Opinion
04 Civ. 7395 (RWS).
August 14, 2007
Attorneys for Plaintiff, BECKER MEISEL LLC, Eisenhower Plaza II, Livingston, NJ, By: JOSEPH G. HARRAKA, JR., ESQ.
Attorneys for Defendants, LAW OFFICES OF ALLAN H. CARLIN, New York, NY, By: ALLAN H. CARLIN, ESQ.
MEMORANDUM OPINION
Defendants Empire Programs, Inc. ("Empire") and Robert A. Martin ("Martin") (collectively, the "Defendants") have moved under Rule 59(e), Fed.R.Civ.P., and Local Civil Rule 6.3 for reconsideration of the denial of Defendants' motion for summary judgment dismissing Counts I, III, IV, and V of the Amended Complaint. See Sea Carriers Corp. v. Empire Programs, Inc., 488 F. Supp. 2d 375 (S.D.N.Y. 2007) (the "May 2007 Opinion"). For the reasons set forth below, the motion is denied.
Prior Proceedings
Prior proceedings in this matter were outlined in the May 2007 Opinion. See id. at 377-78.
Defendants filed a motion for summary judgment on November 17, 2006, which was marked fully submitted on January 25, 2007. The May 2007 Opinion granted summary judgment as to the cause of action for breach of the implied covenant of good faith and fair dealing as redundant of the cause of action for breach of contract. See id. at 379-80. It was determined, however, that summary judgment was inappropriate as to the cause of action for declaratory relief, on the grounds that "material issues of fact remain as to four of the five requisite elements of a joint venture." Id. at 379. Finally, the May 2007 Opinion indicated that Sea Carriers could be barred from bringing its other claims for failure to register as an investment adviser under the Connecticut Uniform Securities Act. However, based on the material issues of fact remaining with respect to the existence of a joint venture between the parties, it was determined that "it would be inappropriate at this time to strictly apply this non-suit provision of the Connecticut statute." Id. at 380.
The instant motion for reconsideration was filed by the Defendants on June 4, 2007, and considered fully submitted on June 27, 2007.
Discussion
Motions for reconsideration under Local Civil Rule 6.3 and to alter or amend judgments under Rule 59(e), Fed.R.Civ.P., are evaluated under the same standard. See Word v. Croce, No. 01 Civ. 9614 (LTS), 2004 WL 434038, at *2 (S.D.N.Y. Mar. 9, 2004); Williams v. New York City Dep't of Corr., 219 F.R.D. 78, 83 (S.D.N.Y. 2003); Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999). To receive reconsideration, "`the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision.'" Word, 2004 WL 434038, at *2 (quoting Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003)); see also Williams, 219 F.R.D. at 83.
"A notice of motion for reconsideration or re-argument of a court order determining a motion shall be served within ten (10) days after the entry of the court's determination of the original motion, or in the case of a court order resulting in a judgment, within ten (10) days after the entry of judgment. There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Local Civ. R. 6.3.
"Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Rule 59(e), Fed.R.Civ.P.
Rule 59(e) should be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court," Williams, 219 F.R.D. at 83, and "to prevent the rule from being used as a substitute for appealing a final judgment." USA Certified Merchants. LLC v. Koebel, 273 F. Supp. 2d 501, 503 (S.D.N.Y. 2003). Furthermore, "[r]econsideration of a court's previous order is an `extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'"Montanile v. Nat'l Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002) (quoting In re Health Mgmt. Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)).
In support of the motion, Defendants again rely predominantly on the Second Circuit's decision in Abrahamson v. Fleschner, 568 F.2d 862 (2d Cir. 1977), which was considered and applied in the May 2007 Opinion. See 488 F. Supp. 2d at 381. Therefore, Defendants have failed to point to any controlling law or factual matter put before the Court on the underlying summary judgment motion that was overlooked in deciding that motion. Based on this omission, Defendants have procedurally failed to meet their burden.
It is noted that Abrahamson involved a limited partnership, in which the general partners managed the partnership investments and "[t]he limited partners did not participate in managing the partnership's investments." 568 F.2d at 865-66. In the instant case, material issues of fact remain as to the nature of the relationship between the parties, including the degree, if any, of joint control over the venture, if any. See 488 F. Supp. 2d at 379; Sea Carriers v. Empire Programs, Inc., No. 04 Civ. 7395, 2006 WL 1148684, at *2 (S.D.N.Y. Apr. 28, 2006).
Conclusion
For the foregoing reasons, Defendants' motion for reconsideration under Local Civil Rule 6.3 and Rule 59(e) of the Federal Rules of Civil Procedure is denied. A joint pretrial order and in limine motions having already been submitted to the Court, the trial of this matter will commence on October 15, 2007.
It is so ordered.