Opinion
No. 03 Civ. 5035 (NRB).
July 6, 2005
Kathy Knight-McConnell, Bronx, NY, Attorney for Plaintiff Pro Se.
Mary Cummins, Los Angeles, CA, Attorney for Defendant Pro Se.
MEMORANDUM AND ORDER
Plaintiff Kathy Knight-McConnell ("plaintiff") has filed the instant motion for reconsideration of this Court's Memorandum and Order dated June 10, 2005, ("Opinion") granting defendant Mary Cummins' ("defendant") motion to dismiss for lack of personal jurisdiction. For the reasons stated below, plaintiff's motion for reconsideration is denied.
DISCUSSION
Familiarity with the Opinion, and thus the factual background of this case, is assumed.
Under Rule 59(e) of the Federal Rules of Civil Procedure, a motion for reconsideration is appropriate when a court overlooks "controlling decisions or factual matters that were put before it on the underlying motion" and which, if examined, might reasonably have led to a different result. Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000). Additionally, a motion for reconsideration may be granted to correct a clear error, to prevent "manifest injustice," or in light of the availability of new evidence. Virgin Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 965 F.2d 1245, 1255 (2d Cir. 1992).
A Rule 59 motion is not, however, a "second bite at the apple." A motion for reconsideration should not be used to present new theories that a party failed to advance in the underlying motion, nor should it be an attempt to relitigate the merits. See Griffin Ins., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999). "Whether to grant or deny a motion for reconsideration or reargument is in the `sound discretion of a district court judge and will not be overturned on appeal absent an abuse of discretion.'" U.S. Titan, Inc. v. Guangzhou Men Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (quotingMcCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)). Absent compelling circumstances, a Rule 59 motion is "generally denied."Wells Fargo Financial, Inc. v. Fernandez, No. 98 Civ. 6635, 2001 WL 345226, at *1 (S.D.N.Y. Apr. 9, 2001).
Plaintiff's submission argues that this Court overlooked certain of defendant's contacts with New York in its Opinion. Specifically, plaintiff notes that this Court's Opinion did not address the fact that defendant had signed up as a member of plaintiff's website, and that defendant had made posts about certain companies in the investor forum hosted on plaintiff's website. By registering on plaintiff's New York website, plaintiff argues that: (1) defendant purposefully availed herself of the privileges of conducting activities within New York, and (2) defendant subjected herself to the forum selection clause contained within the user agreement on plaintiff's website.
The omission of these facts was intentional, as they are irrelevant to the exercise of jurisdiction over defendant in this case. The mere act of registering and posting on plaintiff's website does not rise to the level of purposeful availment by defendant of the laws of New York. In addition, plaintiff's lawsuit did not arise out of defendant's activities on plaintiff's website, and thus cannot sustain jurisdiction under section 302 of New York's long-arm statue. N.Y.C.P.L.R. § 302. Accordingly, defendant's activities on plaintiff's website do not provide a basis for jurisdiction over defendant under New York's long-arm statute.
CONCLUSION
As plaintiff does not point to any legal authority or critical fact that might reasonably lead to a different, plaintiff's motion for reconsideration of the Opinion is denied.IT SO ORDERED.