Opinion
No. 04 Civ. 9321 (SAS).
March 31, 2005
Bryan Belasky, Esq., Robert J. Gordon, Esq., Weitz Luxenberg, P.C., New York, NY, for Plaintiff.
Michael A. Tanenbaum, Esq., Sedgwick, Detert, Moran Arnold, LLP, Newark, NJ, for Defendant.
MEMORANDUM OPINION ORDER
I. BACKGROUND
On February 9, 2005, the plaintiff, Robert Nesbiet ("Nesbiet"), filed a motion to remand this action to state court. In an Opinion dated March 28, 2005, I denied Nesbiet's motion. Today, the Judicial Panel on Multidistrict Litigation ("JPML") is scheduled to consider this case for final transfer to MDL 875, In re Asbestos Products Liability Litigation, in the Eastern District of Pennsylvania. In a letter dated March 30, 2005, Nesbiet requested that this Court seek an adjournment of the JPML's consideration of the transfer of this case in order to allow Nesbiet to file a motion for reconsideration. In the alterantive, Nesbiet requests that this Court certify its March 28 Opinion for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the following reasons, both requests are denied.
See Nesbiet v. General Electric Co., No. 04 Civ. 9321, 2005 WL 697966, at *3 (S.D.N.Y. Mar. 28, 2005). Familiarity with this Opinion is presumed.
II. LEGAL STANDARDS
A. Reconsideration
A motion for reconsideration is governed by Local Rule 6.3 and is appropriate where a court overlooks "controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court." Alternatively, a motion for reconsideration may be granted to "correct a clear error or prevent manifest injustice."
Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000) (quotation marks and citation omitted). See also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) ("The standard for granting . . . a motion [for reconsideration] is strict, and reconsideration 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.").
Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983).
Local Rule 6.3 should be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." A motion for reconsideration "is not a substitute for appeal." Courts have repeatedly been forced to warn counsel that such motions should not be made reflexively, "to reargue those issues already considered when a party does not like the way the original motion was resolved." The purpose of Local Rule 6.3 is 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."
Dellefave v. Access Temps., Inc., No. 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001).
RMED Int'l, Inc. v. Sloan's Supermarkets, Inc., 207 F. Supp. 2d 292, 296 (S.D.N.Y. 2002) (quotation omitted).
Houbigant, Inc. v. ACB Mercantile, 914 F. Supp. 997, 1001 (S.D.N.Y. 1996).
Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988).
B. Certification
It is a "basic tenet of federal law to delay appellate review until a final judgment has been entered." However, a court, in its discretion, may certify an interlocutory order for appeal if the order "[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation."
Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir. 1996).
When considering requests for certification, district courts must carefully evaluate whether each of the above conditions is met. The Second Circuit has urged courts "to exercise great care in making a § 1292(b) certification." "[O]nly `exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Indeed, even where the three legislative criteria of section 1292(b) appear to be met, district courts have "unfettered discretion to deny certification" if other factors counsel against it.
III. DISCUSSION
See, e.g., Wausau Bus. Ins. Co. v. Turner Constr. Co., 151 F. Supp. 2d 488, 491 (S.D.N.Y. 2001) (denying motion for certification where defendant could not demonstrate substantial grounds for difference of opinion as to controlling questions of law).
Westwood Pharm., Inc. v. National Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992).
Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (quoting Coopers Lybrand v. Livesay, 437 U.S. 463, 475 (1978)).
National Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F. Supp. 2d 139, 162-63 (E.D.N.Y. 1999) (assuming the statutory criteria were met but nonetheless denying certification).
A. Reconsideration
In his March 30 letter, Nesbiet points to two factual matters that in his opinion the Court overlooked. First, Nesbiet states that the Opinion makes no mention of Dr. Lawrence Betts's deposition testimony in which he "opined that the Navy would have allowed contractors such as GE to warn about the hazards of asbestos." Second, Nesbiet attempts to refute the Court's finding that the affidavit of Admiral Ben J. Lehman "raises the inference that GE did not provide a warning concerning the dangers of asbestos because the Navy did not permit any such warning." Neither of these factual matters provides a basis for reconsideration.
See 3/30/05 Letter of Robert J. Gordon, Counsel to Nesbiet, to the Court at 2.
Nesbiet, 2005 WL 697966, at *3.
With respect to Dr. Betts's deposition testimony, the Court did consider the testimony, which was cited in Nesbiet's memorandum of law in support of his motion to remand, but disagrees with Nesbiet's interpretation of what Dr. Betts in fact said. Dr. Betts at no point stated in the deposition that the Navy would have allowed GE to warn about the dangers of asbestos during World War II. Rather, the question and answer to which Nesbiet refers in his letter states:
See Plaintiff's Memorandum of Law in Support of His Motion to Remand ("Remand Mem.") at 19-20.
Q. Do you have an opinion as to whether or not the Navy would have allowed a warning at any point in time on a piece of equipment or an asbestos-containing product about the hazards of asbestos? Do you have an opinion on that subject?
A. They later allowed it, so I presume they would allow it. That's all I can say.
Deposition Under Oral Examination of Lawrence Betts, Ex. K to Affidavit of Bryan Belasky, Counsel to Nesbiet, at 113-14 (emphasis added).
Because the question clearly asks whether warnings were allowed "at any point in time," Dr. Betts's answer cannot reasonably be interpreted as an admission that the Navy allowed warnings about asbestos during World War II. Indeed, when subsequently asked when the Navy first allowed such warnings, Dr. Betts responded as follows: "I'm not sure. I know that manufacturers started putting warnings on asbestos-containing materials in the '60s sometime. Do I recall seeing it in the '70s? Yeah, I'm sure I saw asbestos warnings in the '70s." Nesbiet's attorneys appear to have convinced themselves that Dr. Betts said something in the deposition that he did not in fact say. The fact that the Court did not agree with their interpretation of the testimony is not a legitimate basis for reconsideration.
Id. at 114.
Nor does Nesbiet's disagreement with the Court's finding that Admiral Lehman's affidavit raises a certain inference justify reconsideration. Nesbiet has pointed to no fact that the Court overlooked in reaching its conclusion. While the Court appreciates that differences of opinion might exist concerning the interpretation of the facts before it, a motion to reconsider is not the proper vehicle for resolving such differences. Indeed, the question of whether or not Admiral Lehman's affidavit raised an inference that the Navy prohibited warnings about asbestos during World War II was at the heart of the Court's Opinion, and it was an issue that was ably argued by both sides in their memoranda of law. The Court weighed the evidence carefully and reached a conclusion. That one side disagrees with the conclusion is not a basis for reconsideration.
Because Nesbiet's motion to reconsider would be futile, his request that this Court intervene in the proceedings of the JPML is denied. I am also considering counsel's letter as a motion for reconsideration and am denying that motion.
B. Certification
The first statutory factor is not met here. Nesbiet has not identified any discrete controlling issue of law that he intends to challenge. Rather, Nesbiet's letter focuses solely on this Court's interpretation of the facts, suggesting that he merely disagrees with the result.
In addition, interlocutory review would not materially advance the ultimate termination of this lawsuit — the last, and most important, of section 1292(b)'s three factors. "An immediate appeal is considered to advance the ultimate termination of the litigation if that `appeal promises to advance the time for trial or to shorten the time required for trial.'" While Nesbiet has repeatedly insisted in other submissions to the Court that this case will progress more quickly in state court than it will in the federal MDL, the fact remains that this case must nonetheless be fully litigated, whether the trial and subsequent appeals occur in state or federal court. Therefore, an interlocutory appeal would not materially advance the ultimate termination of this lawsuit.
See Koehler, 101 F.3d at 865-66 ("The use of § 1292(b) is reserved for those cases where an intermediate appeal may avoid protracted litigation."); Lerner v. Millenco, L.P., 23 F. Supp. 2d 345, 347 (S.D.N.Y. 1998) ("The Court of Appeals has emphasized the importance of the third consideration in determining the propriety of an interlocutory appeal.").
In re Oxford Health Plans, Inc., 182 F.R.D. 51 (S.D.N.Y. 1998) (quoting 16 Charles A. Wright Arthur Miller, Federal Practice and Procedure § 3930 p. 432 (2d ed. 1996)).
See, e.g., Remand Mem. at 1.
Because Nesbiet has not met all of the factors of section 1292(b), his request for certification must be denied.
IV. CONCLUSION
For the foregoing reasons, Nesbiet's request that this Court seek an adjournment of the JPML's consideration of the transfer of this case to the MDL is DENIED. His request for reconsideration is also DENIED. In addition, Nesbiet's request that the Court amend its March 28 Opinion to include certification for an interlocutory appeal is DENIED.
SO ORDERED.