Antech Diagnostics, Inc. v. Veterinary Oncology and Hematology Center, LLC et al

Filing 149

ORDER: For the reasons set forth in the attached Order, Antech Diagnostics, Inc.'s Motion for Reconsideration (Doc. No. 131 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 5/16/17. (Rafferty, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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ANTECH DIAGNOSTICS, INC.
:
:
Plaintiff,
:
:
:
v.
:
:
VETERINARY ONCOLOGY and HEMATOLOGY :
CENTER, LLC, et al.,
:
:
Defendants.
:
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Civil No. 16cv481(AWT)

ORDER RE MOTION FOR RECONSIDERATION
For the reasons set forth below, Antech Diagnostics, Inc.’s
Motion for Reconsideration (Doc. No. 131) is hereby DENIED.
“The standard for granting [a motion for reconsideration] is
strict . . . .”

Shrader v. CSX Transp., Inc., 70 F.3d 255,

257 (2d Cir. 1995) (citations omitted).

“A motion for

reconsideration should be granted only when the defendant
identifies ‘an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.’”

Kolel Beth Yechiel Mechil

of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d
Cir. 2013)(quoting Virgin Atl. Airways, Ltd. v. Nat’l Mediation
Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).

“A motion for

reconsideration may not be used to plug gaps in an original
argument or to argue in the alternative once a decision has been

made.”

SPGGC, Inc. v. Blumenthal, 408 F. Supp. 2d 87, 91

(D. Conn. 2006) (citation and quotation marks omitted).

“It is

also not appropriate to use a motion to reconsider solely to relitigate an issue already decided.”

Id. at 91-92.

In addition,

“[a] motion for reconsideration may not be used to advance new
facts, issues or arguments not previously presented before the
Court.”

Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y.

2001). See also Nat’l Union Fire Ins. Co. of Pittsburgh v. Stroh
Cos., Inc., 265 F.3d 97, 115-16 (2d Cir. 2001) (noting that
arguments raised for the first time on a motion for
reconsideration may be rejected as untimely).
As a threshold matter, Antech Diagnostics, Inc.’s (“Antech”)
motion for reconsideration should be denied because it has not
identified controlling decisions or data the court overlooked in
its ruling.

Not only were the three opinions on which Antech

relies in its motion for reconsideration not presented to the
court in connection with the defendants’ motion for partial
judgment on the pleadings, but they are not controlling decisions.
Moreover, these three decisions do not support Antech’s
position.

Antech does not even contend that the contract

provisions in VCA Clinipath Labs, Inc. v. Progressive Pet Animal
Hosp., P.C., 2:11-cv-12237-AC-MKM, 2013 WL 6152409 (E.D. Mich.
Nov. 22, 2013), and Antech Diagnostics, Inc. v. Downers Grove
Animal Hosp. & Bird Clinic, P.C., No. 12C2736, 2013 WL 773034
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(N.D. Ill. Feb. 28, 2013) are comparable to Section 5 of the
contract at issue here.

Also, the opinion in VCA Cenvet, Inc. v.

Winchester Veterinary Grp., Inc., No. 11-12123-DPW, (D. Mass. Aug.
31, 2015) appears to support the analysis in the court’s ruling on
the defendants’ motion for partial judgment on the pleadings.

At

page 23 of that opinion, which addresses liquidated damages, the
court states:
The language of Section 5 provides Antech the option
whether or not to seek damages separate from the
termination fee schedule of Section 5. In particular, I
note the language that “Antech may Terminate this
Agreement” if Winchester is in material breach and the
language that the fee schedule applies “[i]f Antech
elects to Terminate this Agreement.”
Id. slip op. at 23 (underlined emphasis added).
Finally, the court notes that during the telephonic status
conference, it did not mention the fact that the last sentence in
Section 6 of the Agreement is an integration clause, which
provides, “This Agreement constitutes the entire understanding and
agreement of the parties hereto relating to the subject matter
hereof.”

The “subject matter hereof” includes what happens “[i]f

Antech elects to Terminate this Agreement” in accordance with
Section 5.

As the court noted during the telephonic status

conference, the “subject matter hereof” does not include what
happens if Antech chooses to pursue a remedy other than electing
to terminate the Agreement pursuant to Section 5.
It is so ordered.
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Signed this 16th day of May, 2017, at Hartford, Connecticut.

/s/ AWT
_____
Alvin W. Thompson
United States District Judge

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