Complexions, Inc. v. Industry Outfitters, Inc.

Filing 86

MEMORANDUM-DECISION AND ORDER denying 80 Motion for Reconsideration: ORDERED that third-party plaintiff's motion to reconsider and clarify the Court's prior Order [Dkt #80] is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 10/20/11. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
COMPLEXIONS, INC. d/b/a
COMPLEXIONS DAY SPA,
Plaintiff,
vs.

1:09-CV-1402
(MAD/DRH)

INDUSTRY OUTFITTERS, INC., a corporation
formed under the laws of the State of Florida,
Defendant,
and
INDUSTRY OUTFITTERS, INC., a corporation
formed under the laws of Canada,
Defendant,
and
GREENBANK CUSTOM WOODWORKING, LTD.,
Defendant.
____________________________________________
GREENBANK CUSTOM WOODWORKING, LTD.,
Third-Party Plaintiff,
vs.
ZYTEK, INC.,
Third-Party Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

BREAKELL LAW FIRM, P.C.
10 Airline Drive
Albany, New York 12205
Attorneys for Plaintiff

Paul C. Marthy, Esq.
Walter G. Breakell, Esq.

LeCLAIR RYAN
830 Third Avenue
5th Floor
New York, New York 10022
Attorneys for Defendant
Industry Outfitters, Inc.

Jeffrey M. Zalkin, Esq.

TOMASELLI LAW OFFICES
P.O. Box 97
Poestenkill, New York 12140
Attorneys for Defendant/Third
Party Plaintiff
Greenbank Custom Woodworking, Ltd.

Patrick J. Tomaselli, Esq.

GIBSON, McASKILL LAW FIRM
69 Delaware Avenue
Suite 900, Chemical Bank Building
Buffalo, New York 14202
Attorneys for Third Party Defendant
Zytek, Inc.

Victor Oliveri, Esq.

Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Complexions, Inc. d/b/a Complexions Day Spa (“Complexions” or “plaintiff”)
commenced this action against defendants Industry Outfitters, Inc. of Florida and Canada
(“Industry Outfitters”) and Greenbank Custom Woodworking, Ltd. (“Greenbank” or “third-party
plaintiff”) for breach of contract and breach of warranty. Greenbank commenced a third-party
action against Zytek, Inc., (“Zytek” or “third-party defendant”) alleging breach of warranty,
breach of contract and seeking indemnification.
Presently before the Court is Greenbank’s motion pursuant to Fed. R. Civ. P. 60 and Local
Rule 7.1(g) for reconsideration (Dkt. No. 80) of a portion of this Court’s August 9, 2011
Memorandum-Decision and Order. (Dkt. No. 79). Specifically, Greenbank seeks an
amendment/clarification of the prior Order allowing Greenbank to obtain additional jurisdictional
discovery from Third-Party Defendant, Zytek. Zytek has opposed the motion. (Dkt. No. 81).
2

Familiarity with the facts of this case is assumed based on this Court’s previous
Memorandum-Decision and Order (“MDO”). Complexions, Inc. v. Industry Outfitters, Inc., 09CV-1402, Dkt. No. 79 (Aug. 9, 2011). The factual background of the present action was fully set
forth in the Court’s prior Memorandum-Decision and Order and will not be repeated herein. On
Zytek’s prior motion to dismiss, Greenbank opposed the motion and requested jurisdictional
discovery of Zytek revenue records. With regard to this issue, the Court held:
Whether to permit discovery or to resolve the jurisdictional issue is for
this court to decide. Marine Midland Bank, 664 F.2d at 904. In the
Second Circuit, district courts have allowed jurisdictional discovery
where a plaintiff has made less than a prima facie showing but has
demonstrated “a sufficient start toward establishing personal
jurisdiction.”. Hollenbeck v. Comeq, Inc., 2007 WL 2484299, at *2
(N.D.N.Y. 2007); see also Drake v. Lab. Corp. of Am. Holdings, 2007
WL 776818, at *9 (E.D.N.Y. 2007) (citing Aerotel, Ltd. v. Sprint
Corp., 100 F.Supp.2d 189, 194 (S.D.N.Y. 2000) (denying motion to
dismiss to permit plaintiff to take jurisdictional discovery despite
plaintiff's “conclusory” allegations)).
Presently, there is not enough evidence in the record to conclude that
it would be appropriate to exercise jurisdiction over third-party
defendant. Specifically, there is a dearth of information regarding
third-party’s business relationships with New York. Moreover, there
is insufficient evidence regarding the revenue that Zytek derived from
commerce within Canada and outside Canada. See Traver, 233
F.Supp.2d at (the plaintiff was permitted to serve interrogatories upon
the defendant regarding the subject sale and contract and for financial
statements from 1998 to present). The 2007-2008 figure provided in
Schock’s affidavit does not indicate what percentage of Zytek’s sales
were to countries other than the United States.
“[S]ection
302(a)(3)(ii) does not require that the substantial revenue from
international commerce be linked to New York or the United States.”.
Traver, 233 F.Supp.2d at 413 (“this prong is intended to preclude the
exercise of personal jurisdiction over non-domiciliaries ‘whose
business operations are of a local character.’”) (citing inter alia
Bensusan Rest. Corp. v. King, 126 F.3d 25, 29 (2d Cir. 1997)).
Plaintiff’s complaint was filed in 2009 and the third-party complaint
was filed in 2010. Thus, the Court finds it necessary to consider thirdparty defendant’s revenues from 2008 (the time of the transaction)
until 2010 (the date of the filing of the third-party complaint). See id.
at 414.
3

Accordingly, third-party defendant’s motion for dismissal pursuant to
Rule 12(b)(2) is denied with leave to renew upon completion of
jurisdictional discovery including whether personal jurisdiction over
third-party defendant would comport with due process.
Greenbank argues that the aforementioned time frame, “is insufficient as Third-Party
Defendant had sold its assets to another company and effectively ceased doing business in
September 2008". Therefore, Greenbank argues that the Court should reconsider it’s prior ruling
and permit Greenbank to obtain additional jurisdictional discovery for a period of two years prior
to the sale of the glue at issue (2006 through 2008). Zytek opposes the motion and argues that
Greenbank failed to identify any clerical mistake or oversight as required by Rule 60.
Greenbank seeks relief based upon Rule 60 but fails to specify whether the motion is
based upon 60(a) or 60(b). “[A] motion to reconsider should not be granted where the moving
party seeks solely to relitigate an issue already decided”. Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir.1995).
Rule 60(a) of the Federal Rules of Civil Procedure provides:
Corrections Based on Clerical Mistakes; Oversights and Omissions.
The court may correct a clerical mistake or a mistake arising from
oversight or omission whenever one is found in a judgment, order, or
other part of the record. The court may do so on motion or on its own,
with or without notice.
Rule 60(b) provides that, upon a motion and just terms, the court may relieve a party from
a final judgment, order or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence ...;
(3) fraud ... misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged ... or
(6) any other reason justifying relief from the operation of the judgment.

4

Greenbank fails to cite to any caselaw or authority for the relief sought herein and has not
met the burden of establishing that they are entitled to any relief under Rule 60. Disagreement
with this Court's ruling is not the basis for reconsideration. See Concerned Citizens of
Chappaqua v. U.S. Dep't of Transp., 2009 WL 1158966, at *2 (S.D.N.Y. 2009). Nothing in
Greenbank's motion papers establish extraordinary circumstances warranting relief under Rule 60.
Accordingly, Greenbank’s request to reconsider is DENIED.
CONCLUSION
Accordingly, it is hereby
ORDERED, that third-party plaintiff’s motion to reconsider and clarify the Court’s prior
Order (Dkt. No. 80) is DENIED.
IT IS SO ORDERED.
Dated: October 20, 2011

5