Phillips v. The City of New York et al

Filing 148

MEMORANDUM AND ORDER denying 145 , re 143 . Defendants' motion for reconsideration of 143 is denied. So Ordered by Magistrate Judge Cheryl L. Pollak on 3/15/2018. (Blase, Brendan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LYNDELLE T. PHILLIPS,
Plaintiff,
MEMORANDUM AND ORDER
15 CV 1795 (JBW) (CLP)

-againstTHE CITY OF NEW YORK et al.,
Defendants.
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POLLAK, United States Magistrate Judge:

Plaintiff Lyndell T. Phillips, Esq., commenced this action against the City of New York
(“the City”), Salvatore J. Cassano, Commissioner of the New York City Fire Department
(“FDNY”), and First Deputy Commissioner Daniel Shacknai, alleging discrimination based on
race and retaliation, in violation of 42 U.S.C. §§ 1981 and 1983. An Amended Complaint was
filed on June 19, 2015. Trial is scheduled to commence on April 16, 2018 before the Honorable
Jack B. Weinstein.
On February 15, 2018, this Court denied as untimely defendants’ motion to compel
plaintiff’s 2015 and 2016 tax returns. (See Order, Feb. 15, 2018, ECF No. 143). The defendants
filed their motion for reconsideration on February 26, 2018. Plaintiff has not filed a response,
and the time to do so has passed. See L. Civ. R. 6.1(a), 6.3.
For the reasons set forth below, defendants’ motion for reconsideration is denied.
A. Legal Standard Governing Motions for Reconsideration
Local Civil Rule 6.3 allows parties to file motions for reconsideration within 14 days of a
court order regarding “matters or controlling decisions which counsel believes the court has
overlooked.” N.Y.E.D. L. Civ. R. 6.3. “The standard for granting such a motion is strict, and
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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.” Hastings Dev., LLC v. Evanston Ins. Co.,
No. 14 CV 6203, 2016 WL 3632708, at *2 (E.D.N.Y. June 29, 2016) (quoting Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)); accord Salveson v. JP Morgan Chase & Co., 663
F. App'x 71, 75–76 (2d Cir. 2016), cert. denied, 137 S. Ct. 1826 (2017).
Generally, courts have found that the main grounds justifying reconsideration are “an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.” Id. (quoting Virgin Atl. Airways Ltd. v. National
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). Thus, the “moving party may not advance
new facts, issues[,] or arguments not previously presented to the Court.” Haggar Int’l Corp. v.
United Co. for Food Indus. Corp., No. 03 CV 5789, 2013 WL 3356953, at *1 (E.D.N.Y. July 3,
2013) (quoting Winkler v. Metro. Life Ins. Co., 340 F. Supp. 2d 411, 413 (S.D.N.Y. 2004)); see
also City of New York v. Milhelm Attea & Bros., Inc. et al, 591 F. Supp. 2d 234, 236 (E.D.N.Y.
2008) (finding that “[a] motion for reconsideration” is not “an occasion for repeating old
arguments previously rejected”) (quoting Associated Press v. United States Dep’t of Def., 395 F.
Supp. 2d 17, 19 (S.D.N.Y. 2005)); Ferrand v. Credit Lyonnais, 292 F. Supp. 2d 518, 520
(S.D.N.Y. 2003) (holding that Rule 6.3 is “not . . . a vehicle for a party dissatisfied with the
court’s ruling to advance new theories that the movant failed to advance in connection with the
underlying motion”). New evidence is evidence that was “truly newly discovered or could not
have been found by due diligence.” Space Hunters, Inc. v. United States, 500 F. App’x 76, 81
(2d Cir. 2012) (quoting United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir.
1983)); see also United States v. All Funds on Deposit in, or Transferred to or Through, Banc of
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Am. Account No. 207-00426 Held in the Name of Kenneth V. Jaeggi and Patti S. Jaeggi, No. 05
CV 3971, 2007 WL 2114670, at *2 (E.D.N.Y. July 16, 2007) (explaining that “[a] party may not
use a motion to reconsider as an opportunity . . . to introduce new evidence that should have been
advanced on the previous motion or which could have been discovered in the exercise of due
diligence”) (citations omitted).
The Rule is to be “narrowly construed and strictly applied so as to avoid repetitive
arguments on issues that have already been considered fully by the court,” Callari v. Blackman
Plumbing Supply, Inc., 988 F. Supp. 2d 261, 287 (E.D.N.Y. 2014) (quoting Trans-Pro Logistic
Inc. v. Coby Elecs. Corp., No. 05 CV 1759, 2010 WL 4065603, at *1 (E.D.N.Y. Oct. 15, 2010)),
and such a motion must not be used as a substitute for an appeal. See Ferrand v. Credit
Lyonnais, 292 F. Supp. 2d at 520 (stating that Local Rule 6.3 should not be used “as a substitute
for appealing a final judgment”). Instead, the rule “is an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.” Haggar Int’l
Corp. v. United Co. for Food Indus. Corp., 2013 WL 3356953, at *2 (quoting Winkler v.
Metropolitan Life Ins. Co., 340 F. Supp. 2d at 412)). Rule 6.3 was designed to provide a
mechanism to “correct a clear error or prevent manifest injustice.” Jordan v. Metropolitan Life
Ins. Co., No. 03 CV 4110, 2004 WL 1752822, at *2 (S.D.N.Y. Aug. 4, 2004) (quoting Doe v.
New York City Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied sub nom., Catholic
Home Bureau v. Doe, 464 U.S. 864 (1983)).
B. Analysis
Defendants first claim that reconsideration is appropriate because Judge Weinstein’s
“denial of the motion for summary judgment has required [defendants’ counsel] to work on
several tracks, particularly on pre-trial matters . . . and getting this case ready for trial.” (Defs.’
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Mot. at 1, Feb. 26, 2018, ECF No. 145). Defendants argue that they have rectified their initial
failure to submit relevant portions of discovery requests as required by Local Civil Rule 5.1, and
that plaintiff will suffer no prejudice if the Court grants the motion for reconsideration. (See id.
at 1-2). Second, defendant contends that plaintiff’s expert report “is silent as to any income
plaintiff earned after 2014,” and that the Court should either require production of the 2015-2016
tax returns or should preclude plaintiff from seeking back pay for the period after 2014. (Id. at
2).
Defendants’ motion for reconsideration presents only information that was available to
the defendants at the time they made their initial motion, and therefore does not qualify as
“newly discovered” information for purposes of reconsideration. Space Hunters, Inc. v. United
States, 500 F. App’x 76, 81 (2d Cir. 2012). Indeed, defendants essentially explain that they
neglected discovery and other pretrial matters because they expected the district court would
grant their motion for summary judgment. (See Defs.’ Mot. at 1). That was a choice defendants
and their counsel made. It is not a reason for this Court to alter its earlier decision.
More importantly, while the defendants have now attached a copy of the relevant request
for production, they have omitted any reference to the date of the request. Thus, the Court is still
unable to determine what constitutes the period from “2010 to the present” in the context of the
request for production. (See Defs.’ Mot., Ex. A ¶ 11). The Court’s earlier decision was based on
the extreme tardiness of defendants’ motion to compel. Even if the request for production was
construed to be ongoing, the fact remains that discovery in this matter closed in July 2017 and
defendants’ request remains untimely.

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Defendants’ claim that plaintiff’s expert report is incomplete because it provides no
information about income plaintiff may have earned after 2014. The defendants remain free to
challenge the expert and limit his testimony on that basis before Judge Weinstein.
CONCLUSION
For the reasons set forth above, defendants’ motion for reconsideration of this Court’s
February 15, 2018 Order is denied.
The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
March 15, 2018
/s/ Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York

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