Frey et al v. Bekins Van Lines, Inc. et al
ORDER denying 103 Motion for Reconsideration. For the foregoing reasons, the plaintiffs' motion for reconsideration is denied. The Clerk of the Court is directed to terminate the motion appearing at Docket Entry Number 103 in this matter. So Ordered.. Ordered by Judge Leonard D. Wexler on 7/5/2012. (Padilla, Kristin) (Main Document 115 replaced on 7/6/2012) (Padilla, Kristin).
US DISTRICT COURT E.O N y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MELINDA FREY and YAJAIRA RUIZ MERCEDES,
Individually and on behalf of all other persons
LONG ISLAND OFFICE
JUL 05 2012
-againstBEKINS VAN LINES, INC. TRIPLE CROWN
MAFUCCI STORAGE CORP., TRIPLE CROWN
MOVING & STORAGE, INC., JUDD LEVINE,
PAUL LEVINE and JOHN DOES #1-10,
JOINTLY and SEVERALLY,
LEEDS MORELLI & BROWN, P.C.
BY: JEFFREY K. BROWN, ESQ.
Attorneys for Plaintiff
One Old Country Road, Suite 347
Carle Place, NY 11514
THE CULLEN LAW FIRM
BY: JOSEPH A. BLACK, ESQ.
DANIEL E. COHEN, ESQ.
Attorneys for Plaintiffs
110 I 30th Street, N. W. Suite 300
Washington, D.C. 20007
GOTTLIEB & ASSOCIATES
BY: JEFFERY M. GOTTLIEB, ESQ.
Attorneys for Plaintiffs
!50 East 18th Street Suite PHR
New York, New York 10003
BARRY N. GUTTERMAN & ASSOCIATES, P.C.
BY: BARRY N. GUTTERMAN, ESQ.
Attorneys for Defendant Triple Crown Mafucci Storage Corp.,
Triple Crown Moving & Storage, Inc., Judd Levine, Paul Levine
85 Davids Way
Bedford Hills, New York I 0507
DOMBROFF GILMORE JACQUES & FRENCH
BY: KAREN M. BERBERICH, ESQ.
Attorneys for Defendants Bekins Van Lines, LLC
40 Broad Street Suite 70 I
New York, New York I 0004-2382
WEXLER, District Judge
This action, commenced by three Plaintiffs, originally alleged both federal and state causes
of action arising out of the Plaintiffs' shipment of household goods by the Defendant companies.
One Plaintiff has settled her claim with Defendants. The remaining two seek to pursue claims on
behalf of themselves and a class of individuals alleged to be similarly situated.
Plaintiffs claim, inter alia, that Defendants are engaged in a pattern and practice of quoting
lower shipping prices than those ultimately charged- a practice referred to as "low-balling"
estimates- with the intent of charging higher amounts. Plaintiffs' complaint rests on allegations
arising out of price quotes based upon estimated weight of shipped goods, as opposed to weights
ultimately billed. It is alleged that Defendants charged fees based upon false weights arbitrarily
assigned to shipments so as to increase prices.
Defendants have previously moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, to dismiss the complaint. In the context of that motion, Defendants argued that
Plaintiffs' state law claims were preempted by a broad theory of field preemption, as well as by a
specific statutory provision. In a Memorandum and Order dated October 25, 20 I 0, this court
rejected the preemption arguments raised. Frey v. Bekins Van Lines, Inc., 748 F. Supp.2d 176
(E.D.N.Y. 2010). Thereafter, this court ruled on Defendants' motion, pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. In an Memorandum and Order dated August 9, 20 II, this court
granted the motion, holding that "state laws with respect to fraud, negligence, unjust enrichment
and consumer protection" were preempted by 49 U.S.C. § 14501(c)(l). Frey v. Bekins Van Lines,
Inc., 802 F. Supp.2d 438,443 (E.D.N.Y. 2011). The court therefore dismissed Plaintiffs' fifth
through eleventh causes of action which alleged various state law claims including fraud,
negligence, unjust enrichment and the violation of state consumer protection laws. !d.
In a Memorandum and Opinion dated April2, 2012, this court denied Plaintiffs' motion to
certify a class to pursue those claims that remain, under Rule 23(b)(3) of the Federal Rules of Civil
Procedure. Frey v. Bekins Van Lines. Inc., 2012 WL 1107719 (E.D.N.Y. 2012). Presently before
the court is a motion to reconsider the denial of class action status.
DISPOSITION OF THE MOTION
Motions for reconsideration are properly granted only if there is a showing of: (l) an
intervening change in controlling law; (2) the availability of new evidence or (3) a need to correct a
clear error or prevent manifest injustice. Virgin Atlantic Airways. Ltd. v. National Mediation Board,
956 F.2d 1245, 1255 (2d Cir. 1992); Almonte v. City of Long Beach, 2005 WL 1971014 *l
(E.D.N.Y. 2005). "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 has overlooked .... " Nowacki v. Closson, 2001 WL 175239 * l (N.D.N.Y. 2001),
quoting, Shrader v. CSX Transportation. Inc., 70 F.3d 255, 256-57 (2d Cir. 1995). The burden on the
movant is high to ensure finality in decisions, discourage repetitive arguments and to prevent a losing
party from rearguing a decision after examination in an attempt to correct prior inadequacies. See id.;
see also Altamonte, 2005 WL 1971 014 at *I. The party seeking reconsideration may not "advance
new facts, issues or arguments not previously presented to the Court." Altamonte, 2005 WL 1971014
at *I (quoting Morse/Diesel. Inc. v. Fidelity & Deposit Co. of Maryland, 768 F. Supp. 115, 116
The Motion for Reconsideration is Denied
When denying the motion for class certification the court held that common issues neither
predominated nor rendered a class action superior or manageable. In particular, the court focused
on the allegations regard the accuracy of weight tickets. The court held that Plaintiffs made an
"impermissible leap" from the existence of a policy of inaccuracy to the management of a class
action. The court noted that each member of the proposed class would be subject to a variety of
defenses and issues arising therefrom explaining why the ultimate amounts billed differed from the
estimates. While acknowledging that the individual Plaintiffs might be able to prove their claims,
the court noted that this did not mean that they could prove a broad policy, uniformly adhered to,
entitling each and every shipper to recoup the entire amount billed over what was clearly an
Plaintiffs argue that reconsideration is warranted to correct clear error. Specifically,
Plaintiffs argue that this court misunderstood Plaintiffs' proposed class definition. The court has
reviewed the motion papers and found no such error. To the contrary, this court adheres to its
decision that the predominance of individual issues requires denial of class certification. Plaintiff
also argues, in the alternative, that the court should certify a class to provide for injunctive relief.
Bekins argues that injunctive relief is moot because it is no longer in the business of transporting
household goods- a factual assertion that Plaintiffs assert is untrue. The court denies any motion
for injunction relief at this time, without prejudice to renewal after trial of this matter which is
scheduled for September 17,2012.
For the foregoing reasons, Plaintiffs' motion for reconsideration is denied. The Clerk of
the Court is directed to terminate the motion appearing at Docket entry number I 03 in this
UNITED STATES DISTRICT JUDGE
Central Islip, New York
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