Summary
awarding pre-judgment interest at rate of 18% per annum
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Case no. 01-15472 (SMB)
March 10, 2003
DUANE MORRIS LLP, Corporation d/b/a MetTel, New York, New York, Attorneys for Manhattan Telecommunications.
Fran M. Jacobs, Esq. Of Counsel.
MAYNE MILLER, ESQ., New York, New York, Attorney for Debtor.
On December 11, 2002, I granted in part and denied in part the motion by Manhattan Telecommunications Corporation ("MetTel") for partial summary judgment overruling the debtor's objection to MetTel's proof of claim. In re Best Payphones, Inc., Case no. 01-15472, 2002 WL 31767796 (the "Decision"). On December 30, 2002, the Court entered an order (the "Order") (ECF Doc. # 224) reflecting disposition of the motion.
The debtor, Best Payphones, Inc. ("Best"), has moved for reconsideration of certain parts of the underlying decision pursuant to FED. R. BANKR. P. 9024, FED R. CIV. P. 60 and 11 U.S.C. § 502 (j). For the reasons that follow, the motion is denied.
DISCUSSION
A. The Standards Governing the Motion
Initially, the parties disagree over the standards that govern Best's motion. The Federal Rules of Civil procedure do not mention motions for reconsideration. Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999); 12 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 59.30[7], at 59-112 (3rd ed. 2002) ("MOORE"). Nevertheless, courts have generally held that regardless of the title, a motion filed within ten days of the entry of judgment is treated as a motion to alter or amend the judgment under FED. R. CIV. P. 59(e) , while one filed more than ten days after the entry of judgment is treated as a motion seeking relief from the judgment under FED. R. CIV. P. 60(b) . 12 MOORE § 59.30 [7], at 59-112 to 59-114. The same "timing" rules apply to motions to reconsider the allowance or disallowance of claims under 11 U.S.C. § 502 (j) and FED. R. BANKR. P. 3008. In re Aguilar, 861 F.2d 873, 875-75 (5th Cir. 1988).
Rule 59(e) states:
Any motion to after or amend a judgment shall be filed no later than 10 days after entry of the judgment.
Rule 60(b) states in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by 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 prior judgment 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. . . .
Bankruptcy Rule 9024 generally makes Rule 60(b) applicable to bankruptcy proceedings with exceptions or modifications that are not relevant.
Section 502(j) states in relevant part:
A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case.
. . .
Rule 3008 states:
A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.
The foregoing rules only apply, however, to final orders, judgments or proceedings. See Cancel v. Mazzuca, No. 01 Civ. 3129 (NRB), 2002 WL 1891395, at *3 (S.D.N.Y. Aug. 15, 2002) (Rule 60(b)); Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999) (Rule 59(e)) In re New Concept Hous., Inc., 951 F.2d 932, 935 (8th Cir. 1991) (Bankruptcy Rule 3008); In re Shook, 278 B.R. 815, 828 n. 13 (B.A.P. 9th Cir. 2002) (same); see generally 12 MOORE § 60.23, at 60-75 to 60-77 (Rule 60(b)); 9 ALAN N. RESNICK HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 3008.01[3], at 3008-4 to 3008-5 (15TH ed. rev. 2002) (Rule 3008) ("COLLIER"). Here, the Order partially granted and partially denied summary judgment allowing MetTel's proof of claim, and was, therefore, not final. See United States v. 228 Acres of Land Dwelling, 916 F.2d 808, 810-11 (2d Cir. 1990); Cancel v. Mazzuca, No. 01 Civ. 3129 (NRB), 2002 WL 1891395, at *3 (S.D.N.Y. Aug. 15, 2002). As a result, these rules do not govern Best's motion.
Contrasting Rule 59(e) with Rule 60(b), Broadway v. Norris stated that Rule 60(b) applied to non-final orders. 193 F.3d at 989. This conclusion is not supported by the language of Rule 60(b) or the cases or commentators that have addressed the question.
A court may nevertheless reconsider its interlocutory orders pursuant to its inherent authority, United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982), cert. denied, 460 U.S. 1070 (1983), or under FED. R. CIV. P. 54(b). The latter rule provides, in this regard, that an interlocutory order that has been not certified as a final judgment "is subject to revision at any time before the entry of [final] judgment." The court should, however, cautiously exercise this authority. Complete disposition of discrete issues and claims is often essential to effective case management. 10 MOORE § 54.25[4], at 54-87. If a court is forced to revisit earlier interlocutory rulings, "much of the advantage in making the early rulings would be lost." Id.
Consequently, a court need not revisit an uncertified interlocutory order unless doing so would be consistent with the doctrine of law of the case. Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers Lybrand, LLP, No. 01-9432, 2003 WL 402156, at *13 (2d Cir. Feb. 20, 2003); 10 MOORE § 54.25[4], at 54-87; see Virgin Atl. Airways. Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). Thus, reconsideration of non-final orders is "subject to thecaveat that `where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.'" Official Committee of Unsecured Creditors of Color Tile, Inc., 2003 WL 402156, at *13 (quoting Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964). "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.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d at 1255 (quoting 18 CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE PROCEDURE § 4478, at 790); accord Official Committee of Unsecured Creditors of Color Tile, Inc., 2003 WL 402156, at *13-14.
Finally, Local Bankruptcy Rule 9023-1(a) amplifies the standards for reconsideration. BANKR. S.D.N.Y.R. 9023-1(a) states:
A motion for reargument shall be served within 10 days after the entry of the Court's determination of the original motion and, unless the Court orders otherwise, shall be made returnable within the same amount of time as required for the original motion. The motion shall set forth concisely the matters or controlling decisions which counsel believes the Court has not considered. No oral argument shall be heard unless the Court grants the motion and specifically orders that the matter be re-argued orally.
Under this rule, the moving party must show that the court overlooked controlling decisions or factual matters "that might materially have influenced its earlier decision." Anglo-American Ins. Group v. Calfed, Inc., 940 F. Supp. 554, 557 (S.D.N.Y. 1996) (quoting Morser v. AT T Information Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989)); accord Farkas v. Ellis, 783 F. Supp. 830, 832-33 (S.D.N.Y.), aff'd 979 F.2d 845 (2d Cir. 1992). The rule permitting reargument must be narrowly construed to avoid repetitive arguments on issues that the court has already fully considered. Farkas v. Ellis, 783 F. Supp. at 832. Further, and subject to the rules governing newly discovered evidence, the parties cannot advance new facts or arguments, and may not submit affidavits or new material.See Pereira v. Aetna Cas. Sur. Co. (In re Payroll Express Corp.), 216 B.R. 713, 716 (S.D.N.Y. 1997).
B. Grounds for Reconsideration
1. The Chaite Declaration
Best formerly purchased dial tone services from the North American Telecommunications Corporation, ("Natelco"), switched to MetTel, and then switched back to Natelco. During the second Natelco period, Natelco filed a chapter 11 bankruptcy, and entered into an agreement to sell its assets, including its customer accounts, to MetTel.
Michael Chaite, Best's president, submitted a declaration in the Natelco bankruptcy in opposition to the proposed sale of Natelco's assets to MetTel. He stated under the penalty of perjury that "there were no billing disputes with Natelco as there had been with MetTel." Decision at *3. I concluded that Chaite could not defeat summary judgment by contradicting his earlier declaration through a new affidavit claiming Best had disputed Natelco's bills. Decision at *9. Best has asked for reconsideration, contending that the statement in his earlier declaration was qualified, and did not contradict his testimony in opposition to MetTel's summary judgment motion.
Although the Decision correctly quoted the declaration, it incorrectly paraphrased it, referring to the absence of "billing disputes between the Debtor and MetTel." Decision at *8. As noted, the declaration discussed the absence of billing disputes between Best and Natelco.
Best's attempt to qualify or limit the thrust of Chaite's declaration testimony was considered and rejected. Decision at *9 n. 11. The current motion merely rehashes Best's earlier opposition. It fails, however, to identify anything that was overlooked, or point to a clear error or a manifest injustice.
2. Natelco's Waiver
Although never mentioned in its original claim objection, Best eventually contended that Natelco had waived its claims under the Natelco Agreement # 1. Chaite attested to an agreement — he never identified the individuals who made it — under which Natelco agreed to "forgive" the charges that could not be documented, and accept 50% on those that could. (Reply to Declaration of David Aronow Deemed Motion for Summary Judgment on Debtor's Objection to Mettel's Proofs of Claim, dated Oct. 11, 2002, at ¶ 20) (ECF Doc. # 158.) Chaite stated that this agreement was memorialized in a letter (which Best never produced) and confirmed in an e-mail. (See id. ¶¶ 20-21.) I considered two e-mails produced by Best during oral argument, and concluded that they failed to raise a triable issue regarding the issue of waiver. See Decision at *8.
As MetTel has noted, I rejected the waiver argument as a matter of law for additional reasons.
Best has asked me to reconsider its waiver argument, and has offered two additional declarations in further support. The Declaration of Michael Chaite in Support of Application For an Order Grantin Reconsideration of Order Disposing Of Motion for Summary Judgment and Allowing Claim of MetTel in Part, dated Jan. 9, 2003, (ECF Doc. # 230), mainly repeats the statements in the Chaite declaration submitted in opposition to the motion for summary judgment. Chaite again mentions a waiver agreement, using the passive voice ("an agreement was reached"), without identifying the individuals who made the agreement. ( Id. ¶ 2.) He also refers to the memorialization of the agreement, and offers an explanation of the circumstances under which the agreement arose. ( Id.)
Best is essentially asking me to reach a different conclusion based on the same evidence I previously considered. To the extent that Chaite's new declaration amplifies or supplements the evidence regarding the "execution" of the waiver agreement, it does not meet the criteria for "new evidence." Where reconsideration is sought based on new evidence, the motion should be judged under FED. R. CIV. P. 60(b)(2), Johnson v. Askin Capital Mgmt., L.P., 202 F.R.D. 112, 114 (S.D.N.Y. 2001); Morin v. Turpin, 809 F. Supp. 1081, 1086 (S.D.N.Y. 1993). The movant must satisfy five requirements: (1) the newly discovered evidence must concern facts that existed at the time of the earlier proceeding, (2) the movant must have been "justifiably ignorant of them despite due diligence," (3) the evidence must be admissible, (4) the new evidence must be sufficiently important to probably change the outcome and (5) the evidence must not be merely cumulative or impeaching. United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001); Johnson v. Askin Capital Mgmt., L.P., 202 F.R.D. 112, 114 (S.D.N.Y. 2001). Chaite obviously could have included this information in his declaration opposing summary judgment. Hence, it is not "new."
FED. R. CIV. P. 60(b)(2) allows a court to grant relief from an earlier order based upon "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)."
The Declaration of Charles H. Ryans, Jr., Esq. in Support of Reconsideration, dated Jan. 9, 2003 ("Ryans Declaration") (ECF Doc. # 231), is apparently offered to rebut the notion that the waiver defense was "newly minted," see Decision at *7, and as "further evidence of the existence of the agreement at the time that the Debtor returned to NATelco." (Application for an Order Granting Reconsideration of Order Disposing of Motion for Summary Judgment and Allowing Claim of MetTel in Part, dated Jan. 9, 2003, ("Reconsideration Motion"), at ¶ 20) (ECF Doc. # 230.) Ryans represented Best in state court litigation brought by MetTel. According to Ryans, the president of MetTel, David Aronow, advised him that MetTel had recently discovered an additional debt of $32,000.00 that had arisen under the Natelco Agreement # 1, and had been assigned to MetTel as part of the Natelco bankruptcy sale. (Ryans Declaration ¶ b.) When Ryans informed Chaite, Chaite told him that the matter had already been resolved, and "[f]rom conversations with Mr. Chaite, my understanding was that NATelco never sent correctly itemized invoices to the Debtor for the disputed amount and that the matter was resolved between Mr. Chaite and NATelCo prior to MetTel taking over NATelCo's accounts." (Id. ¶¶ b, c.)
The Ryans Declaration does not provide "new evidence" of a waiver agreement because it is inadmissible — Ryans lacked personal knowledge of the agreement. In any event, the information in the Ryans Declaration could have been submitted in opposition to the summary judgment motion. Best concedes that it had this information earlier, but maintains that did not submit it because Ryans was unwilling to cooperate until the plan of reorganization was confirmed. (See Debtor's Memorandum of Law on Reconsideration or Order Disposing of Motion for Summary Judgment on Debtor's Obiection to Proof of Claim by MetTel, dated Jan. 9, 2003 ("Best Memorandum"), at 9) (ECF Doc. # 232.) Best could have taken Ryans' deposition.
The other purpose of the Ryans Declaration, to offer non-hearsay evidence of Chaite's prior consistent statement of a waiver agreement, misconstrues the Decision. I did not reject the waiver argument based on an assessment of Chaite's credibility. I rejected it as a matter of law because (1) Best did not raise it in its objection to MetTel's claim, (2) Best did not raise it as an affirmative defense in the state court litigation, and therefore, arguably waived it, (3) Best failed to produce the written agreement Chaite said existed and (4) the exchange of e-mails failed to support the existence of a waiver. Decision at * 7-8.
Under FED. R. EVID. 801(d)(1), a statement is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. . . ."
The omission was intentional. According to Mayne Miller, Esq., Best's lawyer, Chaite discussed the waiver agreement with him when Miller was preparing the claim objection. Miller "suggested that it would be better to defer inserting it as another defense to the Claim until some documentation were [sic] available." (Reconsideration Motion ¶ 21.)
Ryans filed the answer on behalf of Best in that lawsuit. His current declaration fails to explain why he didn't assert the affirmative defense of waiver if Chaite had told him about it. Hence, although Best recently invoked "excusable neglect" to ameliorate the earlier pleading omission, (see Debtor's Supplemental Memorandum of Law on Reconsideration of Order Disposing of Motion for Summary Judgment on Debtor's Objection to Proof of Claim by MetTel, dated Feb. 28, 2003 ("Best Supplemental Memorandum"), at 6) (ECF Doc. # 252), Ryans has neglected to offer any excuse.
In fact, the defenses he did assert were inconsistent with the existence of a waiver. The Fifth Affirmative Defense (¶ 35) alleged that Natelco had received a $45,000.00 deposit, and "failed to apply [the deposit] to any outstanding balances that may have been due to NATELCO by Defendant, if any, when plaintiff allegedly purchased the assets of NATELCO." The Seventh Affirmative Defense (¶ 37) contended that MetTel failed to apply a 20% discount to "any outstanding balances that may have been due to NATELCO by Defendant . . . which was given automatically to all NATELCO subscribers by Plaintiff when Plaintiff allegedly purchased the assets of NATELCO." Referring to the debt under the Natelco Agreement H 1, the Eighth Affirmative Defense (¶ 38) asserted that "Best never received an itemized invoice from NATELCO for $32,344.121." (Debtor's Objection to Proofs of Claim of Manhattan Telecommunications Corporation, dated July 31, 2002, Ex. D) (ECF Doc. # 88.)
3. Pre-Judgment Interest
The Natelco Agreement # 2 provided that interest on unpaid invoiced amounts would accrue at the rate of 1.5% per month, or 18% per annum. TheDecision allowed certain portions due under the Natelco Agreement # 2, and each side submitted a proposed order and a letter brief regarding the appropriate interest rate. MetTel argued that I should award the contract rate while Best pushed for the 9% statutory rate. I resolved the dispute in MetTel's favor. I did not write an opinion, but the Order reflected my conclusion that MetTel was right and Best was wrong.
In its current motion, Best makes the same two arguments that it made in its letter brief. First, the use of the contract rate is limited to foreclosure actions and cases involving promissory notes. Second, the contract rate does not apply to the period after the contract has expired. (Best Memorandum 9-10.)
I implicitly rejected both arguments when I signed the Order, and I explicitly reject them now. A litigant may recover pre-judgment interest in an action based on breach of contract. N.Y.C.P.L.R. 5001, 5002 (McKinney 1992). Under C.P.L.R. 5004, the prevailing interest rate is fixed at nine percent per annum, except where otherwise provided by statute. The parties may nevertheless agree to a different pre-judgment interest rate, 10 JACK B. WEINSTEIN, HAROLD L. KORN ARTHUR R. MILLER, NEW YORK CIVIL PRACTICE ¶ 5004.O1a, at 50-74 (2002), and if they do, the contract rate, rather than the C.P.L.R. rate, will apply.Nuera Communications, Inc. v. Telron Communications USA, Inc., No. 00 Civ. 9167 (RMB) (FM), 2002 WL 31778796, at *3 (S.D.N.Y. Nov. 15, 2002 ) (Report and Recommendation of Maas, M.J.); Citibank, N.A. v. Liebowitz, 487 N.Y.S.2d 368 (N.Y.App.Div. 1985); Schwall v. Bergstol, 468 N.Y.S.2d 47, 47 (N.Y.App.Div. 1983); Secular v. Royal Athletic Surfacing Co., 411 N.Y.S.2d 615, 616 (N.Y. A.D. 1978).
Under Natelco Agreement # 2, Best and Natelco agreed that "[i]f any invoice is not paid when due, . . . interest shall accrue on the invoiced amount a monthly rate of one and one half (1.5%) percent . . . beginning on the date payment was due . . ." (Payphone Services Agreement, dated Dec. 8, 2000, at ¶ 4(c). While Best has cited foreclosure and promissory note cases in which the courts used the contract rate to compute pre-judgment interest, this doesn't mean, as Best suggests, that the contract rate only applies in such cases. Rather, the case law reflects that the contract rate is used to compute pre-judgment interest in all types of contract actions. See, e.g., Nuera Communications, Inc. v. Telron Communications USA, Inc., 2002 WL 31778796 (action to recover balance due for sale of telecommunications equipment); Morse/Diesel v. Trinity Indus., Inc., 875 F. Supp. 165 (S.D.N.Y. 1994) (action by general contractor against subcontractor and performance bond surety) Archer Mgmt. Servs., Inc. v. Pennie Edmonds, 731 N.Y.S.2d 177 (N.Y. A.D. 2001) (action by in-house mail room service against law firm for unpaid invoices); Morningside Fuel Corp. v. Lanius, 664 N.Y.S.2d 30 (N.Y.App.Div. 1997) (action to recover balance due on fuel oil deliveries and services); Secular v. Royal Athletic Surfacing Co., 411 N.Y.S.2d 615 (N.Y.App.Div. 1978) (action for goods sold and delivered); Frank v. Superior Indus. Sys., Inc., No. 2001-954 5 C, 2002 WL 31962640 (N.Y.App. T. Sept. 25, 2002) (same); Williamson Co. v. Colby Engraving Rubber Plate Corp., 413 N.Y.S.2d 580 (N.Y.Sup.Ct. 1979) (same).
A copy of the Payphone Services Agreement is attached as exhibit C to the Declaration in Support of Objection of Manhattan Telecommunications Corp., dated Sept. 9, 2002 (ECF Doc. # 122).
In addition, Best is incorrect when it argues that the statutory rate superseded the contract rate after Best defaulted or the Natelco Agreement # 2 terminated. The only reasonable reading of that agreement is that Best had to pay interest at 18% per annum on unpaid invoices until those unpaid invoices were paid. In such circumstances, "the contract rate governs until payment of the principal, or until the contract is merged in a judgment." O'Brien v. Young, 94 N.Y. 428, 430 (1884).
4. Discovery
Best also contends that it needed discovery to meet MetTel's motion, made an adequate request for discovery, and I ignored or denied that request. After Best served its claim objection and MetTel replied, I advised the parties that I planned to treat MetTel's response as a motion for partial summary judgment. Decision at *4. I fixed a schedule for supplemental submissions in consultation with the parties, including a deadline for the submission of opposition papers by Best. Best never stated that it needed discovery despite the fact that it had already received and presumably reviewed MetTel's papers.
As an aside, Best continues to question the application of the summary judgment procedures to this contested matter. (See Best Supplemental Memorandum 6-7.) FED R. BANKR. P. 9014 expressly makes FED. R. BANKR. P. 7056 — and hence, FED. R. CIV. P. 56 — applicable to contested matters.
If the non-moving party needs discovery to respond, he may request it under FED. R. CIV. P. 56(f). His request must show, by affidavit:
Rule 56(1) states:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
1) the nature of the uncompleted discovery, i.e., what facts are sought and how they are to be obtained; and
2) how those facts are reasonably expected to create a genuine issue of material fact; and
3) what efforts the affiant has made to obtain those facts; and
4) why those efforts were unsuccessful.
Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 926 (2d Cir. 1985); accord Hudson River Sloop Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414, 422 (2d Cir. 1989); Bragg v. Emmis Broad, Corp., No. 95 Civ. 10310 (DAB), 1998 WL 730339, at *5 (S.D.N.Y. Oct. 19, 1998).
Best concedes it had to satisfy this procedure. (See Best Memorandum 11.) Initially, it contended it did, but failed to identify the location of the complying request. (See id. ("The Debtor . . . did submit such an affidavit and indicated that it was entitled to the information. . . .").) After MetTel challenged Best's assertion, Best directed me to the "preliminary Reply to the Aronow declaration" as satisfying the requirements of Rule 56(f). (Debtor's Reply Memorandum of Law on Reconsideration or Order Disposing of Motion for Summary Judgment on Debtor's Objection to Proof of Claim by MetTel, dated Feb. 6, 2003, at 6.) I assume this referred to thePreliminary Reply to Declaration of David Aronow Opposing Debtor's Objection to Proofs of Claim Filed by Manhattan Telecommunications Corporation, dated Sept. 11, 2002 ("Preliminary Reply") (ECF Doc. # 158), a nineteen-page submission whose final paragraph (the forty-seventh) summarized Best's opposition:
Although additional time is needed to prepare a complete reply to the tardy opposition to the Debtor's Objection to MetTel's Proofs of Claim, the Court can, even without granting additional time, reject the Creditor's opposition, either for untimeliness or inadequacy, and reduce the MetTel claim according to the request in the Debtor's original Objection, subject to any revision upon receipt of a determination of the pending appeal before the Appellate Division.
Thus, the "Preliminary Reply" argued that I should deny MetTel's motion and sustain Best's claim objection based on the existing record. It did not ask for discovery or indicate that discovery was necessary. In addition, Best's opposition memorandum did not raise the need for discovery. As a result, Best failed to show that I overlooked its compliance with FED. R. CIV. P. 56(f), and accordingly, it is not entitled to reconsideration.
5. The Telephone Tariff
According to Best, every Competitive Local Exchange Carrier ("CLEC") such as Natelco and MetTel must file a tariff setting forth its rates. The tariff allegedly provided — Best has still not provided a copy — that a bill becomes final and binding if the customer fails to object to the bill within three months, unless the CLEC has records indicating that the bill was incorrect. (Reconsideration Motion ¶ 23.) In addition, the CLEC must keep its customer records for six years. (Id. ¶ 24.) Best protests that I should not have granted summary judgment in favor of MetTel on an "account stated" theory because I did not consider the tariff, (id. ¶ 25), and because Best asserted that MetTel had records evidencing its objections to the bills. (Best Memorandum 6-7.)
Although Best maintained that it had objected to Natelco's bills, it was unable to provide either evidence of a written objection or written evidence confirming an oral objection. Lacking written proof of its own objections, Best's opposition to the summary judgment motion nevertheless speculated that MetTel had such proof in light of the tariff's document retention requirements. (Preliminary Reply ¶ 5.) David Aronow of MetTel responded that "MetTel has no record that Debtor ever objected to any of its bills." (Reply Declaration [of David Aronow] in Support of Motion for Summary Judgment, dated Oct. 18, 2002, at ¶ 6) (ECF Doc. # 167.) This left Chaite's alleged oral objections which I deemed insufficient because Chaite failed to "relate when and to whom the oral protests were made, and specify the substance of the conversations."Decision at *7, 9.
Best's reconsideration motion makes this argument more explicitly: in light of the tariff's document retention requirements, MetTel must have records of Best's complaints, these records would defeat the account stated theory, and consequently, summary judgment was, therefore, inappropriate. But nothing has changed since the motion for summary judgment. Best should but doesn't have any records of its own complaints, Chaite cannot state of his own personal knowledge that MetTel has them, and Aronow has denied the MetTel has them. Thus, Best failed to raise an issue of fact regarding the existence of records of complaint, there still isn't an issue of fact, and there is no basis to reconsider the prior conclusion that Best failed to raise a triable issue to defeat an "account stated" claim.
Based upon the foregoing, Best's motion for reconsideration is denied. Settle order on notice.