Opinion
99 Civ. 12405 (RWS), 00 Civ. 5098 (RWS)
September 29, 2003
KINGSLEY KINGSLEY, Hicksville, NY, for American National Fire Insurance Co.
HAIGHT GARDNER HOLLAND KNIGHT, New York, NY, for Mirasco, Inc.
OPINION
American National Fire Insurance Company ("American National") and Great American Insurance Co. ("Great American") (collectively the "Insurers"), the plaintiffs in 99 Civ. 12405 (the "New York Action") and defendants in 00 Civ. 5098 (the "Georgia Action"), have moved for reconsideration of the decision in American Nat'l Fire Ins. Co. v. Mirasco, Inc., 265 F. Supp.2d 240 (S.D.N.Y. 2003) ("Mirasco II") to preclude the testimony of Dr. James R. Mintert, and for an amendment to the decision stating that this Court did not dismiss the Insurers' sue and labor defense.
For the reasons set forth below, the motion to reconsider the preclusion of Mintert's testimony is denied, and the motion to amend the decision on the sue and labor clause is granted.
Prior Proceedings
The parties and prior proceedings have been described in greater detail in American Nat'l Fire Ins. Co. v. Mirasco. Inc., 249 F. Supp.2d 303 (S.D.N.Y. 2003) ("Mirasco I"), familiarity with which is presumed. In that opinion, it was concluded that, inter alia: (1) the M/V Spero cargo was rejected by the Egyptian government, and (2) the IBP cargo was rejected due to an "embargo," and thus under an applicable exclusion Mirasco was entitled only to return freight for that percentage of the cargo. It was concluded that the only issue left for trial was what percentage, if any, of the Monfort and Excel cargo was rejected for a covered reason.
On May 26, 2003, the motions for reconsideration from both parties were denied in Mirasco II. In that decision, this Court also ruled on in limine motions from both parties to preclude the testimony of various witnesses, including Mintert.
The Insurers moved for reconsideration of Mirasco II on June 11, 2003. After submission of briefs, the motion was deemed fully submitted on July 16, 2003.
Discussion Standard of Review
"To succeed on a motion for reargument, the moving party must demonstrate that the court overlooked the controlling decisions or factual matters that were placed before the court in the underlying motion." Lopez v. Comm'r of Soc. Sec., 2002 WL 465298, at *1 (S.D.N.Y. March 27, 2002) (quotations and citations omitted); see also Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995) (motion for reargument "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court").
Rule 6.3 is intended to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures. Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citation omitted). The parties may not present new facts or theories at this stage. Ralph Oldsmobile Inc. v. General Motors Corp., 2001 WL 55729, at *2 (S.D.N.Y. Jan. 23, 2001) (striking affidavit that was filed in support of motion to reconsider without court's permission); Primavera Familienstifung v. Askin, 137 F. Supp.2d 438, 442 (S.D.N.Y. 2001) (party may not "advance new facts, issues or arguments not previously presented to the Court") (quoting Morse/Diesel Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991).
Rule 6.3 must be narrowly construed and strictly applied so as to avoid duplicative rulings on previously considered issues, and may not be employed as a substitute for appealing a final judgment. Lopez, 2002 WL 465298, at *1; Shamis v. Ambassador Factors, 187 F.R.D. 148, 151 (S.D.N.Y. 1999). The decision to grant or deny the motion rests in the discretion of the district court. ATT Corp. v. Community Network Servs. Inc., 2000 WL 1174992, at *1 (S.D.N.Y. Aug. 18, 2000). Mintert's Testimony Is Irrelevant to The Remaining Issue
The Insurers argue that the testimony of Mintert, an agricultural economist who "will testify as to the fluctuations of beef liver prices in the United States during 1998-99," Mirasco II, 265 F. Supp.2d at 253, is relevant to the remaining issue in the litigation, which is "what percentage of the Monfort and Excel cargo was rejected for a covered reason." Id. at 250. The Insurers attempt to connect these apparently unrelated facts as follows: if the price of beef liver
at which the returned cargo was sold closely coincided with the prevailing sound market value, this is strong evidence that such cargo was actually sound, that it had not health or sanitary defects as set forth in the disputed rejection notices, and thus that the rejection notices were bogus.
Insurers Mem. at 2-3.
The assumption on which the Insurers' argument rests is that it can be concluded that the rejection notices are bogus from the fact that the cargo was sound. However, this Court has already found "that the M/V Spero cargo was, for the most part, sold as wholesome and sound upon its return to the United States." Mirasco I 249 F. Supp.2d at 326. But that information
in fact supports Mirasco's argument that the rejection was arbitrary and is therefore insufficient to show that the cargo was not rejected on health and sanitary grounds; just because the Egyptian authorities claimed the cargo was unhealthful does not mean that it actually was. This is particularly salient given the Survey Report regarding the Egyptian authorities' tendency to reject all liver shipments in any way possible.Id. In other words, the rejection notices may contain bogus rationales without being bogus themselves.
The price of beef liver in the United States is therefore irrelevant to the remaining issue of the percentage of Excel and Monfort cargo that was rejected for an excluded reason. The motion to reconsider the preclusion of Mintert's testimony is denied.
The Insurers' Sue and Labor Clause Defense Was Not Rejected By This Court
The Insurers request an amendment of the Mirasco II decision "for purposes of clarification." Insurers Mem. at 3. In Mirasco II, this Court summarized one of the holdings of Mirasco I by stating that "the Insurers' argument . . . that Mirasco did not comply with the sue and labor clause . . . [has] been rejected." Mirasco II, 265 F. Supp.2d at 254. The Insurers argue that the quoted sentence misstates the holding inMirasco I. As evidence of their interpretation, the Insurers cite the holding from Mirasco I that "if Mirasco's losses occurred as a result of a breach of the sue and labor clause, recovery is not available." 249 F. Supp.2d at 327.
The holding on the sue and labor clause in the Mirasco I was made in the context of the summary judgment motion brought by the Insurers. In denying the motion on that issue, therefore, this Court held only that the Insurers could not establish their sue and labor clause affirmative defense as a matter of law. While the discussion in Mirasco I of the evidence put forward by the Insurers on the sue and labor clause showed "no factual basis" for the defense, id., the issue was not fully briefed because Mirasco did not move to preclude the defense as a matter of law. Indeed, the sue and labor clause defense was only raised by the Insurers "[f]or the first time in their reply papers . . ."Id. at 326. Accordingly, the Mirasco II decision is hereby amended in order to remove any language indicating that the Insurers' sue and labor clause affirmative defense had been rejected inMirasco I. Conclusion
The language of Mirasco I may have been confusing in that it states that "the Insurers have not established a genuine dispute" with regard to whether the sue and labor clause defense could be maintained, when the Insurers were the movants for the summary judgment motion under consideration. Id.
For the foregoing reasons, the motion for reconsideration of the decision to preclude Mintert's testimony is denied, and the motion to amend the decision is granted.
It is so ordered.