can grant a motion to reargue for the limited purposes of considering the effect of an overlooked matter," and after doing so may affirm and/or clarify the original decision. Lehmuller, 982 F. Supp. at 135-36; see In re First American Corp., No. M8-85, 1998 WL 148421, at *3 (S.D.N.Y. Mar. 27, 1998), aff'd, 154 F.3d 16 (2d Cir. 1998); Violette v. Armonk Assocs., L.P., 823 F. Supp. 224, 226-27, 231 (S.D.N.y. 1993); Brignoli v. Balch Hardy Scheinman, Inc., 735 F. Supp. 100, 102-03 (S.D.N.Y. 1990). Finally, having granted a motion to reconsider, the court may vacate the original decision. See Morin v. Trupin, 823 F. Supp. 201, 203 (S.D.N.Y. 1993); Travelers Ins. Co. v. Buffalo Reins. Co., 739 F. Supp. 209, 211-13 (S.D.N.Y. 1990).
C. Reconsideration Is Not Warranted
The Plaintiffs contend that this Court should reconsider its prior ruling as to Wiesner's FHA claim on the theory that the Defendants violated their duty to make a reasonable accommodation by pursuing eviction proceedings against Wiesner. Instead of going to court, according to the Plaintiffs, the Defendants had a duty to remove, after notice, her personal property in the public areas of the building. Wiesner did not raise this argument in the underlying motion. Therefore, reconsideration of Wiesner's FHA claim based on this argument is denied.
Moreover, Wiesner's argument is not meritorious. Wiesner was represented by counsel in the eviction proceedings, and said counsel negotiated a stipulation on Wiesner's behalf according to which Wiesner was to maintain the common areas free of her personal belongings. See Wiesner, 2000 WL 1191057, at *7 Assuming arguendo that it would not be an undue burden under the FHA to require the Defendants to keep the common areas clear of Wiesner's belongings, under these circumstances it cannot be said that the Defendants refused to make a reasonable accommodation for Wiesner's disability. Instead, they negotiated with Wiesner's counsel and reached an agreement that was intended to address the issue of the hazard she was creating.
The Plaintiffs also contend that this Court erred in its balancing of the equities as to Wiesner's FHA claim because, according to the Plaintiffs, Wiesner is not required to make a showing of irreparable injury in order to obtain preliminary injunctive relief in an FHA action. However, this Court did not deny Wiesner's claim on the ground that she had not shown a likelihood of irreparable injury. Rather, the Court found that she had made such a showing and nevertheless denied the motion on other grounds. See Wiesner, 2000 WL 1191075, at *7. Thus, assuming arguendo that Wiesner is correct as to the requisite showing of harm, this is immaterial since the Court held that she had met the higher standard in any case.
Here again, the Plaintiffs cite to case law not previously put before the Court, in contravention of Rule 6.3.
Second, the Plaintiffs contend that this Court should reconsider its ruling that there was no showing of state action with respect to Werema's procedural due process claim. The. Plaintiffs have attempted to reconfigure their argument, which was that the Defendants had violated Werema's due process rights by failing to name him as a party to the eviction proceedings, in violation of a statutory requirement under New York law. Now the Plaintiffs contend that the failure to name Werema was connected in some way to Werema's disability, therefore the Defendants were violating the FHA, and the fact that the state court permitted the Defendants to proceed in this manner constituted state action underShelley v. Kramer, 334 U.S. 1 (1948). Again, the Plaintiffs' motion for reconsideration is denied because the Plaintiffs raise new arguments and cite to case law not previously put before the Court.
Moreover, this new argument is without merit. Even if the legal theory were meritorious, concerning which issue the Court expresses no opinion, there is no evidentiary basis for the link the Plaintiffs' seek to draw between the Defendants' failure to name Werema in the eviction proceedings and Werema's disability. Rather, these allegations are entirely speculative.
II. The Motion For A Default Judgment
Plaintiffs seek entry of a default judgment because the Defendants failed to plead or otherwise defend within the time allotted by the Federal Rules of Civil Procedure. Specifically, the Defendants failed to answer the complaint until September 22, 2000, although their answer was due on April 26, 2000.
Where entry of a default judgment is opposed, the standard for granting such a judgment under Rule 55 is governed by the same principles that apply to a motion to set aside entry of a default. See Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981) ("[O]pposition to a motion for a default judgment can be treated as a motion to set aside the entry of a default despite the absence of a formal Rule 55(c) motion"). The standard for setting aside entry of a default is whether there is "good cause," see Rule 55(c), which requires consideration of "whether [defendant's] default was willful, whether setting the default aside would prejudice [plaintiff] and whether [defendant] presented a meritorious defense." Sony Corp. v. Elm State Elecs., Inc., 800 F.2d 317, 320 (2d Cir. 1986)
The Defendants contend that they did not intentionally default but, rather, so "strongly believed in their case" that they thought this Court would not only deny the motion for a preliminary injunction but also dismiss the complaint sua sponte. This is a bizarre position, to say the least. Moreover, it does not fit with the procedural history of this case in that the order to show cause seeking an injunction was filed after the time for filing an answer had already passed. Defendants' failure to answer goes beyond mere negligence, or even gross negligence, and is deemed willful. See SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998) (willfulness under Rule 55(c) requires more culpability than negligence or gross negligence).
Oddly enough, the Plaintiffs apparently shared the expectation that if the Court denied the motion for a preliminary injunction it would also dismiss the complaint even absent a motion to dismiss. Thus, in their current submissions the Plaintiffs note that in Wiesner I the Court "denied the preliminary injunction but did not dismiss the complaint."
"Ordinarily a finding of willfulness will so offend our notion of an efficient administration of justice that [a] default judgment will stand." 131 Main Street Assocs. v. Manko, No. 93 Civ. 800, 1998 WL 811875, at *5 (S.D.N.Y. Nov. 19, 1998) (citing cases). The same reasoning applies to a motion for entry of a default. However, there are situations in which the other relevant factors militate against relying only on the defendant's willfulness. See id. This is one of those cases.
The plaintiffs have not been prejudiced by the Defendants' failure to answer, and will not be prejudiced if a default is not entered. The Defendants duly appeared in this action to defend each of the orders to show cause. There is no indication that the Plaintiffs have lacked for needed discovery to litigate this action, or otherwise been prejudiced by the Defendants' failure to answer the complaint. See Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983). Indeed, the Plaintiffs did not move for a default judgment until five months after the Defendants' answer was due.
In addition, as evidenced by this Court's denial of the motion for a preliminary injunction, the Defendants have meritorious defenses to the Plaintiffs' claims. Therefore, given the lack of prejudice to the Plaintiffs and the showing of a meritorious defense on the part of the Defendants, the motion for entry of a default judgment is denied.
III. The Motion For A Preliminary Injunction
The Plaintiffs have also moved for a preliminary injunction restraining the Defendants from taking any actions to remove personal property of the Plaintiffs from Apartment 3-E at 321 West 16th Street, New York, New York, and from taking any actions to renovate, reconstruct, alter or demolish the interior of the apartment.
The procedural basis for this motion is unclear. The Defendants characterize this motion as a "second motion for reconsideration." However, because the relief sought is not the same as the relief sought in Wiesner I, the Court will treat it as a new motion for preliminary injunctive relief.
Of course, if this were a motion for reconsideration it would fail for the reasons discussed in Point I, supra, including lack of timeliness and failure to meet the standard under Rule 6.3.
As in Wiesner I, the claims underlying the Plaintiffs' motion for a preliminary injunction are that the Defendants violated their rights under the FHA and procedural due process. In the main, the theory of these claims and the grounds asserted for them were raised in connection withWiesner I, and are without merit for the reasons discussed in that decision. To the extent Wiesner raises new arguments, those arguments were raised in her motion for reconsideration of Wiesner I and are without merit for the reasons set forth above; Thus, a preliminary injunction is not warranted based on Wiesner's FHA claim because she has not shown either a reasonable probability of success, or that there are sufficiently serious questions going to the merits of her FHA claim to make them a fair ground for litigation and the balance of hardships tips in her favor. A preliminary injunction is not warranted based on her procedural due process claim because she has neither made a showing of state action nor that she was denied process to which she was due.
The only difference between this motion and the earlier motions made by the Plaintiffs is the difference in the relief sought. In Wiesner I the Plaintiffs sought to stay the execution of a warrant of eviction, whereas here they seek to stay the Defendants from removing their personal property or from renovating or making other changes to the apartment. In this instance, the Plaintiffs have already been evicted and do not seek to be reinstated in the apartment pursuant to this motion. What they seek is to forestall the Defendants from de facto rendering their eviction permanent by removing their belongings and renovating or making other changes to the apartment which would allow the Defendants to raise the rent for the apartment to market level and install a new tenant with intervening third-party rights.
In theory, the fact that different relief is sought could affect the balancing of the hardships factor for the preliminary injunction analysis, since the action — or inaction — required of the Defendants is ostensibly different than in Wiesner I. In the end, however, the hardships still tip in favor of the Defendants. In Wiesner I it was contemplated that eviction might result in Wiesner's permanent removal from the apartment. See Wiesner, 2000 WL 1191075, at *7 (holding that Wiesner had shown likelihood of irreparable injury due to likely eviction and unlikely prospect of finding alternative, affordable housing in New York City). It was also recognized, however, that the Defendants have legitimate interests in effectuating this eviction which, under all the circumstances of this case and its protracted history, outweigh those of Wiesner. See id. at *8. The Defendants' interests in effectuating the eviction are not limited to preventing a public nuisance, but also include being able to rent the apartment. Therefore, as in Wiesner I, the balance of the hardships tips in favor of the Defendants and denial of a preliminary injunction is appropriate.
With respect to Werema's FHA and due process claims, his arguments repeat either the arguments made in connection with Wiesner I, and are without merit for the reasons discussed in that opinion, or they repeat the arguments made in connection with the Plaintiffs' motion for reconsideration and are without merit for the reasons discussed previously in this opinion. Denial of the preliminary injunction is appropriate.
Conclusion
Therefore, for the reasons set forth above the Plaintiffs' motions for reconsideration, a default judgment, and a preliminary injunction are denied.
It is so ordered.