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noting that on a motion for reconsideration, "a party may not advance new facts, issues or arguments not previously presented to the Court"
Summary of this case from Turner Construction Co. v. Kemper Insurance Co.Opinion
99 Civ. 6098 (RWS)
March 22, 2001
Di RIENZO WALLERSTEIN, Attorney for Plaintiff, Fanwood, NJ, By: JOSEPH Di RIENZO, ESQ. of Counsel.
JACKSON, LEWIS, SCHNITZLER KRUPMAN Attorney for Defendant Access Temporaries, Inc., New York, NY, By: PENNY ANN LIEBERMAN, ESQ. Of Counsel.
JACKSON, LEWIS, SCHNITZLER KRUPMAN, Attorney for Defendant Access Temporaries, Inc., Courthouse Plaza Morrietown, NJ, By: TERRI L. FREEMAN, ESQ. Of Counsel.
BERGER STERN WEBB, Attorney for Defendant Karen P. Druziako New York, NY, By: STEVEN A. BERGER, ESQ., JOHN R. CAHILL, ESQ., KENNETH J. APPLEBAUM, ESQ., Of Counsel
OPINION
0n January 10, 2001, this Court granted judgment on the pleadings for the defendants, ordered DelleFave to pay Rule 11 attorneys' fees for defendant Karen Druzakio ("Druzakio"), and denied DelleFave's motions to amend and to compel discovery. See Dellefave v. Access Temporaries, Inc., 99 Civ. 6098 (RWS), 2001 WL 25745 (S.D.N.Y. Jan. 10, 2001) ("the January 10, 2001 opinion") Plaintiff Matthew B. DelleFave ("DelleFave") has moved for reconsideration or reargument pursuant to Local Civil Rule 6.3, to amend pursuant to Fed.R.Civ.P. 52(b) and 59(e), or for relief pursuant to Fed.R.Civ.P. 60(b)(1) and (6). Druzakio and the remaining defendants have opposed the motion in separate briefs. For the reasons set forth below, the motions are denied.
Discussion I. The Applicable Legal Standards for Reargument. Reconsideration. Amendment, or Relief
Local Rule 6.3 provides in pertinent part: "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." Thus, to be entitled to reargument and reconsideration, the movant must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion. See Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993); East Coast Novelty Co. v. City of New York, 141 F.R.D. 245, 245 (S.D.N Y 1992).
Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court. In deciding a reconsideration and reargument motion, the Court must not allow a party to use the motion as a substitute for appealing from a final judgment. See Morser v. AT T Info. Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989); Korwek v. Hunt, 649 F. Supp. 1547, 1548 (S.D.N.Y. 1986), aff'd, 827 F.2d 874 (2d Cir. 1987). Therefore, a party may not "advance new facts, issues or arguments not previously presented to the Court." Morse/Diesel, Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991). The decision to grant or deny the motion is within the sound discretion of the district court. See Schaffer v. Soros, No. 92 Civ. 1233, 1994 WL 592891, at *1 (S.D.N.Y. Oct. 31, 1994).
Upon receiving such a motion, a court may do any of the following. First, the motion may be denied, thereby leaving the original decision unaltered. See Lehmuller v. Incorporated Village of Sag Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997). Alternatively, "the Court can grant a motion to reargue for the limited purposes of considering the effect of an overlooked matter," and after doing so may affirm and/or clarify the original decision. Lehmuller, 982 F. Supp. at 135-36; see In re First American Corp., No. M8 — 85, 1998 WL 148421, at *3 (S.D.N.Y. Mar. 27, 1998), aff'd, 154 F.3d 16 (2d Cir. 1998); Violette v. Armonk Assocs., L.P., 823 F. Supp. 224, 226-27, 231 (S.D.N.Y. 1993);Brignoli v. Balch Hardy Scheinman, Inc., 735 F. Supp. 100, 102-03 (S.D.N.Y. 1990). Finally, having granted a motion to reconsider, the Court may vacate the original decision. See Morin v. Trupin, 823 F. Supp. 201, 203 (S.D.N.Y. 1993); Travelers Ins. Co. v. Buffalo Reins, Co., 739 F. Supp. 209, 211-13 (S.D.N.Y. 1990).
Motions for reargument in accordance with Rule 59(e) are governed by the same standards as those governing motions under Local Rule 6.3. See Candelaria v. Coughlin, 155 F.R.D. 486, 491 (S.D.N.Y. 1994); Morser, 715 F. Supp. at 517.
Rule 60(b)(1) provides in relevant part that "upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable neglect." Rule 60(b)(6) provides relief "for any other reason justifying [that] relief." However, the Second Circuit has held that "Rule 60(b)(1) and 60(b)(6) are mutually exclusive, so that any conduct which generally falls under the former cannot stand as a ground for relief under the latter." United States v. Cirami, 535 F.2d 736, 740 (2d Cir. 1976) (quoting United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir.)). Since Dellefave seeks relief on the basis of alleged mistakes of law, which is a ground for relief under Rule 60(b)(1), Rule 60(b)(6) is inapplicable.
Our Court of Appeals has instructed that Rule 60(b) is "extraordinary judicial relief" and can be granted "only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); accord United States v. Bank of N.Y., 14 F.3d 756, 759 (2d Cir. 1994). Like a motion under Rule 59(e), a Rule 60(b) motion is not a substitute for an appeal. See Browder v. Director, Dep't of Corrections, 434 U.S. 257, 263 n. 7, 98 S. Ct. 556, 54 L.Ed.2d 521 (1978); Hood v. Hood, 59 F.3d 40, 42 (6th Cir. 1995). "Mere dissatisfaction in hindsight with choices deliberately made . . . is not grounds for finding the mistake, inadvertence, surprise or excusable neglect necessary to justify Rule 60 (b)(1) relief." Nemaizer, 793 F.2d at 62.
II. Dellefave Has Failed to Meet the Legal Standards Required for the Court to Reconsider, Amend, or Relieve Him from the Effect of the January 10, 2001 Opinion A. Judgment on the Pleadings and Discovery
Dellefave seeks relief from that portion of the January 10, 2001 opinion which granted Druzakio's Rule 12(c) motion for judgment on the pleadings on the grounds that (1) the Court overlooked facts that he presented; and (2) the Court erred in failing to convert the motion to a Rule 56 summary judgment motion in consideration of those additional materials.
First, as set forth above, a movant must show that the Court overlooked facts that had been presented in the underlying motion in order to warrant relief. See Dietrich v. Bauer, 76 F. Supp.2d 312, 327 (S.D.N.Y. 1999). However, the additional materials that Dellefave suggests were overlooked — the proposed amended complaint and the DiRienzo Certification — were filed on October 17, 2000, and November 7, 2000, respectively, after the 12(c) motion was fully submitted upon oral argument on October 11, 2000. Therefore, these materials were not properly before the Court in deciding the Rule 12(c) motion, and their existence is not cause to reconsider or amend the January 10, 2001 opinion.
Even if these materials had been submitted in opposition to the Rule 12 (c) motion and that motion converted to one for summary judgment, they would have been disregarded as insufficient under the relevant evidentiary standards. The proposed amended complaint was unsigned, and therefore subject to being stricken pursuant to Rule 11. See Fed.R.Civ.P. 11 ("If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant . . ."); Wrenn v. New York City Health and Hospitals Corp., 104 F.R.D. 553, 556 (S.D.N.Y. 1985) (stating that failure to sign a proposed amended complaint "may constitute grounds for striking the pleading."). Moreover, rather than submitting the certified transcription of the deposition, Dellefave's counsel offered proof of that testimony in the form of a "certification," a summary based upon his notes. (Reconsideration Mtn. Ex. B ¶ 2.) Affidavits submitted pursuant to a summary judgment motion "shall be on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated, therein." Fed.R.Civ.P. 56(e). DiRienzo's certification recounted his notes of a witness's testimony about her recollection of others' statements, and as such constituted inadmissible double or triple hearsay. See Fed.R.Evid. 801(c).
Second, Dellefave never argued that the Rule 12(c) motion should be converted to a summary judgment motion until the instant filing. As such, he may not argue for reconsideration, amendment, or relief on that basis here. See Dietrich, 76 F. Supp.2d at 327 ("a party may not advance new facts, issues or arguments not previously presented to the court.");U.S. Titan v. Guangzhou Zhen Hua Shipping, 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (same).
In any event, the fact that these materials were submitted pursuant to a motion to amend does not dictate that they should have been considered and treated as evidence in opposition to a motion for summary judgment. Whether to consider additional materials and thereby convert a Rule 12 motion into a summary judgment motion is within the sound discretion of the Court. See Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) ("If a judge looks to additional materials, the motion should be converted into a motion for summary judgment"); Diezcabeza v. Lynch, 75 F. Supp.2d 250, 256 (S.D.N.Y. 1999) ("The Court may, at its discretion, consider the affidavits attached to the motion and thereby treat the instant motion as one for summary judgment"); Pisello v. Town of Brookhaven, 933 F. Supp. 202 (E.D.N.Y. 1996) ("In its discretion and upon notice to the parties, the motion for judgment on the pleadings is treated for one for summary judgment."). Dellefave has introduced no controlling authority for the proposition that the Court had an obligation to consider these additional materials in the motion to dismiss under the circumstances.
The fact that the proposed amended complaint was considered pursuant to the motion to amend the complaint does not dictate that the Court was required to consider it as a part of the motion to dismiss. First, as set forth above, the two motions were submitted separately, and addressed in the same opinion for reasons of judicial economy. Moreover, the standard for considering materials submitted in a motion to dismiss differs from that in a motion to amend. In a motion to amend, it is appropriate to consider the proposed amended complaint in order to determine exactly which changes were sought. See Smith v. Planas, 151 F.R.D. 547, 550 (S.D.N.Y. 1993). On the other hand, a court must consider only the pleadings, attached exhibits, and materials incorporated by reference in addressing a motion for judgment on the pleadings. Consideration of additional materials is discretionary. See Royal Ins. Co. of America v. Sportswear Group, LLC, 85 F. Supp.2d 275, 278 (S.D.N.Y. 2000).
As the Court acted within its discretion in declining to treat the motion to dismiss as a summary judgment motion, the fact that discovery had not yet finished is irrelevant to the disposition. See, e.g., Excalibur Systems, Inc. v. Aerotech World Trade, Ltd, No. 98-CV-1931, (JG), 1999 WL 1281496, *1 n. 1 (finding that Rule 12(c) motion brought more than five months before the close of discovery was timely and appropriate).
No matters of fact or law having been overlooked, and the plaintiff having advanced no claim that exceptional circumstances exist justifying relief from the operation of the opinion, the motion to reconsider or amend the Rule 12(c) dismissal of the complaint against all defendants is hereby denied.
In his reply brief, DelleFave alleges that "the court may have been influenced by ex parte communications" with the defendants in the form of a letter submitted between June 19, 2000 and June 26, 2000 that are not in plaintiff counsel's files. (Pltf. Reply Br. at 1, 4-5.) This assertion is groundless. First, the letter at issue was received and filed on June 21, 2000, and not considered at any time after June 23, 2000, the date it was treated as a motion and denied. Second, the letter was drafted by Druzakio's attorneys at Berger Stern Webb, who asked the court to reconsider a May 23, 2000 granting Druzakio's former counsel's motion to withdraw. It addressed only Druzakio's representation and raised no substantive or procedural issue pertaining to DelleFave's claims. Finally, the letter was docketed as Document #16 in the public court clerk's file for this case on June 27, 2000, a fact that DelleFave could have discovered with minimal effort.
In light of this result, and no additional matters of fact or law having been overlooked, the motion to reconsider the decision to deny the discovery motion is also denied.
B. Motion to Amend
Dellefave next seeks reconsideration, amendment or relief from that portion of the January 10, 2001 opinion which denied leave to amend the complaint, on the grounds that (1) the motion to amend the complaint to replead causes of action against defendants other than Druzakio could not have been filed in anticipation of an adverse ruling because only Druzakio had filed a Rule 12 motion; and (2) the alternative jurisdictional grounds for the Court's refusal to grant leave to amend the complaint contravenes Supreme Court precedent directing district courts to exercise supplemental jurisdiction. These contentions will be addressed in turn.
As set forth in the opinion, leave to amend was denied due to undue delay, dilatory motive, futility, and the fact that the amended complaint, if allowed, would be the subject of a successful motion to dismiss on jurisdictional grounds. See 2001 WL 25745, *9 Therefore, even if Dellefave did not have a dilatory motive in seeking to amend the complaint as to non-moving defendants, several adequate alternative grounds exist — including futility — on which to deny the motion to replead as to them.
Second, the Supreme Court precedent Dellefave cites on the alternative jurisdictional ground was not presented in the original motion, and therefore is not a basis on which to reconsider the opinion under the relevant standards cited above. In any case, these cases do not establish that a district court must either remand or exercise jurisdiction over a proposed amended complaint — that raises no grounds for exercising federal jurisdiction. Instead, the cases cited address the exercise of federal jurisdiction in cases where the federal claim providing the basis for removal jurisdiction has been dismissed in nondiversity cases where no amended complaint has been proposed. Under those circumstances, district courts have discretion whether to exercise jurisdiction over the remaining state law claims. See Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 390-91, 118 S.Ct. 2047, 2053, 141 L.Ed. 364 (1998) (noting that district courts may exercise supplemental jurisdiction over state law claims after federal claims providing removal jurisdiction are dismissed); Carnegie Mellon University v. Cohill, 484 U.S. 343, 357 n. 7, 108 S.Ct. 614, 622 n. 7, 98 L.Ed.2d 720 (1988) (recognizing nonmandatory rule that where all federal claims are dismissed, district court should dismiss all state claims as well) (citing Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) ("pendent iurisdiction is a doctrine of discretion, not of plaintiff's right") (emphasis added); 28 U.S.C. § 1367 (c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . (3) the district court has dismissed all claims over which it has original jurisdiction").
Here, in contrast, the filing of a new complaint supersedes the original, and renders it of no legal effect, " Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, the existence of a basis on which to exercise pendent jurisdiction under the original complaint provides no justification for the court to exercise jurisdiction over an amended complaint that sets forth no basis for federal jurisdiction. It would be futile to allow a plaintiff to file an amended complaint that would be the subject of a successful motion to dismiss on jurisdictional grounds. See Chan v. Reno, 916 F. Supp. 1289, 1308 (S.D.N.Y. 1996). Therefore, the procedural posture of the case, the fact that the proposed amended complaint failed to state causes of action or assert a basis for the exercise of federal jurisdiction, and considerations of judicial economy all weighed in favor of dismissing the action rather than remanding. See, e.g., Moore v. State of Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993) (affirming district court's refusal to grant leave to amend and dismissal of the case where proposed amended complaint would be subject to successful motions to dismiss for failure to state a cause of action and lack of federal jurisdiction).
The motion to reconsider the ruling on the proposed amended complaint is therefore denied.
C. Rule 11
Dellefave seeks reconsideration of the imposition of attorneys' fees pursuant to Rule 11 because (1) Rule 11 does not apply to a complaint filed in state court because the complaint is not signed with the certification required to impose sanctions; and (2) the proposed amended complaint and documents attached and incorporated by reference thereto stated claims for hostile work environment discrimination and tortious interference with contract claims.
First, as above, Dellefave never before raised the first ground for reconsideration of the sanctions award. Therefore, it would not be properly considered by the Court at this time under the relevant legal standards set forth above.
However, a brief discussion of this argument is warranted to highlight a change in the law. Dellefave cites Mareno v. Jet Aviation of America, Inc., 970 F.2d 1126, 1128 (2d Cir. 1992), cert. denied, 507 U.S. 966, 113 S.Ct. 1401 (1992), and prior Second Circuit cases for the proposition that complaints filed in state court may not be the subject of Rule 11 sanctions. However, Rule 11 was amended in 1993 to allow a district court to impose sanctions not only for a party's "signing" a paper filed with the district court, but for "presenting to the court (whether by signing, filing, submitting, or later advocating)" a document that is otherwise sanctionable. Fed.R.Civ.P. 11(b) (December 1, 1993 amendment). The Advisory Committee Notes explain that "if after a notice of removal is filed, a party urges in federal court the allegations of a pleading filed in state court (whether as claims, defenses, or in disputes regarding removal or remand), it would be viewed as `presenting' — and hence certifying to the district court under Rule 11 — those allegations." See Buster v. Greisen, 104 F.3d 1186, 1190 n. 4 (9th Cir. 1997) (affirming imposition of sanctions by federal removal court for pursuing allegations in complaint first filed in state court), cert. denied, 522 U.S. 981, 118 S.Ct. 441, 139 L.Ed.2d 378 (1997).
By advocating the allegations in the original complaint in his written and oral opposition to Druzakio's dismissal and sanctions motions (Pltf. Rule 11 Br. at 2), and in support of his motion to amend (Pltf. Amd. Br. at 3, DiRienzo Cert. at 2), Dellefave has "presented" the claims of the original complaint to this Court. See, e.g., Loving v. Pirelli Cable Corp., 11 F. Supp.2d 480, 493 (D. Del. 1998) (granting Rule 11 sanctions on the basis of complaint originally filed in state court that was defended at oral argument in federal court). Therefore, he may properly be sanctioned for presenting frivolous claims pursuant to Rule 11.
The second argument Dellefave advances in support of the motion to reconsider the award of sanctions does not suggest that this Court overlooked a matter of fact or law, but rather that the Court misapplied the law. As such, the motion in effect seeks to appeal the prior decision rather than to ask the Court to reconsider it under the proper standard.
No appropriate grounds having been advanced for reconsideration of the sanction award, the imposition of attorneys' fees will stand.
III. Druzakio's Motion for Fees and Costs
Within the discretion of the Court, Druzakio's motion for attorneys' fees and costs associated with opposing the instant motion is denied.
Conclusion
For the foregoing reasons, the motions are denied in full.
It is so ordered.