UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IZZAT NAZER, Plaintiff, -against- UNITED STATES OF AMERICA; OFFICE OF 20-CV-6836 (CM) THE DIRECTOR OF NATIONAL INTELLIGENCE; CENTRAL ORDER INTELLIGENCE AGENCY; NATIONAL SECURITY AGENCY; DEPARTMENT OF HOMELAND SECURITY; FEDERAL BUREAU OF INVESTIGATION, Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff filed this action pro se. On September 23, 2020, the Court dismissed the complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). On October 6, 2020, Plaintiff filed a “Request to Reopen Case,” challenging the September 23, 2020 dismissal order. (ECF No. 6.) The Court liberally construes this submission as a motion under Fed. R. Civ. P. 59(e) to alter or amend judgment and a motion under Local Civil Rule 6.3 for reconsideration, and, in the alternative, as a motion under Fed. R. Civ. P. 60(b) for relief from a judgment or order. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (The solicitude afforded to pro se litigants takes a variety of forms, including liberal construction of papers, “relaxation of the limitations on the amendment of pleadings,” leniency in the enforcement of other procedural rules, and “deliberate, continuing efforts to ensure that a pro se litigant understands what is required of him”) (citations omitted). After reviewing the arguments in Plaintiff’s submission, the Court denies the motion. DISCUSSION The standards governing Fed. R. Civ. P. 59(e) and Local Civil Rule 6.3 are the same. R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d 506, 509 (S.D.N.Y. 2009). The movant must demonstrate that the Court overlooked “controlling law or factual matters” that had been previously put before it. Id. at 509 (discussion in the context of both Local Civil Rule 6.3 and
Fed. R. Civ. P. 59(e)); see Padilla v. Maersk Line, Ltd., 636 F. Supp. 2d 256, 258-59 (S.D.N.Y. 2009). “Such motions must be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court.” Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 391-92 (S.D.N.Y. 2000); see also SimplexGrinnell LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 2d 206 (S.D.N.Y. 2009) (“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 ruling.’”) (internal quotation and citations omitted). In his motion, Plaintiff alleges that, along with the complaint, he submitted additional
documents “electronically by 2 email addresses,” but those documents were not docketed in the case. (ECF No. 6, at 1.) He maintains that those documents contained “supporting facts for [his] claims.” (Id.) Plaintiff further asserts that his complaint was not “frivolous” based on the unreasonableness of his claims because “[t]he unreasonableness of the actions & behaviors of defendants don’t imply that it didn’t take place.” (Id.) Plaintiff attaches to his motion 54 pages of additional documents; these documents may be the documents that Plaintiff alleges he filed electronically, but these documents were not docketed. The Court has reviewed these documents,1 and to the extent they include new facts not alleged in the complaint, they do not change the Court’s conclusion in its September 23, 2020 order of dismissal. Moreover, Plaintiff has failed to demonstrate in his motion that the Court overlooked any controlling law. Plaintiff’s motion under Fed. R. Civ. P. 59(e) and Local Civil
Rule 6.3 is therefore denied. Under Fed. R. Civ. P. 60(b), a party may seek relief from a district court’s order or judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). The Court has considered Plaintiff’s arguments, and even under a liberal interpretation of his motion, Plaintiff has failed to allege facts demonstrating that any of the grounds listed in the first five clauses of Fed. R. Civ. P. 60(b) apply. Therefore, the motion under any of these clauses is denied. To the extent that Plaintiff seeks relief under Fed. R. Civ. P. 60(b)(6), the motion is also denied. “[A] Rule 60(b)(6) motion must be based upon some reason other than those stated in clauses (1)-(5).” United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009) (quoting Smith v.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IZZAT NAZER, Plaintiff, -against- UNITED STATES OF AMERICA; OFFICE OF 20-CV-6836 (CM) THE DIRECTOR OF NATIONAL INTELLIGENCE; CENTRAL ORDER INTELLIGENCE AGENCY; NATIONAL SECURITY AGENCY; DEPARTMENT OF HOMELAND SECURITY; FEDERAL BUREAU OF INVESTIGATION, Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff filed this action pro se. On September 23, 2020, the Court dismissed the complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). On October 6, 2020, Plaintiff filed a “Request to Reopen Case,” challenging the September 23, 2020 dismissal order. (ECF No. 6.) The Court liberally construes this submission as a motion under Fed. R. Civ. P. 59(e) to alter or amend judgment and a motion under Local Civil Rule 6.3 for reconsideration, and, in the alternative, as a motion under Fed. R. Civ. P. 60(b) for relief from a judgment or order. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (The solicitude afforded to pro se litigants takes a variety of forms, including liberal construction of papers, “relaxation of the limitations on the amendment of pleadings,” leniency in the enforcement of other procedural rules, and “deliberate, continuing efforts to ensure that a pro se litigant understands what is required of him”) (citations omitted). After reviewing the arguments in Plaintiff’s submission, the Court denies the motion. DISCUSSION The standards governing Fed. R. Civ. P. 59(e) and Local Civil Rule 6.3 are the same. R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d 506, 509 (S.D.N.Y. 2009). The movant must demonstrate that the Court overlooked “controlling law or factual matters” that had been previously put before it. Id. at 509 (discussion in the context of both Local Civil Rule 6.3 and
Fed. R. Civ. P. 59(e)); see Padilla v. Maersk Line, Ltd., 636 F. Supp. 2d 256, 258-59 (S.D.N.Y. 2009). “Such motions must be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court.” Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 391-92 (S.D.N.Y. 2000); see also SimplexGrinnell LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 2d 206 (S.D.N.Y. 2009) (“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 ruling.’”) (internal quotation and citations omitted). In his motion, Plaintiff alleges that, along with the complaint, he submitted additional
documents “electronically by 2 email addresses,” but those documents were not docketed in the case. (ECF No. 6, at 1.) He maintains that those documents contained “supporting facts for [his] claims.” (Id.) Plaintiff further asserts that his complaint was not “frivolous” based on the unreasonableness of his claims because “[t]he unreasonableness of the actions & behaviors of defendants don’t imply that it didn’t take place.” (Id.) Plaintiff attaches to his motion 54 pages of additional documents; these documents may be the documents that Plaintiff alleges he filed electronically, but these documents were not docketed. The Court has reviewed these documents,1 and to the extent they include new facts not alleged in the complaint, they do not change the Court’s conclusion in its September 23, 2020 order of dismissal. Moreover, Plaintiff has failed to demonstrate in his motion that the Court overlooked any controlling law. Plaintiff’s motion under Fed. R. Civ. P. 59(e) and Local Civil
Rule 6.3 is therefore denied. Under Fed. R. Civ. P. 60(b), a party may seek relief from a district court’s order or judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). The Court has considered Plaintiff’s arguments, and even under a liberal interpretation of his motion, Plaintiff has failed to allege facts demonstrating that any of the grounds listed in the first five clauses of Fed. R. Civ. P. 60(b) apply. Therefore, the motion under any of these clauses is denied. To the extent that Plaintiff seeks relief under Fed. R. Civ. P. 60(b)(6), the motion is also denied. “[A] Rule 60(b)(6) motion must be based upon some reason other than those stated in clauses (1)-(5).” United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009) (quoting Smith v.
1 The documents appear to be a series of comments that Plaintiff posted on YouTube or other social media platforms between August 6, 2018, and December 23, 2019. Most of the comments relate to conspiracies involving the Freemasons, the FBI, and other U.S. and international intelligence agencies, so-called “gang-stalking” set in motion by Plaintiff’s family, difficulties Plaintiff has faced in other countries, and repeated efforts by others to stymie Plaintiff’s romantic life. Sec’y of HHS, 776 F.2d 1330, 1333 (6th Cir. 1985)). A party moving under Rule 60(b)(6) cannot circumvent the one-year limitation applicable to claims under clauses (1)-(3) by invoking the residual clause (6) of Rule 60(b). /d. A Rule 60(b)(6) motion must show both that the motion was filed within a “reasonable time” and that “‘extraordinary circumstances’ [exist] to warrant relief.” Old Republic Ins. Co. v. Pac. Fin. Servs. of America, Inc., 301 F.3d 54, 59 (2d Cir. 2002) (per curiam) (citation omitted). Plaintiff has failed to allege any facts demonstrating that extraordinary circumstances exist to warrant relief under Fed. R. Civ. P. 60(b)(6). See Ackermann v. United States, 340 U.S. 193, 199-202 (1950). CONCLUSION The Court denies Plaintiff's motion for reconsideration (ECF No. 6). The Court also denies Plaintiff’s motion to participate in electronic case filing (ECF No. 7) and his request for appointment of counsel (ECF No. 8) as moot. The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED. Dated: October 15, 2020 New York, New York huh COLLEEN McMAHON Chief United States District Judge