17-2874

Reches v. Morgan Stanley & Co. LLC

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 6th 3 day of September, two thousand eighteen.

4

5 PRESENT:

6 PETER W. HALL,

7 RAYMOND J. LOHIER, JR.,

8 Circuit Judges,

9 JANE A. RESTANI,*

10 Judge.

11 _____________________________________

12

13 Benjamin Reches,

14

15 Plaintiff-Appellant,

16

17 v. No. 17-2874-cv

18

19 Morgan Stanley & Co. LLC,

20

21 Defendant-Appellee.

22 _____________________________________

23

24 FOR PLAINTIFF-APPELLANT: BENJAMIN RECHES, pro se, Brooklyn, N.Y.

25

26 FOR DEFENDANT-APPELLEE: ROBERT N. HOLTZMAN (Laura S. Milano on 

27 the brief), Kramer Levin Naftalis & Frankel 

28 LLP, New York, N.Y.

29

 

* Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation.
2

1 Appeal from an order of the United States District Court for the Eastern District of New 

2 York (Cogan, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

4 DECREED that the district court order denying reconsideration is AFFIRMED.

5 Appellant Benjamin Reches, pro se, sued his former employer, Morgan Stanley & 

6 Company, for violations of the Employee Retirement Income Security Act (“ERISA”). He alleged 

7 that Morgan Stanley misclassified his employment status, thereby denying him pension benefits, 

8 during two periods where he was a “1099” or “leased” employee of the company. The district 

9 court dismissed Reches’s complaint as untimely. Reches twice moved for reconsideration, which 

10 the district court also denied. We affirmed both the judgment and denials of reconsideration. See 

11 Reches v. Morgan Stanley & Co. Inc., 687 F. App’x 49 (2d Cir. 2017) (summary order). He 

12 repeatedly moved for reconsideration in the district court, and the district court again denied his 

13 motions. Reches now appeals from the latest denial. We assume the parties’ familiarity with the 

14 underlying facts, the procedural history of the case, and the issues on appeal.

15 We review a district court decision granting or denying a Federal Rule of Civil Procedure 

16 60(b) motion for abuse of discretion. See Molchatsky v. United States, 713 F.3d 159, 162–63 (2d 

17 Cir. 2013) (per curiam). “A district court abuses its discretion if it bases ‘its ruling on an erroneous 

18 view of the law or on a clearly erroneous assessment of the evidence.’” Ins. Co. of N. Am. v. Pub. 

19 Serv. Mut. Ins. Co., 609 F.3d 122, 127 (2d Cir. 2010) (quoting Transaero, Inc. v. La Fuerza Aerea 

20 Boliviana, 162 F.3d 724, 729 (2d Cir. 1998)).

21 The district court did not abuse its discretion. Reches’s arguments about the statute of 
3

1 limitations are barred by the law of the case doctrine, which “commands that ‘when a court has 

2 ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in 

3 the same case’ unless ‘cogent and compelling reasons militate otherwise.’” Johnson v. Holder, 

4 564 F.3d 95, 99 (2d Cir. 2009) (quoting United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 

5 2002)). Compelling reasons include “an intervening change in law, availability of new evidence, 

6 or ‘the need to correct a clear error or prevent manifest injustice.’” Id. at 99–100 (quoting 

7 Quintieri, 306 F.3d at 1230). Here, the district court ruled (and we affirmed) that Reches’s claims 

8 were untimely. Reches, 687 F. App’x at 50–51. And we determined that it was not an error for 

9 the district court to have raised the statute of limitations issue sua sponte. Id. Further, because 

10 the statute of limitations issue was dispositive, Reches’s arguments about the underlying merits, 

11 e.g., that a 2004 pension plan revealed that he was entitled to benefits as a leased or 1099 employee

12 or that he did not need to exhaust administrative remedies, were not and need not have been decided. 

13 Id. at 51.

14 Reches offers no compelling reasons to revisit our prior decision. He argued in the district 

15 court that new evidence—the 2004 pension plan document—shows that his claims could not have 

16 accrued until 2016 (when he alleged he first saw this document). But this document is not new 

17 evidence; it was offered by Morgan Stanley as an exhibit to its motion to dismiss in April 2016,

18 and Reches had the opportunity to raise this argument in his opposition to the motion to dismiss, 

19 which he filed in June 2016. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) 

20 (“The standard for granting [reconsideration] . . . is strict, and reconsideration will generally be 

21 denied unless the moving party can point to controlling decisions or data that the court 

22 overlooked . . . . [And it] should not be granted where the moving party seeks solely to relitigate 
4

1 an issue already decided.”). Further, the district court’s decision on the statute of limitations issue 

2 was not based on a construction of the 2004 plan document but rather on when Reches was aware 

that he was not a “regular” Morgan Stanley employee.

1 3 Therefore, the district court did not err by 

4 denying reconsideration because the 2004 plan would not have altered the district court’s decision. 

5 See United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (to prevail on a 

6 motion for reconsideration based on new evidence, the movant must show “that it probably would 

7 have changed the outcome” (internal citation omitted)).

8 Reches additionally argues that Morgan Stanley misrepresented that he was an independent 

9 contractor at one time and a leased employee during another period and that the district court 

10 erroneously relied on these misrepresentations. But the district court did not rely solely on Morgan 

11 Stanley’s assertion that Reches was an independent contractor when it determined that Reches had 

12 notice that Morgan Stanley “did not classify [Reches] as its [regular] employee.” ROA doc. 25 at 

13 5. It relied on Reches’s own allegations that he was a “direct bill 1099 employee” from 1988 to 

14 1990 who “billed [Morgan Stanley] directly” and “a leased employee” of a third-party company 

15 from 1997 to 2001. Compare id. with ROA doc. 1 at 7-9. Thus, the district court did not clearly 

16 err by using the term “independent contractor” or “leased employee” to describe Reches’s 

17 relationship with Morgan Stanley because it primarily relied on Reches’s descriptions of his 

18 employment.

19 We have considered all of Reches’s remaining arguments and find them to be without merit. 

 1 We use the term “regular” (as Reches does) to distinguish (1) Reches’s employment with Morgan 

Stanley between 1990 and 1996 and from 2001 onwards from (2) his periods working as a 1099 

employee from 1988 to 1990 and as a leased employee from 1997 to 2001.
5

1 For the foregoing reasons, the order of the district court is AFFIRMED.

2 FOR THE COURT: 

3 Catherine O’Hagan Wolfe, Clerk of Court