Jericho Group Ltd et al v. Mid-Town Development Limited Partnership et al

Filing 294

ORDER denying 279 Motion for Reconsideration -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, Plaintiff's motion for leave to file a motion for reconsideration of this Court's September 22, 2017 Order Adopting the Magistrate Judge's Report and Recommendation [DE # 276] is denied. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/26/2018. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
JERICHO GROUP LTD.,
:
:
Plaintiff,
:
:
-against:
:
MID-TOWN DEVELOPMENT LIMITED
:
PARTNERSHIP, et al.,
:
:
Defendants.
:
----------------------------------------------------------------x
DORA L. IRIZARRY, Chief United States District Judge:

SUMMARY ORDER
14-CV-2329 (DLI) (VMS)

On April 14, 2016, Defendant Robert Goebel (“Goebel”) moved to enforce a settlement
agreement (“Settlement Agreement”) with Plaintiff Jericho Group Ltd. (“Plaintiff”). See Mot. for
Settlement Enf’t & Order of Settlement & J. (“Mot. for Enf’t”), Dkt. Entry No. 240. On July 13,
2016, this Court referred Goebel’s motion to United States Magistrate Judge Vera M. Scanlon for
a Report and Recommendation (“R & R”).1 July 13, 2016 Order. The magistrate judge issued the
R & R on December 5, 2016, recommending that the motion be granted, with the caveat that one
clause in the agreement, the Guarantor Clause, be stricken as unenforceable. See R & R, Dkt.
Entry No. 265. Plaintiff timely filed objections to the R & R on December 19, 2016, and amended
those objections on December 21, 2016. See Dkt. Entry Nos. 267, 268. Goebel did not respond.
On September 22, 2017, this Court overruled Plaintiff’s objections, and adopted the R & R in its
entirety. See Mem. & Order, Dkt. Entry No. 276. Plaintiff now seeks permission to move for
reconsideration of that decision. Letter Seeking Permission to Move for Recons. (“Recons.
Letter”), Dkt. Entry No. 279. Goebel opposes. Dkt. Entry No. 281.

1

The Court assumes familiarity with the facts of this case as set forth in the R & R. R & R at 1-14.

“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.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (internal
citations omitted). Typical grounds for reconsideration include “‘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 Tr., 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 is not an opportunity for litigants to reargue
their previous positions or present new or alternative theories that they failed to set forth in
connection with the underlying motion.” Callari v. Blackman Plumbing Supply, Inc., 988 F.
Supp.2d 261, 287 (E.D.N.Y. 2013) (internal citations omitted).
As relevant to the instant motion, Plaintiff objected to the R & R on the basis that
“removing the Guarantor Clause rendered the entire Settlement Agreement unenforceable.” Mem.
& Order at 4. In overruling that objection, this Court held that Plaintiff had failed to raise the
enforceability argument before the magistrate judge. “‘In this district and circuit, it is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge’s report and recommendation that could have been raised before the magistrate, but were
not.’” Mem. & Order at 5, quoting Sci. Components Corp. v. Sirenza Microdevices, Inc., No. 03cv-1851 (NGG) (RML), 2006 WL 2524187, at *2 (E.D.N.Y. Aug. 30, 2006) (collecting cases).
Indeed, in the Memorandum and Order, this Court noted that Plaintiff’s argument in objection to
the R & R was the opposite of the argument Plaintiff had advanced before the magistrate judge.
Mem. & Order at 5-6.

2

Plaintiff claims that the Court erred when it asserted that the enforceability argument had
not been raised before the magistrate judge. To support this claim, Plaintiff points to letters to the
Court that were filed on the docket before the magistrate judge issued her R & R. See generally,
Recons. Letter. The letters to which Plaintiff refers are: (1) a letter from Plaintiff’s counsel, dated
April 19, 2016, in opposition to the Motion for Enforcement (Dkt. Entry No. 243) (“April 19
Letter”); (2) a letter from Samuel Pfeiffer, who is the principal of Plaintiff but is not himself a
party to this action, dated April 18, 2016 (Dkt. Entry No. 244) (“Pfeiffer Letter”); and (3) a letter
from Plaintiff’s counsel, dated May 2, 2016, which sought permission to file a sur-reply in
opposition to the Motion for Enforcement (Dkt. Entry No. 250) (“May 2 Letter”). Recons. Letter
at 1.
The letters to which Plaintiff cites do not support Plaintiff’s argument that the Court erred.
First, Plaintiff admits that the April 19 Letter does not argue that the Settlement Agreement is
unenforceable. In the filing presently before the Court, Plaintiff’s counsel writes: “When I filed
Docket# 243 [the April 19 Letter] I did not yet challenge the validity of the [Settlement]
Agreement….” See Recons. Letter at 3. Second, it was not proper for the magistrate judge to
consider the Pfeiffer Letter as it was filed in violation of prior orders in this case. Mr. Pfeiffer was
warned repeatedly that he is not a litigant in this action, and that letters on his behalf may be filed
only by Plaintiff’s counsel. See May 13, 2015 Min. Entry; Oct. 14, 2015 Min. Entry; Dec. 13,
2016 Order.
Finally, the May 2 Letter merely sought permission to file a sur-reply. See May 2 Letter.
Such permission was not granted. See Dec. 5, 2016 Order. Moreover, even if permission had been
granted, any argument raised for the first time in the sur-reply would not be properly before the
Court. “‘Arguments may not be made for the first time in a reply brief.’” Zirogiannis v. Seterus,

3

Inc., 221 F. Supp.3d 292, 298 (E.D.N.Y. 2016) (quoting Knipe v. Skinner, 999 F.2d 708, 711 (2d
Cir. 1993)).
Plaintiff cannot show an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.

Accordingly, the

request for leave to file a motion for reconsideration is denied.

SO ORDERED.
Dated: Brooklyn, New York
September 26, 2018
/s/
DORA L. IRIZARRY
Chief Judge

4