Opinion
Civil Action No. 03-5242(JBS).
March 12, 2004
Frank A. Luchak, Esq., Duane Morris LLP, Cherry Hill, NJ and Howard M. Hoffmann, Esq. (pro hac vice) Duane Morris LLP, Chicago, IL, Attorneys for Plaintiff.
Christopher J. Christie, Esq., United States Attorney, By: Paul A. Blaine, Esq., Assistant U.S. Attorney, Camden, NJ, Attorney for Defendants.
OPINION UPON MOTION FOR RECONSIDERATION
This matter comes before the Court upon Plaintiff's motion for reconsideration, pursuant to Fed.R.Civ.P. 60(b)(2), of this Court's December 15, 2003 Order, denying Plaintiff's motion for a preliminary injunction, which sought to enjoin Defendants from preventing Wedgewood Village Pharmacy, Inc. from receiving, storing, preparing and dispensing controlled substances and listed chemicals at its new pharmacy until final resolution of a pending Order to Show Cause. Wedgewood Village Pharmacy, Inc. v. Ashcroft, 293 F. Supp. 2d 462 (D.N.J. 2003). The issue presented here is whether alleged newly discovered evidence, developed during the Order to Show Cause proceedings before the Administrative Law Judge the week of January 26, 2004, should counsel this Court to now grant the preliminary injunction sought by Wedgewood that was denied in December 2003. This Court holds that it does not.
I. BACKGROUND
In brief, Wedgewood Village Pharmacy, Inc. ("Wedgewood") is a New Jersey licensed pharmacy specializing in filling prescriptions for compounded drugs. These drugs include controlled substances and non-controlled substances, for both humans and animals. The DEA, following an investigation, filed an administrative Order to Show Cause against Wedgewood on September 8, 2003, seeking to revoke Wedgewood's registration to sell controlled substances due to an alleged pattern of violations of regulations. While the investigation leading to the Order to Show Cause was underway, and unbeknownst to the DEA, Wedgewood was planning to move its principal place of business to a larger facility. It had signed a ten-year lease on these new premises in January 2003. Wedgewood's lease on its former premises in Sewell, New Jersey expired at the end of June 2003, after which time, Wedgewood remained there as tenant on a month to month basis, with the agreement that it would vacate by November 1, 2003.
On or about October 21, 2003, Wedgewood notified the DEA that Wedgewood was moving to its new facility on October 31, 2003. On October 30, 2003, Wedgewood received a letter from the DEA dated October 27, 2003 informing it that Wedgewood's address change constituted a modification of Wedgewood's registration; moving or transporting to, or storing controlled substances at the new location was prohibited; and Wedgewood's request for an address change would be considered at the hearing upon the existing Order to Show Cause, which was then expected to be scheduled before an Administrative Law Judge. The DEA's decision to treat Wedgewood's request for an address change as an application for registration, and that such permission be denied pending the outcome of the revocation hearing, was consistent with the applicable statute and regulations, including 21 U.S.C. §§ 823 824 and 21 C.F.R. § 1301, et seq., as explained in this Court's opinion, Wedgewood Village Pharmacy, 293 F. Supp. 2d at 466-68, 469-71. Without such DEA approval, Wedgewood could not exercise its registration with respect to controlled substances at an unapproved location. When Wedgewood moved its operations on November 1, 2003, therefore, it could continue to fill prescriptions for the non-controlled pharmaceuticals which constituted about 70% of its sales, but it was and remains unable to dispense controlled substances, awaiting a final determination of the show cause matter before the administrative agency.
A. Events Giving Rise to the Original Order to Show Cause
DEA Camden conducted an investigation of Wedgewood's activities in March and April 2003. The DEA was developing information that led its agents to believe that Wedgewood was an unregistered manufacturer of drugs rather than the registered pharmacy it claims to be. On April 29, 2003, the DEA Camden Resident Office placed an administrative "Code 6" on the registration record of Wedgewood, which acted to prevent any automatic renewal of Wedgewood's registration. By virtue of the DEA regulation at 21 C.F.R. § 1301.36(I), this action did not prevent Wedgewood from continuing to operate under its DEA registration at its former registered premises. In Spring of 2003, Wedgewood timely applied for the renewal of its registration because the registration was due to expire. The DEA did not renew Wedgewood's registration. Without a valid registration, Wedgewood would not be able to continue its business. Instead, Wedgewood and the DEA entered into an agreement, pending the resolution of Wedgewood's license renewal, that allowed Wedgewood to continue to dispense controlled drugs pending further investigation by DEA.
On May 3, 2003, DEA Camden forwarded to DEA Headquarters a recommendation for the issuance of an Order to Show Cause ("OTSC") proposing to revoke Wedgewood's registration. As Wedgewood, in DEA's view, was operating outside its retail pharmacy registration by conducting manufacturing activities without an appropriate DEA registration, the DEA Newark Acting Special Agent-in-Charge sent a letter to Wedgewood dated August 21, 2003, advising it to immediately cease and desist the identified unlawful activities. Meanwhile and unknown to DEA, Wedgewood continued with its expansion plans.
Subsequently, on September 8, 2003, the DEA Deputy Assistant Administrator for the Office of Diversion Control issued an administrative Order to Show Cause to Wedgewood, proposing to revoke Wedgewood's DEA registration and to deny any pending applications for renewal of its registration pursuant to 21 U.S.C. §§ 824 and 823. The Show Cause Order contains twentythree allegations of violations of certain Food Drug and Cosmetic Act provisions as well as some DEA record-keeping violations for controlled substances. Wedgewood filed its request for a hearing on the Order to Show Cause on October 16, 2003. An Administrative Law Judge was assigned and a briefing and disclosure schedule was set.
B. Facts Giving Rise to TRO/Preliminary Injunction Motions
Wedgewood filed its Complaint herein on November 5, 2003, and Wedgewood moved for a TRO. This Court heard lengthy arguments and ruled from the bench, denying Wedgewood's motion. See Tr. 11/7/03 at 77:17 to 90:17. The Court scheduled Plaintiff's motion for a preliminary injunction in order to hear testimony and to give more detailed consideration to the parties' positions on two dates in November, 2003. On December 15, 2003, this Court denied the preliminary injunction motion, finding that the DEA's determination to deny Wedgewood's modification pending the revocation proceedings was not arbitrary and capricious.Wedgewood Village Pharmacy v. Ashcroft, 293 F. Supp. 2d at 472-73. The Court also found that Wedgewood would not sustain irreparable injury while waiting for its registration, and that the equities tilted against granting relief. Wedgewood filed a notice of appeal in the Third Circuit of this Court's denial of the preliminary injunction on January 16, 2004.
C. Administrative Hearing
On January 26, 2004, the administrative hearing on the DEA's Order to Show Cause of September 8, 2003, commenced. Administrative Law Judge ("ALJ") Gail Randall stated that the issue for determination was whether the record as a whole established by a preponderance of the evidence that the DEA should revoke Wedgewood's certification of registration as a retail pharmacy, and deny any pending renewal or modification applications of that registration, because continued registration would be inconsistent with the public interest as defined in 21 U.S.C. § 823(f).
At the start of the hearing, the DEA sought the ALJ's leave to bifurcate the presentation of its case in chief, in order to allow sufficient time for the preparation of an expert witness who could not be ready to testify that week. The DEA proposed to immediately go forward with the rest of its case as far as possible. The ALJ did not adjudicate the bifurcation motion, but instead, proposed to leave it to the DEA to make an election of the outcome to be obtained, which the DEA ultimately deemed unacceptable. The DEA then sought the ALJ's reconsideration of her proposal, or alternatively, leave to take an interlocutory appeal and a stay of further proceedings during such appeal. The ALJ denied reconsideration, granted the application for leave to take an interlocutory appeal, and denied an interim stay of the hearing. The DEA subsequently notified the ALJ and Wedgewood on February 6, 2004 that it would not pursue an interlocutory appeal of the ALJ's election proposal made in response to the DEA application for additional time to prepare its expert witness.
The parties then proceeded over the next two days with opening statements, the presentation and acceptance into the record of their numerous respective exhibits, and rested without either party calling any witnesses to testify. The ALJ then heard the parties' closing statements, and established dates for post-hearing submissions, namely, March 3, 2004 for proposed corrections to the record, and March 24, 2004 for proposed findings.
On February 17, 2004, Wedgewood filed the instant motion for reconsideration pursuant to Fed.R.Civ.P. 60(b)(2) based upon alleged new evidence and this Court heard oral argument on March 5, 2004.
II. DISCUSSION
A. Jurisdiction
Plaintiff filed a notice of appeal before the Third Circuit Court of Appeals following this Court's December 15, 2003 Order, denying its motion for a preliminary injunction. Despite this fact, this Court retains jurisdiction over the present motion. "Although the filing of a notice of appeal ordinarily divests the district court of jurisdiction, S.E.C. v. Investors Security Corp., 560 F.2d 561, 568 (3d Cir. 1977), in an appeal from an order granting or denying a preliminary injunction, a district court may nevertheless proceed to determine the action on the merits." United States v. Price, 688 F.2d 204, 215 (3d Cir. 1982). As the present motion for reconsideration asks this Court to reconsider its decision on the earlier motion for preliminary injunction, this Court retains jurisdiction and the motion is therefore properly before it.
B. Standard of Review
Wedgewood moves for reconsideration pursuant to Fed.R.Civ.P. 60(b)(2). Under Rule 60(b)(2), "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment order or proceeding" when there is "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Fed.R.Civ.P. 60(b)(2). A party is entitled to have the Court reconsider its case when the newly discovered evidence is more than cumulative, could not have been discovered through the exercise of reasonable diligence prior to the Court's first determination, and that evidence would change the outcome.See Giordano v. McCartney, 385 F.2d 154, 155 (3d Cir. 1967).
Rule 60(b), however, does not apply in the instant case. As a matter of pure procedure, Rule 60(b) applies only to final judgments and orders. Under case law in the Third Circuit, this Court's Order of December 15, 2003 is considered interlocutory in nature and thus, nonfinal. See Verzilli v. Flexon, Inc., 295 F.3d 421 (3rd Cir. 2002). Rule 60(b) does not, therefore, automatically apply to it. See, Advisory Committee Note, 1946 Amendment, Subdivision (b), fifth paragraph ("interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires"). In fact, a number of courts have held that Rule 60(b) does not apply to preliminary injunction motions. See e.g., Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000) (Rule 60(b) inapplicable to preliminary injunction); Fayetteville Investors v. Commercial Buildings, Inc., 936 F.2d 1462, 1469 (4 Cir. 1991); UMWA 1974 Pension Trust v. Pittston Co., 793 F. Supp. 339, 344-45 (D.D.C. 1992), aff'd, 984 F.2d 469 (D.C. Cir. 1993); Commonwealth of Pennsylvania v. Flaherty, 760 F. Supp. 472, 477 (W.D. Pa. 1991) (Rule 60(b) is inapplicable to an order granting or denying preliminary injunction); Juzwin v. Amtorg Trading Corp., 718 F. Supp. 1233, 1234 (D.N.J. 1989).
Failing to qualify under Rule 60(b), this case is more appropriately governed under the court's inherent authority to revisit previous interlocutory orders based upon alleged changes of circumstance or new evidence. "`While the law of the case doctrine bars courts from reconsidering matters actually decided, it does not prohibit courts from revisiting matters that are avowedly preliminary or tentative.'" St. Thomas — St. John Hotel Tourism Assoc., Inc. v. Government of the U.S. Virgin Islands, 357 F.3d 297, 301 (3d Cir. Feb. 11, 2004) (quoting Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999)). Preliminary injunctions are, by their nature, impermanent. The party seeking reconsideration of the preliminary injunction decision, however, must establish an adequate reason for the court to do so. One such reason is intervening new facts or law. Id. at 301-02 (citing In re City of Philadelphia Litigation, 158 F.3d 711, 718 (3d Cir. 1998)).
In support of reconsideration, Wedgewood makes two main arguments: first, that the administrative and appellate process will be lengthier than anticipated, such that the length of the administrative process will irreparably harm Wedgewood; and second, the DEA's reliance on the allegations in the OTSC to deny Wedgewood's modification to its registration was arbitrary and capricious and its failure to present testimony at the administrative hearing reveals a weak case for revocation.
C. Length of the Administrative Process and Irreparable Harm
Wedgewood contends that the DEA misled both it and this Court with respect to how long it will take for the administrative hearing process on the DEA OTSC to reach a final decision, arguing that "[a] premise behind this Court's December 15, 2003 Decision and Order was that the OTSC would proceed with relative dispatch." (Wedgewood Brief, p. 2). This Court, however, labored under no such misconception. Both Wedgewood and this Court were very much aware that the administrative process would not be quick, but rather, by Wedgewood's own estimates, time consuming in excess of one year. Wedgewood Village Pharmacy, 293 F. Supp. 2d at 466 ("Wedgewood asserts that the administrative hearing and its resolution, including any appeal, may be a year or more away"). Furthermore, this Court made no predictions about when, if ever, Wedgewood might expect to obtain relief in the administrative proceeding. Id. at 473 ("[T]his Court does not speculate about the outcome of the future ALJ hearing"). Instead, this Court observed only that the administrative show cause proceeding was underway and that "[a] hearing before the ALJ [was] anticipated in early 2004." Id. at 465. That has come to pass — the presentation of evidence before the ALJ was concluded on January 28, 2004, a date earlier than this Court anticipated.
In the initial preliminary injunction hearing, contrary to the overheated accusations by Wedgewood's counsel, the DEA misled no one about the time frame. The current state of affairs is equally unpersuasive for Wedgewood's motion to carry the day. The hearing before the ALJ concluded on January 28, 2004, with both parties relying on the documentary exhibits accepted into the record by the ALJ. Notably, both sides declined to offer witness testimony.
Unfortunately, counsel for Plaintiff finds it fit to make unfounded accusations. In its brief, Wedgewood's counsel writes, "At the November 25 and 26 hearing, the Government knowingly permitted the Court and Wedgewood to operate on the false assumption that the Order to Show Cause . . . would resolve Wedgewood's registration in early to late spring 2004." (p. 2); "The Government, knowing otherwise, had an obligation to so inform the Court, but did not. The Government was content to let the Court proceed on a misapprehension." (p. 15). Mr. Hoffmann, however, made similar predictions to this Court. "[T]his order to show cause will never be resolved come March of 2004. That hearing is going to go on for some considerable amount of time. . . . It's going to be labeled for early 2005 before that's resolved." (Nov. 26, 2003 Hearing Transcript, 95:8-10, 16-17). This statement by Mr. Hoffmann therefore led this Court to state in its December 15, 2003 Opinion that "Wedgewood asserts that the administrative hearing and its resolution, including any appeal, may be a year or more away." Wedgewood Village Pharmacy, Inc., 293 F. Supp. 2d at 466.
In accordance with 21 C.F.R. § 1316.63(b), the parties then had 30 days in which to propose corrections to the transcript of that proceeding, and the ALJ must "promptly" order such corrections as are required. Any proposed corrections were to be submitted to the ALJ by March 3, 2004. (ALJ Tr. at 394). Proposed findings of fact and conclusions of law, and posthearing briefs, are to be submitted by March 24, 2004, in accordance with 21 C.F.R. § 1316.64. (Id.) Wedgewood has moved to expedite that schedule. (Govt. Opposition, Tab 2). Thereafter, the ALJ must prepare her report containing recommended findings and conclusions as "soon as practicable" thereafter. 21 C.F.R. § 1316.65(a). Within 25 days after the ALJ's report has been served on the parties, the ALJ must certify the record to the DEA Administrator, containing among other things the ALJ's report and any filed exceptions to it. 21 C.F.R. §§ 1316.65(c), 1316.66(a). "As soon as practicable after" the record has been certified to the Administrator, he is to publish his final order in the Federal Register. 21 C.F.R. § 1316.67. (ALJ Tr. at 395-96). This process, readily identifiable from the published regulations, must play itself out in whatever time that takes based on the complexities of the case and the scheduling demands of the officials to whom the decision is entrusted by law. There is nothing to suggest that the administrative process and any appeal therefrom will not conclude in "early 2005," as Wedgewood itself offered this Court in late November 2003, when the preliminary injunction motion was pending before it.
In further arguing irreparable harm, Wedgewood points to the course of events that have transpired since the denial of the preliminary injunction in December 2003, detailing the cost saving measures it has taken. Wedgewood's owners, Mr. and Mrs. Malmberg, have taken 65% salary reductions. (Affidavit of George Malmberg, ¶ 2(a)). In addition, Wedgewood has laid off six permanent employees out of its workforce of about 70, id. at ¶ 2(b), and has not been able to make any pension contributions for its employees yet this year, has not been able to give any of its employees bonuses so far, and has instituted a salary freeze. (Id. at ¶ 2(c)). Moreover, Wedgewood once again argues irreparable harm in the loss of customers and damage to its reputation that have resulted from these proceedings. These harms, however, far from being new, were presented to and considered by the Court in rendering its December 2003 Opinion,see Wedgewood Village Pharmacy, Inc., 293 F. Supp. 2d at 474-75, and in greater detail in the sealed Appendix to that Opinion.
This Court fully expected that this sort of contraction of sales would result, but observed, "Wedgewood's inability to fill controlled substance prescriptions is largely a product of its own doing and the harm, as grave as it may be, does not counsel in favor of granting the injunction." Id. at 475. Notably, Wedgewood itself also anticipated this harm, predicting in fact that it would be far worse: "Wedgewood asserts that if the DEA continues to prohibit it from dispensing controlled substances at its new location, it will be out of business by approximately January 2, 2004, leaving approximately 70 employees unemployed."Id. at 474. As a highly regulated pharmacy seeking to dispense controlled substances, Wedgewood is necessarily subjected to the expenses, delays and prohibitions inherent in the process while the DEA re-examines Wedgewood's suitability; that Wedgewood may lose profits, or even good will of customers, while the DEA concludes the process does not rise to the special or unreasonable harm for which injunctive relief provides redress when the regulatory agency is moving forward with all deliberate speed. As of the date of this Opinion, Wedgewood's doors are still open, having let go only six employees. A temporary salary freeze is likewise not imposing hardship upon the workforce.
Thus, the harm is not significantly different than what was predicted by the Court in late 2003, and it is substantially less than Wedgewood predicted, and thus does not satisfy the burden required under a motion for reconsideration. There is no new evidence of harm to Wedgewood as the DEA proceeds to adjudicate the show cause hearing.
D. Reconsideration of the Likelihood of Success on the Merits
Wedgewood also attacks the DEA's decision not to offer live witness testimony at the ALJ hearing, and to instead rely on its exhibits, regarding this as a concession that DEA's revocation proofs are not strong. According to the DEA, it did not grant Wedgewood's modification to its registration to dispense controlled substances from its new location because of the pending OTSC. This Court gave a limited degree of deference to the allegations in the OTSC, refusing to ignore the serious allegations and investigative bases for DEA's proposed revocation. Wedgewood Village Pharmacy, Inc., 293 F. Supp. 2d at 473 ("While this Court does not speculate about the outcome of the future ALJ hearing, neither will this Court ignore the serious allegations and the investigative bases for DEA's proposed revocation"). Wedgewood now asserts that the OTSC allegations deserve no deference from this Court because the DEA did not offer witness testimony at the ALJ hearing, and thus, the success on the merits calculus is now different than it was in December 2003.
As discussed at length in this Court's December 15, 2003 Opinion, the Government has the burden of demonstrating that Wedgewood's registration should be revoked. 21 C.F.R. § 1316.56. The administrative proceeding on the proposal to revoke Wedgewood's DEA registration, and to deny its application for a modification of the existing registration, is governed by the rulemaking and administrative hearing provisions in 5 U.S.C. §§ 551-559 (comprising chapter 5, subchapter II). See, 21 U.S.C. § 824(c). Pursuant to 5 U.S.C. § 556(d), and 21 C.F.R. § 1316.59(a), any competent, relevant, material and non-repetitious oral or documentary evidence may be received at the hearing, as necessary to form the "substantial evidence" upon which any proposed agency sanction must rest. Id. Hearsay is admissible evidence in a DEA proceeding of the type in which Wedgewood is involved, Robert A. Leslie, M.D., 68 Fed. Reg. 15,227, 15,231 (DEA 2003), and may by itself constitute substantial evidence in support of an administrative decision. Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1129-30 (D.C. Cir. 1979). The DEA's investigative documents, as well as documents DEA obtained from its search of Wedgewood's premises, were all apparently admitted into evidence by the ALJ. (In the present motion, neither party has described in detail what that evidence is, nor what the rebuttal evidence of Wedgewood is).
The exhibits of both parties offered in support of their respective arguments have, in any event, been received and are before the ALJ for her consideration in formulating her recommended decision. Wedgewood makes no argument here that the DEA's 34 documentary exhibits cannot be deemed substantial evidence in support of its position before the ALJ. Instead, Wedgewood focuses on the DEA's reliance on documents rather than live witnesses before the ALJ.
Neither party, however, was under any legal compulsion to adduce live witness testimony, and neither did so. While this Court recognizes DEA has the burden before the ALJ, if Wedgewood desired to present such evidence to the ALJ, nothing precluded it from doing so, including Wedgewood's ability to call knowledgeable DEA employees as witnesses, or to call its own expert witness. See, 21 C.F.R. § 1316.59(a) (competent, reliable, material evidence shall be admitted), and § 1316.52(d) (subpoenas may be issued to compel the attendance of witnesses). That DEA did not present the case before the ALJ that Wedgewood deems sufficient to prevail in its desire to revoke its registration as a retail pharmacy dealing with controlled substances does not render the Government's actions arbitrary and capricious. The ALJ and the DEA Administrator on review of the ALJ's recommended decision, not Wedgewood, will be the arbiters of the validity of the OTSC allegations, the DEA's proofs, and the fate of Wedgewood's registration.
A motion for preliminary injunction requires that the district court engage in a delicate balancing, being forced to speculate, as best it can, about the likelihood of success on the merits. "[A] decision on a preliminary injunction is, in effect, only a prediction about the merits of the case." Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 70 (3d Cir. 1999). As the DEA called no witnesses before the ALJ, much of what is before her in the form of documentary evidence was before this Court in November and December 2003, including what was identified here as Government Exhibit 9(A) and its numerical subexhibits. Exhibit 9(A) consists of extensive and detailed DEA investigative reports in support of the DEA Newark Field Division, Camden Resident Office's request for an Order to Show Cause and Immediate Suspension of Wedgewood's retail pharmacy license based on alleged violations of Title 21, Code of Federal Regulations and the Controlled Substances Act. These recorded observations and conclusions of DEA Field Division Agents were regarded by this Court — as they can be by the ALJ — as competent and reliable evidence. While the Government's case is characterized as weaker by Wedgewood because it called no witnesses during the administrative hearing, that does not alter the merits calculation here. The DEA's decision to call no witnesses at the administrative hearing and to rely upon the documentary evidence, though unusual, does not amount to a failure to prosecute the case. No witness or investigator has recanted, so far as this Court is aware, nor has the ALJ expressed an opinion on the merits of the revocation matter. Furthermore, this Court does not place itself in the shoes of the ALJ, charged with evaluating the strength of that evidence, but rather, predicts the likelihood of success on the merits based on the evidence presented before it. The evidence before this Court has not changed significantly since the preliminary injunction motion was decided in December 2003 and thus, this Court finds no significant change in Wedgewood's likelihood of success on the merits to warrant the issuance of injunctive relief now.
E. Other Preliminary Injunction Considerations
In addition to Wedgewood's failure to offer new evidence not before available, its arguments are limited to the issue of irreparable harm that manifests itself in adverse economic effects resulting from the administrative hearing process and the likelihood of success on the merits based on what transpired at the administrative hearing. Wedgewood makes no argument as to a change in the harm to the defendants or the public interest. While it is true that the Third Circuit considers the two most significant factors to be irreparable harm and success on the merits, see Hoxworth v. Blinder, Robinson Co., 903 F.2d 186, 199 (3d Cir. 1990), this Court cannot ignore the remaining factors in engaging in the delicate balance required for an injunction. Those factors, which counseled in late 2003 in favor of denying the injunction, have not considerably changed and thus cannot provide the basis for a different result. See Wedgewood Village Pharmacy, Inc., 293 F. Supp. 2d at 475-76.
III. CONCLUSION
For the reasons discussed above, Plaintiff's motion for reconsideration will be denied. The accompanying Order is entered.
ORDER
This matter having come before the Court upon Plaintiff's motion for reconsideration of its Opinion and Order of December 15, 2003; and the Court having considered the parties' submissions and having heard oral argument on March 5, 2004; and for the reasons stated in the Opinion of today's date; and for good cause shown;ORDERED that Plaintiff's motion for reconsideration [Docket Item No. 41-1] shall be, and hereby is, DENIED.