Opinion
03 Civ. 177 (JFK).
August 31, 2006
MEMORANDUM OPINION ORDER
Defendant Paul Johnson ("Johnson") moves for reconsideration of the Court's Opinion and Order dated July 21, 2006, and the Final Judgment entered on July 26, 2006. In the alternative, Johnson moves for a stay of the judgment pending appeal. Plaintiff, the Securities and Exchange Commission ("SEC") objects to reconsideration and the issuance of a stay.
The Court presumes familiarity with the underlying facts of this case. For a detailed factual history, refer to SEC v. Johnson, No. 03 Civ. 177, 2006 WL 2053379 (S.D.N.Y. July 24, 2006).
On March 24, 2005, the Court denied Johnson's motion for summary judgment. SEC v. Paul Johnson, No. 03 Civ. 177, 2005 WL 696891 (S.D.N.Y. March 24, 2005). The case proceeded to trial. On November 11, 2005, a jury found Johnson liable on four counts of securities fraud with regard to three different companies, Corvis, Redback, and Sycamore.
Following trial, on January 31, 2006, the Court denied Johnson's motion to set aside the verdict or, in the alternative, for a new trial. SEC v. Paul Johnson, No. 03 Civ. 177, 2006 WL 238998 (S.D.N.Y. Jan. 31, 2006). On July 21, 2006, the Court issued an Opinion and Order, enjoining Johnson from violating the federal securities laws for a period of five years, directing Johnson to disgorge $1,868,796, together with prejudgment interest thereon, and ordering Johnson to pay $125,000 in civil penalties. SEC v. Johnson, No. 03 Civ. 177, 2006 WL 2053379 (S.D.N.Y. July 24, 2006). The Final Judgment was entered on July 26, 2006.
Motion for Reconsideration
Johnson now moves for reconsideration, pursuant to Local Rule 6.3 and Federal Rule of Civil Procedure 59(e), of portions of the Court's July 21, 2006 Opinion and Order and Final Judgment. Specifically, Johnson seeks reconsideration of the profit Johnson was ordered to disgorge as a result of his misconduct involving two companies, Redback and Sycamore.
Rule 6.3 narrowly restricts the Court's ability to reconsider a decision. It provides, "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." "The controlling decisions or factual matters presented by a litigant for reconsideration must have been put before the court in the underlying motion." Commerce Funding Corp. v. Comprehensive Habilitation Services, Inc., 233 F.R.D. 355, 360 (S.D.N.Y. 2005) (Leisure, J.) (citing Range Road Music, Inc. v. Music Sales Corp., 90 F.Supp.2d 390, 392 (S.D.N.Y. 2000) (Sprizzo, J.)). "The standards governing a motion to alter or amend judgment pursuant to Rule 59(e) and motions for reconsideration or reargument pursuant to Local Rule 6.3 are the same." Learning Links, Inc. v. United Parcel Service of America, Inc., No. 03 Civ. 7902, 2006 WL 2466252, at *1 (S.D.N.Y. August 24, 2006) (quoting Word v. Croce, No. 00 Civ. 6496, 2001 WL 755394, at *2 (S.D.N.Y. July 5, 2001)).
Johnson's motion for reconsideration, for the first time, presents alternate disgorgement calculations. Johnson's counsel "apologize[s] to the Court for not providing these alternate calculations at an earlier stage of the proceedings," and states that their "failure to do so was borne of our belief that Mr. Johnson's arguments that no disgorgement should be awarded for Redback and Sycamore were overwhelming." (Mem. L. 7.) This is not a ground for reconsideration. Johnson's motion for reconsideration is denied.
Motion for a Stay Pending Appeal
Johnson requests, in the alternative, that the execution of the monetary judgment be stayed pending appeal, pursuant to Fed.R.Civ.P. 62(d). Rule 62(d) provides as follows, "When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay . . ." Johnson, however, has not yet filed a notice of appeal, nor has he posted bond. As a result, the Court is currently without power to grant a stay under Rule 62(d). See United States v. One 1962 Ford Galaxie Sedan, 41 F.R.D. 156 (S.D.N.Y. 1966) (Tenney, J.).
Conclusion
Johnson's motion for reconsideration and, in the alternative, for a stay pending appeal is denied in its entirety.
SO ORDERED.