Opinion
03 Civ. 4257 (WHP).
June 20, 2005
Raymond D. McElfish, Esq., Teresa Gruber, Esq., McEflish Associates, LLC, New York, New York, Counsel for Plaintiff.
Philip A. Bramson, Esq., Schindel, Farman Lipsius LLP, New York, Counsel for Defendant Progressive.
Myra Needleman, Esq., London Fischer LLP, New York, NY, Counsel for Defendant Eagle.
Adam Zoldessy, Esq., Elias N. Fillas, Esq., Tomino Sacco, P.C., Whitestone, New York, Counsel for Defendant Sung-lk Jung.
MEMORANDUM AND ORDER
On May 5, 2005, this Court granted Plaintiff Connecticut Indemnity Company's ("Connecticut Indemnity") motion for summary judgment, and granted in part and denied in part Defendant Progressive Casualty Insurance Co.'s ("Progressive") motion for summary judgment. Progressive now moves to amend that ruling pursuant to Federal Rule of Civil Procedure 59(e) on the ground that this Court did not decide an issue raised by Progressive. (Progressive's Memorandum of Law in Support of Reconsideration, dated May 11, 2005 ("Progressive Mem.") at 1 (citing Progressive's Reply Memorandum in Support of Summary Judgment, dated Dec. 9, 2004, at 2-3).)
In its filings, Progressive refers to itself as United Financial Casualty Company. However, the policy at issue refers to the Progressive Casualty Insurance Co. and defendant has made no application for substitution of parties.
For the reasons set forth below, Progressive's motion is denied.
DISCUSSION
I. Standard for Rule 59(e) Motion for Reconsideration"Motions for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil Procedure are governed by the same standards as those governing motions under Rule 6.3 of the Local Civil Rules of the U.S. District Courts for the Southern and Eastern Districts of New York." Naiman v. N.Y. Univ. Hosp. Ctr., No. 95 Civ. 6469 (RPP), 2005 WL 926904, at *1 (S.D.N.Y. Apr 21, 2005); see also JPMorgan Chase Bank v. Cook, 322 F. Supp. 2d 353, 354 (S.D.N.Y. 2004). This standard is "strict."Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995);In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (A motion for reconsideration is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." (internal quotation marks and citation omitted)).
The decision to grant a motion for reconsideration is within the sound discretion of the district court. In re Currency Conversion Antitrust Fee Litig., 361 F. Supp. 2d 237, 246 (S.D.N.Y. 2005); accord Dietrich, 76 F. Supp. 2d at 327. The movant bears the burden of demonstrating the need to reconsider a ruling. Anglo Am. Ins. Co. v. CalFed, Inc., 940 F. Supp. 554, 557 (S.D.N.Y. 1996).
II. Progressive's Instant Motion
Progressive argues that this Court did not decide whether Progressive has any obligation under its federal filings. (Progressive Mem. at 1.) Progressive further argues that this Court should amend its judgment to "include a declaration that [Progressive] has no obligation to pay any judgment for damages arising out of the subject motor vehicle accident, because its federal filing is inapplicable to those damages." (Progressive Mem. at 1.)
However, Progressive did not move for summary judgment on that issue. Instead, Progressive sought a "declar[ation] that any obligation [Progressive] may have under its Federal Filing to pay a judgment against any defendant in the Underlying Action is excess to the obligations of Connecticut Indemnity Company and/or Eagle Insurance Company." (Progressive's Motion for Summary Judgment, dated Oct. 28, 2004; see also Progressive's Memorandum of Law in Support of Summary Judgment, dated Oct. 28, 2004, at 13-14.) The issue presented by Progressive's reconsideration motion was raised for the first time in Progressive's reply papers on the underlying summary judgment motion.
It was entirely appropriate for this Court to decline to consider that question on the summary judgment motion. See Bowles v. N.Y.C. Transit Auth., No. 03 Civ. 3073 (BSJ), 2004 WL 548021, at *3 (S.D.N.Y. Mar. 18, 2004) ("The Court need not consider arguments raised for the first time in reply memoranda."); Landau v. New Horizon Partners, Inc., No. 02 Civ. 6802 (JGK), 2003 WL 22097989, at *10 (S.D.N.Y. Sept. 8, 2003) (rejecting argument "raised for the first time in . . . reply papers . . . because the plaintiff had no opportunity to respond to such arguments, and in any event, full consideration and development of this issue requires that the argument be raised in the original moving papers."); Playboy Enters. Inc. v. Dumas, 960 F. Supp. 710, 720 n. 7 (S.D.N.Y. 1997) ("Arguments made for the first time in a reply brief need not be considered by a court.") (collecting cases), aff'd., 159 F.3d 1347 (2d Cir. 1998).
Because Progressive's summary judgment moving papers did not present the issue of whether it has any obligations under its federal filings, this Court declines to reconsider its May 5, 2005 Memorandum and Order. See Peca v. Delta Air Lines, Inc., No. 97 Civ. 0882 (JTE), 2000 WL 914112, at *1-2 (W.D.N.Y. July 7, 2000) (denying reconsideration of issue that defendants did not raise in their moving papers because "courts have an interest in encouraging the parties to present their arguments as completely as possible in the first set of motions"). Further, because "[t]he Court does not and will not make a practice of addressing the merits of issues first raised in a reply, as the opposing party is not afforded any opportunity to respond to new issues raised in a reply," Knapp v. Miller, 873 F. Supp. 375, 378 n. 3 (D. Nev. 1994), Progressive fails to justify the need for reconsideration, Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) ("The major grounds justifying reconsideration are `an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" (quoting 18 C. Wright, A. Miller E. Cooper, Federal Practice Procedure § 4478 at 790)).
CONCLUSION
For the reasons set forth above, Progressive's motion for reconsideration of this Court's May 5, 2005 Memorandum and Order is denied.