The United States of America for the use and benefit of Galvin Bros., Inc. v. Fidelity and Deposit Company of Maryland

Filing 27

MEMORANDUM & ORDER: GRANTING the 24 Motion for Reconsideration and this Order shall modify and amend the Court's September 2015 Order. The 23 Clerk's Judgment entered in this case is VACATED and the Clerk of the Court is directed to tra nsfer this case pursuant to 28 U.S.C. Section 1406(a) to the United States District Court for the District of Massachusetts. The Clerk of Court is further directed to send a copy of this Order, the Court's September 2015 Order, and any original documents filed in this action to the Clerk of the Court for the United States District Court for the District of Massachusetts. Case extracted and electronically transferred to District of Massachusetts. ALL FILINGS ARE TO BE MADE IN THE TRANSFER COURT, DO NOT DOCKET TO THIS CASE. Ordered by Judge Joanna Seybert on 10/14/2015. cm by cm/ecf. (Mahon, Cinthia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
THE UNITED STATES OF AMERICA FOR THE
USE AND BENEFIT OF GALVIN BROS., INC.,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-6051(JS)(SIL)

FIDELITY AND DEPOSIT COMPANY OF
MARYLAND,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Robert J. Fryman, Esq.
Westerman Sheehy Keenan
Samaan & Aydelott LLP
The Omni Building
333 Earle Ovington Boulevard
Uniondale, NY 11553
For Defendants:

Timothy B. Froessel, Esq.
Holland & Knight LLP
31 West 52nd Street, 12th Floor
New York, New York 10019

SEYBERT, District Judge:
Pending before the Court is Plaintiff Galvin Bros.,
Inc.’s

(“Galvin”)

letter/motion

(Docket

Entry

24)

seeking

reconsideration of the Court’s September 30, 2015 Memorandum and
Order (the “September 2015 Order”) dismissing this action without
prejudice for improper venue pursuant to Federal Rule of Civil
Procedure
reconsider

12(b)(3).
the

Court’s

Galvin

specifically

decision

to

asks

dismiss

the

the

Court

case

to

without

prejudice instead of transferring it to the United States District
Court for the District of Massachusetts.

For the following

reasons, Galvin’s motion is GRANTED and this Order shall modify
and amend the Court’s September 2015 Order.
BACKGROUND
The Court assumes familiarity with the facts of this
case, which are discussed in more detail within the Court’s
September 2015 Order.

Briefly, the Court dismissed this case

without prejudice on September 30, 2015, finding that the contract
governing the dispute contained a valid forum selection clause
placing venue in Boston, Massachusetts.
Docket Entry 22, at 10-11.)

(September 2015 Order,

The forum selection clause did not

require the parties to resolve their disputes in federal court,
and expressly contemplated the possibility that the case would be
arbitrated. (See September 2015 Order at 10-11.) For that reason,
the

Court

dismissed

the

case

without

prejudice

instead

of

transferring it. The Court reasoned that “it would be presumptuous
to assume that the only available venue for this action is the
United States District Court for the District of Massachusetts.”
(September 2015 Order at 11.)

Galvin now moves the Court to

reconsider its decision to dismiss the case and asks the Court to
transfer the dispute to the District of Massachusetts instead.
(Pl.’s Ltr., Docket Entry 24, at 1.) Galvin argues that dismissing
the case without prejudice would have the unintended consequence
of rendering Galvin’s Miller Act claim barred by the one-year
statute of limitations.

(Pl.’s Ltr. at 1.)

2

DISCUSSION
I.

Legal Standard
Motions for reconsideration may be brought pursuant to

Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure and
Local Rule 6.3.

See Wilson v. Pessah, No. 05-CV-3143, 2007 WL

812999,

(E.D.N.Y.

at

*2

Mar.

14,

2007).

A

motion

for

reconsideration is appropriate when the moving party believes the
Court overlooked important “matters or controlling decisions” that
would have influenced the prior decision.
Factors

Corp.,

187

F.R.D.

148,

151

Shamis v. Ambassador
(S.D.N.Y.

1999).

Reconsideration is not a proper tool to repackage and relitigate
arguments and issues already considered by the Court in deciding
the original motion.

See United States v. Gross, No. 98-CR-0159,

2002 WL 32096592, at *4 (E.D.N.Y. Dec. 5, 2002) (“A party may not
use a motion to reconsider as an opportunity to reargue the same
points raised previously.”).
arguments and issues.

Nor is it proper to raise new

See Lehmuller v. Inc. Vill. of Sag Harbor,

982 F. Supp. 132, 135 (E.D.N.Y. 1997).

Reconsideration may only

be granted when the Court did not evaluate decisions or data that
might reasonably be expected to alter the conclusion reached by
the Court.

Wechsler v. Hunt Health Sys., 186 F. Supp. 2d 402, 410

(S.D.N.Y. 2002).

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II. Galvin’s Motion
Galvin argues that the Court’s decision to dismiss this
case without prejudice, rather than transfer it to federal court
in

Boston,

barring

Massachusetts,

Galvin’s

lawsuit

had

the

because

limitations for Miller Act claims.

unintended

of

the

consequence

one-year

statute

(Pl.’s Ltr. at 1.)

of
of

Galvin

therefore asks the Court to transfer the lawsuit to the United
States District Court for the District of Massechussets.
The

Second

Circuit

has

held

that

“[a]

‘compelling

reason’ for transfer is generally acknowledged when a plaintiff’s
case, if dismissed, would be time-barred on refiling in the proper
forum.”

Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 435

(2d Cir. 2005) (quoting Phillips v. Seiter, 173 F.3d 609, 610 (7th
Cir. 1999)).

Defendant Fidelity and Deposit Company of Maryland

(“Fidelity”) argues that transferring the case would reward Galvin
for filing a case in the wrong forum, because Galvin “took a
calculated course of action to avoid a contractual clause, and
lost that gamble.” (Def.’s Ltr., Docket Entry 25, at 2.)

But far

from being rewarded, Galvin has already suffered a significant
delay in having this case adjudicated on the merits because of its
failure to file suit in the contractual forum.

Moreover, as

discussed in the Court’s September 2015 Order, Boston is not a
particularly convenient forum for Galvin.
Order at 7-8.)

(See September 2015

Galvin timely filed this case in New York and it

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should not be barred from resolving its dispute with Fidelity on
the merits simply because it chose the wrong forum to initiate the
lawsuit.

See McDermott v. Semolic, No. 06-CV-3235, 2006 WL

3050877, at *3 (E.D.N.Y. Oct. 20, 2006).

Therefore, there is a

compelling reason to transfer this case, which the Court did not
previously consider.
CONCLUSION
For

the

foregoing

reasons,

Defendant’s

motion

for

reconsideration (Docket Entry 24) is GRANTED and this Order shall
modify and amend the Court’s September 2015 Order.

The Judgment

entered in this case (Docket Entry 23) is VACATED and the Clerk of
the Court is directed to transfer this case pursuant to 28 U.S.C.
§ 1406(a) to the United States District Court for the District of
Massachusetts.

The Clerk of that Court is further directed to

send a copy of this Order, the Court’s September 2015 Order, and
any original documents filed in this action to the Clerk of the
Court for the United States District Court for the District of
Massachusetts.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

October
14 , 2015
Central Islip, New York

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