The Sands Harbor Marina Corp. et al v. Wells Fargo Insurance Services of Oregon, Inc.

Filing 414

MEMORANDUM & ORDER denying 402 Motion for Reconsideration: For the foregoing reasons, the motion for reconsideration is DENIED. The Eagle plaintiffs are directed to serve a copy of this Memorandum & Order upon Michael Reis and file a certificate of service forthwith. SEE ATTACHED ORDER FOR FURTHER DETAILS. So Ordered by Judge Gary R. Brown on 12/6/2022. (JC)

Case 2:09-cv-03855-GRB-ARL Document 414 Filed 12/06/22 Page 1 of 5 PageID #: 8256

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

X

THE SANDS HARBOR MARINA CORP.,
SANDS HARBOR MARINA LLC, THE
SANDS HARBOR MARINA OPERATING
CORP., SANDS MARINA OPERATING LLC,
GREG W. EAGLE, PINE CREEK RANCH,
LLC, and UNIVERSITY 1248, LLC,

MEMORANDUM &
ORDER
09-CV-3855(GRB)(ARL)

Plaintiffs,
-againstUSI INSURANCE SERVICE NATIONAL,
INC. f/k/a WELLS FARGO INSURANCE
SERVICES OF OREGON, INC., EVMC REAL
ESTATE CONSULTANTS, INC., LARRY
ESACOVE, THE ESTATE OF AIDA
ESACOVE, DAVID P. GUILOT, ANTHONY
B. CHOPRA, TISDALE & NICHOLSON, LLP,
JEFFREY A. TISDALE, and GUY C.
NICHOLSON,
Defendants.

FILED 
CLERK 

3:15 pm, Dec 06, 2022

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

X

GARY R. BROWN, United States District Judge:
Plaintiff Greg Eagle filed a motion for reconsideration of this Court’s order finding pro se
defendant Michael Reis covered by the Release Agreement, and thereby releasing him from
Eagle’s claims. See Electronic Order dated 08/03/2022; Docket Entry (“DE”) 402. For the reasons
that follow, the motion for reconsideration is DENIED.
Relevant Facts
The background of this matter, set forth in detail in this Court’s February 18, 2022
Memorandum and Order, DE 382, is incorporated by reference and familiarity with which is
assumed. For the sake of clarity, the Court will summarize additional facts related to the motion
for reconsideration.
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In June 2006, Reis and EVMC – the entity which allegedly defrauded Eagle – signed an
independent consulting agreement entitling Reis to commissions on referrals that he made to
EVMC. DE 345-1 at ¶ 95; DE 402-1. In 2007, one of Eagle’s associates, Jay Jones, told Eagle
that he believed that Reis had a personal agenda, should not be trusted, and would
unquestioningly make any representation at EVMC’s request. DE 345-1, ¶ 235. Nonetheless,
in September 2008, Eagle executed a release in favor of EVMC in exchange for a funding
capacity letter that he could provide to creditors and sellers. DE 345-1 at ¶ 275. The Release
Agreement covered EVMC, “as well as its agents, officers, shareholders, employees,
consultants and attorneys.” DE 374-1 at § 2.2 (emphasis added). Eagle testified as follows with
regard to the consulting agreement with EVMC:
Q. Are you aware that Mr. Reis had a consulting agreement with EVMC personally
separate from his work for Wells Fargo?
A. I’m not sure if I technically knew that, but I knew he had. I mean, he’s the one that
told us about – about how [Esacove] can make things happen.
Q. All right. And are you – were you aware or are you aware that he signed the
Consulting Agreement before he became an employee of Wells Fargo?
A. I’m not really aware of that, no.
Q. Do you know anything about his consulting agreement with EVMC?
A. Not really, no.
Q. Do you know if he had an agreement that he was entitled to be paid certain monies
by EVMC to the extent he successfully introduced them or assisted them in finding
clients who would – who they could provide loans to?
…
[A.] I really didn’t. I wasn’t paying attention. I was paying attention to this stuff. It was
a long, winding road and I thought we were to the end of it.
DE 402-3 at 2.

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Standard of Review
“[R]econsideration of a previous order is an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.” In re Health
Mgmt. Sys. Inc. Sec. Litig., 113 F.Supp.2d 613, 614 (S.D.N.Y. 2000) (citation omitted). “The
provision for reargument is not designed to allow wasteful repetition of arguments already briefed,
considered and decided.” Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y. 1990). “The
major 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.’”
Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18
C. Wright, et al., Federal Practice & Procedure § 4478 at 790). Thus, a request for reconsideration
under Local Rule 6.3 must advance controlling law or factual matters that the movant believes the
Court overlooked in its decision on the underlying matter and that “might reasonably be expected
to alter the conclusion reached by the Court.” See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257
(2d Cir. 1995). “Rule 6.3 is intended to ‘ensure the finality of decisions and to prevent the practice
of a losing party . . . plugging the gaps of a lost motion with additional matters.’” SEC v. Ashbury
Capital Partners, No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001) (quoting
Carolco Pictures, Inc. v. Sirota, 700 F.Supp. 169, 170 (S.D.N.Y.1988)). A court must narrowly
construe and strictly apply Rule 6.3 so as to avoid duplicative rulings on previously considered
issues and to prevent Rule 6.3 from being used either to advance different theories not previously
argued or as a substitute for appealing a final judgment. See Shamis v. Ambassador Factors Corp.,
187 F.R.D. 148, 151 (S.D.N.Y. 1999). Having examined the submissions, plaintiff has not met
this exacting standard.

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Discussion
Plaintiff argues that the Release Agreement does not cover Reis because his independent
consulting agreement with EVMC is missing the essential terms of a valid, enforceable
agreement, and, furthermore, Eagle was unaware of any relationship between Reis and EVMC
that would cover Reis under the language of the Release Agreement. DE 402 at 15-18. Even
supposing that the independent consulting agreement was missing essential terms, Reis would
still be covered under the Release Agreement as an agent of EVMC. “[W]hether an agency
relationship has been created or exists is determined by the relation of the parties as they in fact
exist by agreement or acts …, and the primary right of control is particularly persuasive.” Secci
v. United Independent Taxi Drivers, Inc., 8 Cal. App. 5th 846, 855, 214 Cal. Rptr. 3d 379, 385
(2017). 1 Thus, an agency relationship may still exist between Reis and EVMC even if the
employment contract was missing essential terms and thus unenforceable. Here, it is apparent
that Reis acted as EVMC’s agent since one of Eagle’s own associates attested that Reis would
make any representation EVMC wanted and Eagle knew Reis had a consulting agreement with
EVMC. DE 345-1, ¶ 235; DE 402-3 at 2. Even if Eagle did not know Reis was entitled to
receive commissions from EVMC, it is clear he understood that Reis acted on behalf of EVMC
and was controlled by them. An agent need not be paid by the principal. See United
Independent Taxi Drivers, Inc., 8 Cal. App. 5th at 855 (listing various factors to consider when
determining if an independent contractor is acting as an agent). Thus, even after viewing the
evidence in the light most favorable to Eagle, the record establishes that EVMC had the requisite
level of control over Reis to establish an agency-principal relationship, and that Eagle was aware
of said relationship between Reis and EVMC. As such, Reis was the intended beneficiary of

1

The Release Agreement is governed by California law. See Release Agreement, DE 374-1 at § 3.5.

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the Release Agreement and therefore is covered under the Release Agreement as an agent of
EVMC.
Finally, although plaintiff disputes the Court’s power to decide a dispositive matter through
a pre-motion letter, DE 402 at 18, the Second Circuit has upheld this practice. See In re Best
Payphones, Inc., 450 F. App’x 8, 15 (2d Cir. 2011) (“In this Circuit, district judges have, in some
cases, construed pre-motion letters as the motions themselves and denied the motions.”) (citation
omitted). Any perceived injustice arising from this Court’s dismissal of Eagle’s claims against
Reis without the benefit of full briefing has been remediated through the instant motion for
reconsideration, wherein the Court has carefully considered all of Eagle’s arguments.
CONCLUSION
For the foregoing reasons, the motion for reconsideration is DENIED. The Eagle plaintiffs
are directed to serve a copy of this Memorandum & Order upon Michael Reis and file a certificate
of service forthwith.
Dated: Central Islip, New York
December 6, 2022

/s/ Gary R. Brown
GARY R. BROWN
United States District Judge

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