Free Order on Motion to Reopen Case - District Court of Delaware - Delaware

Case 1:06-cv—00435-Gl\/IS Document 19 Filed 04/11/2007 Page 1 of 3
TN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOSEPH L. D’ALESSANDRO )
)
Plaintiff, )
)
v. ) Civ. No. 06-435-GMS
)
STATE OF DELAWARE, et al., )
)
MEMORANDUM ORDER
The plaintiff, Joseph L. D’Alessandro ("D’Alessandro"), proceeds pro se and filed this
lawsuit on July 14, 2006. (D.I. 1.) On November 16, 2006, the court dismissed the case as
frivolous. (D.I. 16.) Now before the court are the plaintiff, Joseph L. D’Alessandro’s motions to
reopen the case which the court construe as motions for reconsideration pursuant to Fed. R. Civ.
P. 60. (D.I. 17, 18.) D’Alessandro filed an identical motion in D’Alessandro v. American Civil
Liberties Union, Civ. Action No. 06-212-GMS (D. Del.)
D’Alessandro refers to Rule 60(b) ofthe Federal Rules of Civil Procedure in support of
his motion which provides a party may file a motion for relief from a final judgment for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence by which due diligence could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released or
discharged, or a priorjudgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have
prospective application; or (6) any other reason justifying relief from the operation
of the judgment.
Fed. R. Civ. P. 60(b).

Case 1 :06-cv—00435-GIVIS Document 19 Filed 04/1 1/2007 Page 2 of 3
D’Alessandro makes reference to "mistakes; inadvertence; excusable neglect; newly
discovered evidence; fraud, etc." but his motion contains no argument in this regard. Instead,
D’Alessandro contends that the court ignored and/or violated the law, decided the case without
the evidence of a single witness, and violated D’Alessandro’s First Amendment rights. It
appears, therefore, that D’Alessandro claims the court made an error of law in reaching its
decision of November 16, 2006.
Accordingly, the court construes the motion as one under Rule 59(e), as opposed to one
under Rule 60. See Smith v. Evans, 853 F.2d 155, 158-59 (3d Cir. 1988). A Rule 59(e) motion
is the proper device a litigant should use to "to relitigate the original issue." Pittsburgh Terminal
Corp. v. Baltimore & Ohio R.R., 824 F.2d 249, 253 (3d Cir.l987). Under Fed. R. Civ. P. 59(e), a
party seeking to alter or amend a judgment must establish one of the following grounds for
reconsideration: "(1) an intervening change in the controlling law; (2) the availability of new
evidence that was not available when the court granted the motion for summary judgment; or (3)
the need to correct a clear error of law or fact or to prevent manifest injustice." Max ’s Seafood
Cafe, by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. l999)(citing North River Ins.,
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
D’Alessandro provides no valid reason for the court to reconsider its November 16, 2006
ruling. There is no need to correct a clear error of law or fact or to prevent manifest injustice.
Notably, D’Alessandro has not demonstrated any of the grounds necessary to warrant
reconsideration and, therefore, his motion will be denied.
NOW THEREFORE, at Wilmington this jg day of [ p ,` j , 2007, IT
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Case 1 :06-cv—00435-GIVIS Document 19 Filed 04/1 1/2007 Page 3 of 3
IS HEREBY ORDERED that the Motion for Reconsideration (D.I. 16) is DENIED.
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