Eisenberg v. New York City Department of Education et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHAEL EISENBERG,
Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF
EDUCATION, et al.,
Defendants.
MEMORANDUM & ORDER
24-CV-01661 (HG) (VMS)
HECTOR GONZALEZ, United States District Judge:
On July 18, 2025, I granted Defendants’ motion to dismiss the Amended Complaint
(“AC”), finding that Plaintiff failed to state a federal claim upon which relief could be granted
and declining to exercise supplemental jurisdiction over his state law claims. See Eisenberg v.
New York City Dep’t of Educ., No. 24-cv-01661, 2025 WL 2022093, at *3 (E.D.N.Y. July 18,
2025) (“Dismissal Order”). The Clerk of Court entered judgment against Plaintiff on July 21,
2025. ECF No. 74 (Judgment).1 Twenty-eight days later, on August 15, 2025, Plaintiff filed a
motion seeking an order: (i) vacating the dismissal; (ii) altering or amending the Judgment; and
(iii) granting him leave to file a proposed second amended complaint, under Fed. R. Civ. P.
59(e), 60(a), 60(b), and 15(a)(2). See ECF No. 75 at 7, 22 (Plaintiff’s Motion, or “Mot.”).2 For
the reasons stated herein, Plaintiff’s motion is DENIED.
1 	Unless otherwise indicated, when quoting cases and the parties’ papers, the Court omits
all internal quotation marks, alteration marks, emphases, footnotes, and citations. The Court
refers to the pages assigned by the Electronic Case Files system (“ECF”).
2 	Plaintiff is a licensed attorney. Although he repeatedly emphasizes that he is proceeding
pro se, the Court does not afford Plaintiff the special latitude generally granted to pro se litigants
for the reasons the Court has already explained to him on several occasions. See December 16,
2024, Text Order; December 27, 2024, Text Order; Eisenberg, 2025 WL 2022093, at *1 n.1.
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LEGAL STANDARD
Rule 59(e) permits a party to move to alter or amend a judgment within 28 days of entry
of the judgment. See Fed. R. Civ. P. 59(e). “A court may grant such a motion where: (1) there
is an intervening change in controlling law; (2) new evidence previously unavailable comes to
light; or (3) it is necessary to remedy clear error of law or to prevent manifest injustice.”
SuperCom, Ltd. v. Sabby Volatility Warrant Master Fund Ltd., No. 21-cv-2857, 2023 WL
3919450, at *1 (S.D.N.Y. Mar. 15, 2023) (citing Kolel Beth Yechiel Mechil of Tartikov, Inc. v.
YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013)). “Rule 59(e) covers a broad range of
motions, and the only real limitation on the type of the motion permitted is that it must request a
substantive alteration of the judgment, not merely the correction of a clerical error, or relief of a
type wholly collateral to the judgment.” Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 153
(2d Cir. 2008). Nevertheless, “[t]he standard for granting a motion for reconsideration is strict,
and the motion will be denied unless the movant points to controlling decisions or information
that the court did not previously consider and that could reasonably be expected to alter the
court’s conclusion.” SuperCom, 2023 WL 3919450, at *1 (quoting Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995)). Rule 59(e) “may not be used to relitigate old matters, or to
raise arguments or present evidence that could have been raised prior to the entry of judgment.”
Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 (2008).
Rule 60(a) permits a court to “correct a clerical mistake or a mistake arising from
oversight or omission whenever one is found in a judgment, order, or other part of the record.”
Fed. R. Civ. P. 60(a). “A motion under Rule 60(a) is available only to correct a judgment for the
purpose of reflecting accurately a decision that the court actually made[,]” not to alter the parties’
substantive rights. See Hodge ex rel. Skiff v. Hodge, 269 F.3d 155, 158 (2d Cir. 2001); see also
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Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir.1994) (“To be correctable under
Rule 60(a), the [alleged error] in a judgment must fail to reflect the actual intention of the
court.”). “Rule 60(a) is not meant to provide a way for parties to relitigate matters already
decided, to change errors in what a court has deliberately done, or to attempt to establish a right
to relief which the court has not previously recognized.” L.I. Head Start Child Dev. Servs., Inc.
v. Econ. Opportunity Comm’n of Nassau Cnty., Inc., 956 F. Supp. 2d 402, 409 (E.D.N.Y. 2013).
Rule 60(b) permits a court to relieve a party from a final judgment for certain enumerated
reasons. See Fed. R. Civ. P. 60(b)(1)–(6). Rule 60(b) is “a mechanism for extraordinary judicial
relief invoked only if the moving party demonstrates exceptional circumstances.” Ruotolo v.
City of New York, 514 F.3d 184, 191 (2d Cir. 2008). Indeed, “for such a motion to succeed the
movant must present highly convincing evidence in support of the motion, show good cause for
the failure to act sooner, and show that no undue hardship will be imposed on the non-moving
party as a result.” Whiddon v. Buzzfeed, Inc., No. 22-cv-4696, 2022 WL 17632593, at *5
(S.D.N.Y. Dec. 13, 2022) (citing Kotlicky v. U.S. Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir.
1987)). “The decision whether to grant a party’s Rule 60(b) motion is committed to the sound
discretion of the district court.” Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). “A Rule 60(b)
motion is properly denied where it seeks only to relitigate issues already decided.” Djenasevic v.
New York, No. 17-cv-6366, 2019 WL 2330854, at *2 (E.D.N.Y. May 30, 2019).
DISCUSSION
I. 	Rule 59(e)
Plaintiff moves to vacate the Judgment under Fed. R. Civ. P. 59(e) “based on newly
discovered evidence produced to Plaintiff in discovery by Defense first on April 17, 2025[,] and
continuing through July 2, 2025.” See Mot. at 8. “Whether relief is sought under Rule 59(e) or
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Rule 60(b)(2), courts apply the same strict standard, and decisions under either are authoritative.”
Francis v. Culley, No. 20-cv-3326, 2021 WL 3660719, at *9 n.14 (E.D.N.Y. Aug. 18, 2021).3
“The party seeking relief from judgment has an onerous standard to meet.” United States v. Int’l
Bd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001).
To prevail on a motion for relief from a judgment on the grounds of newly
discovered evidence, a party must establish that: 	(1) the newly discovered
evidence was of facts that existed at the time of trial or other dispositive
proceeding, (2) the movant must have been justifiably ignorant of them despite
due diligence, (3) the evidence must be admissible and of such importance that
it probably would have changed the outcome, and (4) the evidence must not be
merely cumulative or impeaching.
Metzler Inv. Gmbh v. Chipotle Mexican Grill, Inc., 970 F.3d 133, 146–47 (2d Cir. 2020). Here,
the analysis need not go any further than the second factor, where it fails.
A. 	Justifiable Ignorance, Despite Due Diligence
Plaintiff fails to demonstrate that he was justifiably ignorant of the facts despite due
diligence. “Evidence is not ‘newly discovered’ if it was in the moving party’s possession prior
to the entry of judgment.” Johnson v. Askin Cap. Mgmt., L.P., 202 F.R.D. 112, 114 (S.D.N.Y.
2001). Indeed, “it is beyond cavil that evidence that was actually in the possession of the movant
prior to the challenged order or judgment cannot form the basis for a [Rule 59(e) or] 60(b)
motion.” Miller v. Norton, No. 04-cv-3223, 2008 WL 1902233, at *4 (E.D.N.Y. Apr. 28, 2008),
aff’d sub nom. Miller v. Kempthorne, 357 F. App’x 384 (2d Cir. 2009).
3 	Plaintiff does not appear to bring a motion under Fed. R. Civ. P. 60(b)(2). But to the
extent he intended to do so, the Court construes that portion of Plaintiff’s motion to be brought
under Rule 59(e) because he filed his motion within 28 days of the Judgment. See, e.g., Lucio v.
New York City Dep’t of Educ. & Marie Douyon, No. 12-cv-247, 2013 WL 12084546, at *2
(S.D.N.Y. May 16, 2013) (“Notwithstanding a plaintiff’s own reliance on Rule 60(b), where a
post-judgment motion is timely filed and calls into question the correctness of that judgment it
should be treated as a motion under Rule 59(e), however it may be formally styled.”) (citing
Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982)).
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As Defendants correctly point out, at least some of the evidence Plaintiff attaches was
either already in his possession, e.g., his own emails, or could have been obtained by him earlier,
e.g., the New York Post article he pulled from the Wayback Machine.4 See ECF No. 82 at 10–
12 (Defendants’ Opposition, or “Opp.”). Such evidence cannot form the basis of a Rule 59(e)
motion.
Likewise, the evidence that Plaintiff obtained through Defendants’ productions in this
action was also in his possession before the Judgment was entered. Although his motion is
vague about when he obtained each piece of “new evidence,”5 Plaintiff received the latest of
these documents on July 2, 2025, and the Judgment was entered on July 21, 2025—19 days later.
Plaintiff argues that the partial discovery provided on July 2, 2025, “could not have been
presented to the Court prior to its decision on Defendants’ motion to dismiss, despite Plaintiff’s
diligent efforts” because he was “in an inaccessible location” from June 23, 2025, to July 19,
2025. See ECF No. 85 at 2 (Plaintiff’s Reply in Support of Motion, or “Reply”). Yet during
Plaintiff’s time in the “inaccessible location,” he was still vigorously litigating this matter—
including by filing five separate docket entries.6 Plaintiff’s failure to review the documents in
4 	The Wayback Machine is a free internet tool that captures and archives snapshots of
websites. See https://archive.org/about/.
5 	See, e.g., Mot. at 8 (“The evidence, primarily obtained from Defense disclosures on July
2, 2025, or through subsequent diligent research . . . .”) (emphasis added); id. at 9 (“A
significant portion of the new information . . . was unknown until July 2, 2025, or notice was
received long after the events) (emphasis added).
6 	See ECF No. 67 (Plaintiff’s Opposition to Defendants’ Motion for a Protective Order,
filed at 7:38 A.M. on June 27, 2025); ECF No. 68 (Plaintiff’s First Set of Requests for
Admission, filed at 11:36 A.M. on June 27, 2025); ECF No. 70 (Plaintiff’s Letter to Magistrate
Judge Scanlon, filed at 10:21 A.M. on July 9, 2025); ECF No. 71 (Copy of Plaintiff’s Email to
Defendants’ Counsel re: Deadlines, filed at 10:21 A.M. on July 9, 2025); ECF No. 72 (Plaintiff’s
Letter to Magistrate Judge Scanlon, filed at 6:09 A.M. on July 11, 2025).
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the 19 days between Defendants’ production and the Judgment constitutes neither “justifiable
ignorance” nor “due diligence” for Rule 59(e) purposes.
B. 	Admissibility and Outcome-Changing Probability
In any event, Plaintiff also fails to demonstrate that the “newly discovered” evidence is
(i) admissible, and (ii) of such importance that it probably would have prevented dismissal of this
action. See Metzler, 970 F.3d at 146–47. First, Plaintiff states only in conclusory fashion that
“[t]he new evidence is admissible,” Mot. at 9, without offering any explanation. Additionally,
while Plaintiff claims that the new evidence “profoundly impacts the probable outcome,” and
“directly addresses the Court’s identified deficiencies,” id., none of the evidence he attaches
would have changed the outcome of the motion to dismiss.7
For example, Plaintiff attaches exhibits containing details of workplace complaints
against him, including sexual harassment allegations of which he was previously unaware. See
ECF Nos. 79-4; 79-5; 79-6; 79-8. He presents these exhibits as additional allegedly adverse
actions. See Mot. at 8 (describing ECF Nos. 79-5 and 79-8 as “New Unnoticed Retaliatory
Investigations”); ECF No. 77 at 1 (List of Selected New Evidence) (describing same as “Adverse
Actions”). Yet Plaintiff fails to meet his burden to demonstrate that these exhibits are “of such
importance that [they] probably would have” prevented dismissal of this action. See Metzler,
970 F.3d at 146–47. Plaintiff does not explain how evidence of these investigations resolves the
7 	As for “new evidence” that Plaintiff vaguely describes without attaching, see Mot. at 9
(describing Defendants’ emails and internal discussions), I decline to credit his self-serving and
conclusory descriptions. His descriptions, even if they had been included in the AC, cannot
advance a finding of facial plausibility for any of Plaintiff’s federal claims. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.”).
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AC’s failure to plausibly allege a causal connection between (i) alleged adverse employment
actions and (ii) his protected speech (i.e., his union activities from 2017–present and his
“whistleblowing” in June and October of 2022). See Eisenberg, 2025 WL 2022093, at *4–5.
The AC’s temporal proximity issue remains unresolved, see id., given that these “newly
discovered” investigations occurred either prior to or over a year after his alleged
whistleblowing. See ECF No. 79-6 (workplace complaint filed by Assistant Principal Morales
on February 2, 2022); ECF No. 79-4 (workplace complaint filed by Assistant Principal Morales
on April 6, 2022); ECF No. 79-8 (workplace complaint filed by Assistant Principal Morales on
July 20, 2023); ECF No. 79-5 (workplace complaint filed by Assistant Principal Young
sometime between September 18, 2024, and December 17, 2024). And the AC’s failure to
plausibly allege Defendants’ knowledge of the protected speech also remains unresolved, as
none of the exhibits suggest that any of the Defendants knew about Plaintiff’s whistleblowing or
union activities. See Eisenberg, 2025 WL 2022093, at *4–5. Nor do the exhibits indicate that
the workplace complaints against Plaintiff led to disciplinary charges, as required for a retaliation
claim. See, e.g., McGrath v. Arroyo, No. 17-cv-1461, 2019 WL 3754459, at *11 (E.D.N.Y. Aug.
8, 2019) (“When an employer undertakes a fact finding investigation in response to a complaint,
that fact finding investigation is not itself grounds for a retaliation claim. Indeed, the law must
give breathing room for such investigations to be carried out.”) (citing Cox v. Onondaga Cnty.
Sheriff’s Dep’t, 760 F.3d 139, 146–47 (2d Cir. 2014); Tepperwien v. Entergy Nuclear
Operations, Inc., 663 F.3d 556, 568–70 (2d Cir. 2011)). In short, the allegedly “newly
discovered evidence” that Plaintiff attaches does not change my conclusion that Plaintiff failed to
state a federal claim upon which relief could be granted.
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II. 	Rule 60(a)
Plaintiff next seeks to vacate the Judgment under Fed. R. Civ. P. 60(a) by arguing that I
overlooked or misconstrued allegations in the AC. See Mot. at 7, 11 (“[T]he Court’s
interpretation of the []AC inadvertently overlooked or misconstrued certain well-pleaded factual
allegations, leading to an incomplete assessment of Plaintiff’s claims.”); Reply at 3 (“[The
Court’s] omissions and inadvertent inaccurate representations of the factual allegations pled
prejudice Plaintiff’s fair presentation of his case and thus warrant vacatur.”).
“Rule 60(a) allows for the correction of clerical mistakes, oversights, and omissions in
order to implement the result intended by the court at the time an order was entered.” Weiming
Chen v. Ying-Jeou Ma, 595 F. App’x 79, 80 (2d Cir. 2015) (citing Rezzonico v. H & R Block,
Inc., 182 F.3d 144, 150 (2d Cir.1999)). “However, a court acting pursuant to Rule 60(a) may not
make changes that alter the original meaning of an order to correct a legal or factual error.” Id.
Plaintiff goes on at length about why he disagrees with my decision, going so far as to
submit dozens of pages of “comprehensive clarifications, new information and evidence, and
direct responses to the Court’s identified deficiencies in the []AC,” which he claims “decisively
address[es] and cur[es] the defect of futility identified by the Court.” Mot. at 7, 11–14; see also
generally ECF No. 76 (Plaintiff’s Responses to Specific Pleading Defects Noted in Dismissal
Order); Reply at 3–4. However, he fails to identify any clerical errors, oversights, or omissions
in the Dismissal Order that would provide a basis for Rule 60(a) relief.8 The 35-page Dismissal
8 	Although Plaintiff lists what he considers to be “omissions, misstatements, and
misconstructions of the []AC pleadings” by the Court, see Reply at 3–4, these amount to
revisionist readings of the Amended Complaint that the Court does not credit. For example,
Plaintiff points to a parenthetical in the background section of the Dismissal Order, which
mentioned that “at least some of” the sexual misconduct allegations filed by students and
colleagues against Plaintiff were later determined to be unsubstantiated. See id. at 4 (citing
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Order accurately reflects my decision to dismiss Plaintiff’s federal claims with prejudice for
failure to state a claim and my decision to decline to exercise supplemental jurisdiction over his
state law claims. See Weiming, 595 F. App’x at 80. Plaintiff’s invocation of Rule 60(a) is an
improper attempt to re-litigate that dismissal.
III. 	Rule 60(b)(3)
Next, Plaintiff argues that the Judgment should be vacated under Fed. R. Civ. P. 60(b)(3),
due to “Defendants’ misrepresentation and misconduct[.]” Mot. at 14–15; see also Reply at 2–3.
Rule 60(b)(3) provides for relief from judgment where there is “fraud [], misrepresentation, or
misconduct by an opposing party.” See Fed. R. Civ. P. 60(b)(3). “A Rule 60(b)(3) motion
cannot be granted absent clear and convincing evidence of material misrepresentations[.]”
Entral Grp. Int’l, LLC v. 7 Day Cafe & Bar, 298 F. App’x 43, 44 (2d Cir. 2008) (citing Fleming
v. N.Y. Univ., 865 F.2d 478, 484 (2d Cir. 1989)). To prevail, “a movant must show that the
conduct complained of prevented the moving party from fully and fairly presenting his case.” Id.
(citing State St. Bank and Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d
Cir. 2004)).
Eisenberg, 2025 WL 2022093 at *2). He now claims to have pled that “all allegations” against
him were found unsubstantiated, Reply at 4 (citing AC ¶ 269) (emphasis in original), and
therefore the Court misconstrued his pleadings and should vacate the dismissal. Not so. The
specific sentence Plaintiff cites, AC ¶ 269, related solely to a state law libel claim over which I
declined to exercise supplemental jurisdiction. That sentence had no bearing on my finding that
Plaintiff failed to adequately plead any federal claims. Plaintiff’s argument is unsupported by
the actual content and context of AC ¶ 269. Plaintiff did not allege that all of the sexual
misconduct allegations filed by students and colleagues against him were found unsubstantiated,
as he now claims. AC ¶ 269 merely alleged that an investigation into the “Schettini” incident
found the related allegations of sexual harassment made by two of Plaintiff’s colleagues to be
unsubstantiated. See AC ¶¶ 109, 258–77.
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According to Plaintiff, Defendants “knowingly misrepresented that the investigation
initiated on September 15, 2022, actually commenced on April 6, 2022” to “break the chain of
causation” between Plaintiff’s whistleblowing activity in June 2022 and his subsequent
reassignment and removal from classes in October 2022. See Mot. at 14–15; see also Reply at 3.
Plaintiff claims that Defendants’ deliberate withholding of this “material information, despite
discovery obligations, underscores Defendants’ intent to mislead the Court and obstruct justice.”
Mot. at 15. Defendants, in turn, characterize Plaintiff’s argument as “unfounded and baseless”
and argue that “the documents attached to Plaintiff’s own motion papers confirm that the
complaint was referred for investigation on April 6, 2022, and there is no factual basis for the
September 15 date he asserts.” Opp. at 13.
I agree with Defendants that none of the documents Plaintiff cites to or attaches “clearly
establish an investigation start date of September 15, 2022,” as he claims. Reply at 3. Upon
careful review of Plaintiff’s exhibits, none even mentions that date. See ECF Nos. 78–79. Nor
does Plaintiff demonstrate that Defendants prevented him from fully and fairly presenting his
case. This is especially apparent when considering that Plaintiff already raised the September 15
argument in his opposition to the motion to dismiss, see ECF No. 42 at 28 (accusing Defendants
of “erroneous assertions regarding the timeline of Plaintiff’s reassignment”), and the Dismissal
Order explained that he would need more than allegations of temporal proximity to demonstrate
a causal connection between his whistleblowing and alleged adverse employment actions. See
Eisenberg, 2025 WL 2022093, at *5. In short, Plaintiff fails to meet his burden to demonstrate
clear and convincing evidence of fraud, material misrepresentations, or misconduct by
Defendants that prevented Plaintiff from fully and fairly litigating his case. See Entral, 298 F.
App’x at 44.
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IV. 	Rule 60(b)(6)
To the extent Plaintiff seeks relief under Rule 60(b)(6), his motion is further denied.
Rule 60(b)(6) “‘only applies if the reasons offered for relief from judgment are not covered
under the more specific provisions of Rule 60(b)(1)–(5).’” Gustavia Home, LLC v. Hoyer,
No. 16-cv-4015, 2022 WL 875096, at *4 (E.D.N.Y. Mar. 23, 2022) (quoting Warren v. Garvin,
219 F.3d 111, 114 (2d Cir. 2000)); see also ISC Holding AG v. Nobel Biocare Fin. AG, 688 F.3d
98, 109 (2d Cir. 2012) (“Rule 60(b)(6) relief is only available if Rules 60(b)(1) through (5) do
not apply[.]”). Here, Rule 60(b)(3) squarely covers Plaintiff’s argument that the Judgment
should be vacated due to Defendants’ purported misrepresentation of an investigation’s
commencement date, see Mot. at 15–16.
V. 	Leave to File a Proposed Second Amended Complaint
Finally, although a judgment was entered and this case is closed, Plaintiff seeks leave to
file a proposed second amended complaint.9 See Mot. at 7. “It is well established that a party
seeking to file an amended complaint post-judgment must first have the judgment vacated or set
aside pursuant to Fed. R. Civ. P. 59(e) or 60(b).” Metzler, 970 F.3d at 142. Indeed, “it would be
contradictory to entertain a motion to amend the complaint without a valid basis to vacate the
9 	As I noted when denying his request to file a third complaint in this case, Plaintiff had
effectively already been given two opportunities to amend his pleadings. See Eisenberg, 2025
WL 2022093, at *16. Plaintiff made his first request for leave to amend, ECF No. 32, on
December 11, 2024—seven months after his right to amend under Rule 15(a)(1) had expired, and
three months after Defendants’ motion to dismiss the Complaint was fully-briefed, see ECF
No. 26 (Defendants’ First Motion to Dismiss); ECF No. 27 (Plaintiff’s First Opposition); ECF
No. 28 (Defendants’ First Reply). I granted that request after giving Defendants an opportunity
to be heard. See January 9, 2025, Text Order. Then, in deciding Defendants’ motion to dismiss
the AC, see ECF No. 41 (Defendants’ Second Motion to Dismiss); ECF No. 42 (Plaintiff’s
Second Opposition); ECF No. 44 (Defendants’ Second Reply), I granted Plaintiff leeway by
considering new allegations raised in his Opposition, even though he is a licensed attorney. See
Eisenberg, 2025 WL 2022093, at *16.
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previously entered judgment.” Id. “To hold otherwise would enable the liberal amendment
policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality
of judgments and the expeditious termination of litigation.” Id. “If there is no basis to vacate or
set aside the judgment, the [moving] party should not be granted the opportunity to file an
amended pleading.” Obra Pia Ltd. v. Seagrape Investors LLC, No. 19-cv-7840, 2021 WL
1978545, at *3 (S.D.N.Y. May 18, 2021). Accordingly, Plaintiff’s request to file a second
amended complaint is denied.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion seeking to vacate, alter, or amend the
judgment in this case and to file a second amended complaint, see ECF No. 75, is DENIED.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
January 2, 2026
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