Brooks v. Macy's, Inc.

Filing 33

MEMORANDUM OPINION AND ORDER based on the present record, plaintiff's motion for reconsideration is denied. My ruling is without prejudice to a renewed application to compel deposition discovery if either side can make a specific showing that a witness's health warrants a deposition to preserve the witness's testimony. SO ORDERED (Signed by Magistrate Judge Henry B. Pitman on 4/8/2011) (jmi)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOSEPH E. BROOKS,

:
Plaintiff,

MACY'S, INC.

10 Civ. 5304 (BSJ)(HBP)

:

-against-

:

MEMORANDUM OPINION
AND ORDER

:
Defendant.

:

-----------------------------------X

PITMAN, United States Magistrate Judge:

By notice of motion dated January 5, 2011 (Docket Item
26), plaintiff moves for reconsideration of my Order dated
December 21, 2010 (Docket Item 23) which granted in part and
denied in part defendant's motion to stay discovery.

Specifi-

cally, my December 21, 2010 Order stayed deposition discovery but
permitted other discovery to proceed.

For the reasons set forth

below, plaintiff's motion is denied.
Motions for reconsideration are appropriate only in
very limited circumstances.

As explained by the Honorable

Michael B. Mukasey, United States District Judge, now retired, in
McMahan & Co. v. Donaldson, Lufkin & Jenrette Sec. Corp., 727 F.
Supp. 833, 833 (S.D.N.Y. 1989):
Motions for reargument "are granted when new facts
come to light or when it appears that controlling
precedents were overlooked." Weissman v. Fruchtman,

658 F. Supp. 547 (S.D.N.Y. 1987). The proponent of
such a motion is not supposed to treat the court's
initial decision as the opening of a dialogue in which
that party may then use [Local Civil Rule 6.3] to
advance new facts and theories in response to the
court's rulings. The purpose of the rule is "to ensure
the finality of decisions and to prevent the practice
of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Lewis v. New York Telephone, No. 83 Civ. 7129,
slip op. at 2, 1986 WL 1441 (S.D.N.Y. 1986) cited in
Carolco Pictures Inc. v. Sirota, 700 F. Supp. 169
(S.D.N.Y. 1988).
See also Mahmud v. Kaufmann, 496 F. Supp.2d 266, 269-70 (S.D.N.Y.
2007).

"A movant for reconsideration bears the heavy burden of

demonstrating that there has been an intervening change of
controlling law, that new evidence has become available, or that
there is a need to correct a clear error or prevent manifest
injustice."

Quinn v. Altria Group, Inc., 07 Civ. 8783

(LTS)(RLE), 2008 WL 3518462 at *1 (S.D.N.Y. Aug. 1, 2008), citing
Virgin Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir. 1992).
"[T]o be entitled to reargument under Local [Civil Rule
6.3, a party] must demonstrate that the Court overlooked controlling decisions or factual matters that were put before the Court
on the underlying motion."

Am. Alliance Ins. Co. v. Eagle Ins.

Co., 163 F.R.D. 211, 213 (S.D.N.Y. 1995), rev'd on other grounds,
92 F.3d 57 (2d Cir. 1996), citing Ameritrust Co. Nat'l Ass'n v.
Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993); Fulani v. Brady, 149
2

F.R.D. 501, 503 (S.D.N.Y. 1993), aff'd sub nom., Fulani v.
Bentsen, 35 F.3d 49 (2d Cir. 1994); E. Coast Novelty Co. v. City
of New York, 141 F.R.D. 245, 245 (S.D.N.Y. 1992); B.N.E. Swedbank, S.A. v. Banker, 791 F. Supp. 1002, 1008 (S.D.N.Y. 1992);
Novak v. Nat'l Broad. Co., 760 F. Supp. 47, 48 (S.D.N.Y. 1991);
Ashley Meadows Farm, Inc. v. Am. Horse Shows Ass'n, 624 F. Supp.
856, 857 (S.D.N.Y. 1985).

Thus, "a party in its motion for

reargument 'may not advance new facts, issues or arguments not
previously presented to the court.'"

In re Integrated Res. Real

Estate Ltd. P'ships Sec. Litig., 850 F. Supp. 1105, 1151
(S.D.N.Y. 1994), quoting Litton Indus., Inc. v. Lehman Bros. Kuhn
Loeb, Inc., 86 Civ. 6447 (JMC), 1989 WL 162315 at *4 (S.D.N.Y.
Aug. 4, 1989), rev'd on other grounds, 967 F.2d 742 (2d Cir.
1992); accord Caribbean Trading & Fid. Corp. v. Nigerian Nat'l
Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991); see also
Woodard v. Hardenfelder, 845 F. Supp. 960, 966 (E.D.N.Y. 1994).
"These limitations serve to ensure finality and to prevent losing
parties from using motions for reconsideration as a vehicle by
which they may then plug the gaps of a lost motion with additional matters."

In re City of New York, as Owner and Operator

of M/V Andrew J. Barberi, CV-03-6049 (ERK)(VVP), 2008 WL 1734236
at *1 (E.D.N.Y. Apr. 10, 2008), citing Zoll v. Jordache Enter.
Inc., 01 Civ. 1339 (CSH), 2003 WL 1964054 at *2 (S.D.N.Y. Apr.
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24, 2003); Cohn v. Metropolitan Life Ins., Co., 07 Civ. 0928
(HB), 2007 WL 2710393 at *1 (S.D.N.Y. Sept. 7, 2007); In re
Rezulin Prods. Liab. Litig., 224 F.R.D. 346, 349 (S.D.N.Y. 2004);
Horsehead Res. Dev. Co., Inc. v. B.U.S. Envtl. Serv., Inc ., 928
F. Supp. 287, 289 (S.D.N.Y. 1996).
Because an application to stay discovery pending the
resolution of a dispositive motion is addressed to the court's
discretion, see Anthracite Capital Bofa Funding, LLC v. Knutson,
09 Civ. 1603 (LTS)(KNF), 2009 WL 4496050 at *2 (S.D.N.Y. Dec. 3,
2009) (Swain, D.J.), there will rarely be controlling facts or
precedents that would warrant reconsideration, and plaintiff
cites no such controlling facts or precedents here.

The only

issue raised by plaintiff that warrants comment is his contention
that certain witnesses are of advanced age and that their testimony may be lost if their depositions are deferred for a substantial period of time.1

Although it is, no doubt, true that pres-

ervation of testimony is more of a consideration with older
witnesses, plaintiff does not make any specific showing here that
any of the witnesses suffers from a condition that warrants a

1

Defendant correctly notes that this contention was not
raised by plaintiff in his original opposition to the motion to
stay discovery.
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deposition to preserve his or her testimony.2

I do not believe

there is any basis to assume that any of the witnesses in this
matter face a substantial and proximate risk of losing the
ability to testify.
Accordingly, based on the present record, plaintiff's
motion for reconsideration is denied.

My ruling is without

prejudice to a renewed application to compel deposition discovery
if either side can make a specific showing that a witness's
health warrants a deposition to preserve the witness's testimony.
Dated:

New York, New York
April 8, 2011

SO ORDERED

HENRY ITMAN
United States Magistrate Judge
Copies transmitted to:
Danielle C. Lesser, Esq.
Howard S. Wolfson, Esq.
Wendy M. Fiel, Esq.
Morrison Cohen LLP
909 Third Avenue
New York, New York 10022-4784

2The absence of this evidence of such evidence may be the
result of Local Rule 6.3 which prohibits the submission of
affidavits in connection with motions for reconsideration.
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James R. Williams, Esq.

Michael D. Jacobster, Esq.

Ravindra K. Shaw, Esq.

Jackson Lewis LLP

666 Third Avenue

New York, New York 10017

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