Derti v. Barg
- Vincent Briccetti
- 7:19-cv-10215
- U.S. District Court · Southern District of New York
- 2
In Derti v. Barg, Judge Briccetti denied reconsideration and ordered judgment for defendants after Derti missed the amended-complaint deadline.
Naser Derti and defendants Sergeant Barg, Eric Gutwein, D. Venetozzi, and Anthony Annucci; the case was closed with judgment entered in the defendants’ favor.
What happened
In Derti v. Barg, the court had previously dismissed Naser Derti’s amended complaint and allowed him to file a second amended complaint by a later deadline. Derti was representing himself.
Derti filed a submission that repeated his earlier opposition to the defendants’ request to dismiss the amended complaint. The court treated it as a request to reconsider its earlier decision, but Derti did not identify a change in the law, new evidence, or a clear error. He also did not file a second amended complaint or request more time by the March 15, 2022 deadline.
Judge Vincent L. Briccetti denied Derti’s request for reconsideration. He directed the Clerk to enter judgment in the defendants’ favor and close the case, and denied Derti’s request to proceed without paying filing fees on appeal.
The detailed version
- Derti v. Barg · No. 7:19-cv-10215
- Vincent Briccetti
- Mar. 31, 2022
Background
Naser Derti, representing himself and proceeding without paying filing fees, filed a submission titled “Reply to Notice of Motion to Dismiss.” The court found that the submission was identical to Derti’s earlier opposition to the defendants’ motion to dismiss his amended complaint, except that Derti changed the date on the document.
The court liberally construed the submission as a motion for reconsideration of its October 12, 2021 Opinion and Order. In that earlier order, the court had granted the defendants’ motion to dismiss the amended complaint. It dismissed Derti’s constitutional claims as time barred and dismissed his claims against Anthony Annucci for lack of personal involvement. The court had also allowed Derti to file a second amended complaint by December 13, 2021, and later extended the deadline twice, ultimately requiring filing by March 15, 2022.
Motion for reconsideration
A motion for reconsideration asks the court to revisit an earlier ruling. The court explained that such a motion generally requires an intervening change in controlling law, new evidence, or a need to correct a clear error or prevent serious unfairness. Derti did not show any of those circumstances. Instead, he refiled his earlier opposition to the motion to dismiss. The court held that this was insufficient and denied Derti’s motion for reconsideration.
Failure to file a second amended complaint
The court stated that Derti had not filed a second amended complaint or requested additional time by the March 15, 2022 deadline. The court also stated that it had not received returned mail or other indication that Derti failed to receive the orders extending his deadline. Because the defendants’ motion to dismiss the amended complaint had already been granted and Derti did not meet the final deadline, the court directed the Clerk to enter judgment in the defendants’ favor and close the case.
Appeal status
The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. It therefore denied Derti permission to proceed without paying filing fees for an appeal. The order stated that a copy would be mailed to Derti.
Disposition
The motion for reconsideration was denied. The Clerk was directed to enter judgment in the defendants’ favor and close the case.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.