Rizzo v. Globalfoundries, Inc. et al

Filing 219

DECISION AND ORDER denying 182 Motion to Reconsider; granting 187 Motion to Withdraw as Attorney; denying 198 Motion to Strike: The Court hereby ORDERS that Plaintiff's motion to reconsider (Dkt. No. 182) is DENIED; and the Court further ORDERS that Defendants' request to strike (Dkt. No. 198) is DENIED as moot; and the Court further ORDERS that the motion to withdraw (Dkt. No. 187) is GRANTED; and the Court further ORDERS that the Clerk of the Court shall terminate Gregory Mil ls as counsel of record for Plaintiff; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 5/2/2018. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TIMOTHY J. RIZZO,
Plaintiff,
vs.

6:15-cv-557
(MAD/ATB)

APPLIED MATERIALS, INC., and
GLOBALFOUNDRIES, U.S., INC.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

TIMOTHY J. RIZZO
272 County Highway 107
Johnstown, New York 12095
Plaintiff, pro se
THE MILLS LAW FIRM
1520 Crescent Road, Suite 100
Clifton Park, New York 12065
Attorney for Plaintiff

GREGORY MILLS, ESQ.

LEWIS, BRISBOIS LAW FIRM
New York Office
77 Water Street, Suite 2100
New York, New York 10005
Attorneys for Defendant
Applied Materials, Inc.

BERJ K. PARSEGHIAN, ESQ.
PHILIP J. O'ROURKE, ESQ.

JONES DAY LAW FIRM
New York Office
222 East 41st Street
New York, New York 10017
Attorneys for Defendant
Globalfoundries, U.S., Inc.

ERIC P. STEPHENS, ESQ.
SHARYL A. REISMAN, ESQ.
TRACI L. LOVITT, ESQ.

Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER

I. BACKGROUND1
On April 30, 2015, Plaintiff Timothy J. Rizzo filed a complaint in the Northern District of
New York against Defendants Globalfoundries USA, Inc. and Applied Materials, Inc.
("Defendants"), pursuant to 28 U.S.C. § 1332(a), alleging that Defendants' chemicals and conduct
caused him to develop granulomatosis with polyangiitis ("GPA"). See Dkt. No. 1. Plaintiff filed
an amended complaint on July 29, 2015. See Dkt. No. 35. On September 1, 2015, Magistrate
Judge Baxter ordered the parties to engage in phased discovery, with phase I addressing the
general causation of Plaintiff's GPA. See Dkt. No. 56.
On December 20, 2016, Plaintiff moved for leave to file a second amended complaint. See
Dkt. No. 158. The proposed second amended complaint would have alleged additional chemicals
that could have caused GPA and moved the beginning of the exposure period from 2012 back to
2011. See Dkt. No. 158-4 at 1. The next day, Defendants filed a joint motion for summary
judgment on the grounds that Plaintiff would be unable to establish general causation. See Dkt.
No. 162. On September 11, 2017, this Court issued a Memorandum-Decision and Order (the
"September Order") denying Plaintiff's motion for leave to file a second amended complaint and
granting Defendants' motion for summary judgment. See Dkt. No. 176. On October 11, 2017,
Plaintiff filed a motion to reargue, renew, and amend. See Dkt. No. 182. Defendants have filed a
joint request to strike Plaintiff's reply memorandum. See Dkt. No. 198.
On October 23, 2017, Plaintiff's attorney moved to withdraw as counsel. See Dkt. No.
187. Mr. Mills discussed the end of his service with Plaintiff on September 24, 2017. See id. at ¶
6. Mr. Mills states in a sworn affidavit that his retainer agreement with Plaintiff was limited to

The Court presumes the parties' familiarity with the facts of this case. A thorough
account of the facts and pertinent expert opinions can be found in this Court's September 11, 2017
Memorandum-Decision and Order. See Dkt. No. 176 at 2-34.
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general causation proceedings, up to and including opposing any motions for summary judgment
brought by Defendants. See Dkt. No. 187-1 at ¶¶ 3-4. Defendants do not oppose allowing Mr.
Mills to withdraw. See Dkt. No. 198.
Currently before the Court is Plaintiff's motion to reargue, renew, and amend; Defendants'
motion to strike; and Plaintiff's counsel's motion to withdraw.
II. DISCUSSION
A.

Standard of Review
"[I]n a pro se case, the court must view the submissions by a more lenient standard than

that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). "Indeed, the Second Circuit has stated that '[i]mplicit in the right to self-representation
is an obligation on the part of the court to make reasonable allowances to protect pro se litigants
from inadvertent forfeiture of important rights because of their lack of legal training.'" Govan,
289 F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
"'In order to prevail on a motion for reconsideration, the movant must satisfy stringent
requirements.'" Juliano v. DeAngelis, No. 06-CV-1139, 2007 WL 2454216, *1 (N.D.N.Y. Aug.
23, 2007) (quoting C–TC 9th Ave. P'ship v. Norton Co., 182 B.R. 1, 2 (N.D.N.Y. 1995)). A
motion for 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." Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995). "The prevailing rule 'recognizes only three possible
grounds upon which motions for reconsideration may be granted; they are (1) an intervening
change in controlling law, (2) the availability of new evidence not previously available, or (3) the
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need to correct a clear error of law or prevent manifest injustice.'" Maye, 2011 WL 4566290, at
*2 (quoting In re C–TC 9th Ave. P'ship, 182 B.R. at 3). "[A] motion to reconsider should not be
granted where the moving party seeks solely to relitigate an issue already decided." Shrader, 70
F.3d at 257. Reconsideration is not a "vehicle[] for bringing before the court theories or
arguments that were not advanced earlier. Nor may the motion present evidence which was
available but not offered at the original [motion]." In re C–TC 9th Ave. P'ship, 182 B.R. at 3
(quotation omitted).
B.

Analysis
Plaintiff makes eleven arguments why the Court should reconsider the September Order.

Given Plaintiff's pro se status, the Court interprets his motion to reargue, renew, and amend as a
motion pursuant to Fed. R. Civ. P 60(b) to vacate summary judgment and a motion pursuant to
Fed. R. Civ. P. 54(b) to reconsider Plaintiff's motion for leave to amend.
First, Plaintiff claims that the list of chemicals that Defendants provided during discovery
was fraudulent. See Dkt. No. 182 at 2-3. However, Plaintiff fails to support his allegation that
the chemical list provided by Defendants was "fake." Mere conclusory allegation are insufficient
to grant a motion to reconsider. See Nederlandsche Handel-Maatschappij, N. V. v. Jay Emm,
Inc., 301 F.2d 114, 115 (2d Cir. 1962); see also Di Vito v. Fid. & Deposit Co. of Md., 361 F.2d
936, 939 (7th Cir. 1966) (holding that "averments of the existence of fraud made on information
and belief and unaccompanied by a statement of clear and convincing probative facts which
support such belief do not serve to raise the issue of the existence of fraud"). As such, the
conclusory allegation of a "fake" list is insufficient to meet Plaintiff's burden.
Plaintiff also argues that Defendants only provided a list of the chemicals used from May
2012 to December 2012. See Dkt. No. 182 at 2-3. Plaintiff, however, claims that he was
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employed at the site from July 6, 2009 through January 31, 2013. See id. The Amended
Complaint, however, specifically alleged that the harmful exposure occurred between May 2012
and August 2012. See Dkt No. 35 at ¶ 53. Therefore, Defendants were not required to produce
during discovery evidence beyond the period alleged. Because the Court already denied Plaintiff
leave to file a second amended complaint in order to expand the exposure period, the Court also
interprets Plaintiff's first argument as a motion to reconsider Plaintiff's motion for leave to amend.
However, as Plaintiff has not provided a justification that satisfies any of the three grounds under
which the Court may grant a motion to reconsider, the Court will not reconsider its decision to
deny Plaintiff leave to amend his complaint.
Plaintiff's next three arguments all contend that the Court did not consider evidence that
Plaintiff was exposed to hazardous chemicals. See Dkt. No. 182 at 4-9. However, the issue
underlying the September Order was whether Plaintiff could satisfy the general causation
requirement. See Dkt. No. 176 at 32. This inquiry simply requires the Court to determine
whether any chemicals that Plaintiff claims he was exposed to could have caused his
disorder—whether he was actually exposed is an entirely separate inquiry. See Green v.
McAllister Bros., Nos. 02 Civ. 7588, 03 Civ. 1482, 2005 WL 742624, *11 (S.D.N.Y. Mar. 25,
2005) (citation omitted). As these three arguments only assert that Plaintiff was exposed to
chemicals, they do not speak to general causation and are outside of the scope of the September
Order.
Plaintiff then makes four arguments that present Plaintiff's lay interpretation of scientific
studies, challenge the credibility of Defendants' experts, and contest the Court's use of scientific
literature in the September Order. See Dkt. No. 182 at 11-22. These merely represent arguments

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that the Court considered and rejected in the September Order and do not set forth any grounds
for reconsideration.
Plaintiff then cites two decisions that he believes are indicative of errors in the September
Order. First, Plaintiff cites to a decision by the Department of Veterans Affairs suggesting a
possible link between chemical exposure and Plaintiff's health conditions. See Dkt. No. 182 at
22; Dkt. No. 182-7 at 2. However, Plaintiff admits that this case was not previously presented to
the Court. See Dkt. No. 182 at 22. Further, the opinion is an administrative decision dealing with
veteran compensation, not civil liability, and, therefore, it is not controlling law, it involved a
different standard of proof, and was not limited by Daubert. As such, the fact that this decision
was not addressed in the September Order is not grounds for reconsideration.
Second, Plaintiff suggests that Sica v. DiNapoli, 141 A.D.3d 799 (3d Dep't 2016), rev'd
sub nom. Kelly v. DiNapoli, 30 N.Y.3d 674 (2018), supports his position. See Dkt. No. 182 at 2324. Sica, however, only defined the term "accident" under N.Y. Retire. & Soc. Sec. Law § 363
and the panel explicitly declined "to address . . . the issue of causation." Sica, 141 A.D.3d at 801.
As such, Sica is not material to the case at hand.
Finally, Plaintiff argues that he should be entitled to punitive damages. Determining the
amount and type of damages that Plaintiff could recover is an entirely separate question from
general causation. Thus, this argument is outside the scope of the September Order.
Given that none of Plaintiff's arguments establish grounds for reconsideration, Plaintiff's
motion is denied. Further, as Plaintiff's motion is denied, Defendants' request to strike is denied
as moot. Finally, having reviewed the motion to withdraw, the Court finds that it is in compliance
with Local Rule 83.2 and good cause exists to grant the motion.
III. CONCLUSION
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After carefully reviewing the complaint in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion to reconsider (Dkt. No. 182) is DENIED; and the Court
further
ORDERS that Defendants' request to strike (Dkt. No. 198) is DENIED as moot; and the
Court further
ORDERS that the motion to withdraw (Dkt. No. 187) is GRANTED; and the Court
further
ORDERS that the Clerk of the Court shall terminate Gregory Mills as counsel of record
for Plaintiff; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: May 2, 2018
Albany, New York

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