Schoolcraft v. The City Of New York et al
Filing
267
OPINION #104610. Based on the reasoning set forth in this Opinion, Defendant's motion for reconsideration is denied. It is so ordered. (Signed by Judge Robert W. Sweet on 7/30/2014) (rjm) Modified on 8/14/2014 (ca).
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----------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------x
ADRIAN SCHOOLCRAFT,
Plaintiff,
- against -
10 Civ.
6005 (RWS)
OPINION
CITY OF NEW YORK, et al.,
Defendants.
----------------------------------------x
A P P E A R A N C E S:
Attorneys for the Plaintiff
LAW OFFICE OF NATHANIEL B. SMITH
111 Broadway
Suite 1305
New York, NY 10006
By:
Nathaniel B. Smith, Esq.
l
Attorneys for the City Defendants
MICHAEL A. CARDOZO
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
By:
Ryan G. Shaffer, Esq.
·-
Sweet, D.J.
Defendant
Defendants")
City
of
has written a
New
York
(the
"City"
or
"City
letter moving for reconsideration of
certain rulings made by this Court in a May 28, 2014 hearing (the
"May 28
Hearing")
for City Defendants'
motion for a protective
order pursuant to Local Civil Rule 6.3. For the reasons set forth
below, the City's motion is denied.
Prior Proceedings
A detailed
recitation
of
the
facts
of
the
case
is
provided in this Court's opinion dated May 6, 2011. See Schoolcraft
v . City of N . Y . ,
May 6, 2011).
The
1 0 Ci v .
6005 ,
2 0 11 WL 1 7 5 8 6 3 5 ,
at
* 1 ( S . D. N . Y .
Familiarity with those facts is assumed.
instant motion
is
related
to
the
May
28
Hearing
regarding City Defendants' motion for a protective order (the "May
28 Hearing"). City Defendants submitted a letter on June 12, 2014
(the "June 12 Letter") seeking reconsideration of four orders (the
"Orders")
made at the May 28 Hearing.
Treating the letter as a
motion, the matter was marked fully submitted on July 2, 2014.
Standard of Review
1
A motion for reconsideration is proper where "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); see also FarezEspinoza v.
35392,
08 Civ. 11060(HB),
Napolitano,
at *9
(S.D.N.Y.
Apr.
27,
2009).
2009 U.S.
Dist. LEXIS
Pursuant to Local Civil
Rule 6.3 the Court may reconsider a prior decision to "correct a
clear error or prevent manifest injustice." Medisim Ltd. v. BestMed
LLC,
2012
U.S.
(S.D.N.Y. Apr.
Motion Ltd.,
Dist.
23,
LEXIS
2012)
56800,
(citing RST
at
*2-3,
(2005)
2012
Inc.
v.
WL
1450420
Research in
597 F. Supp. 2d 362, 2009 WL 274467, at *1 (S.D.N.Y.
2009)) .
Reconsideration of
a
court's prior
order under Local
Rule 6.3 "is an extraordinary remedy to be employed sparingly in
the
interests
of
finality
and
conservation
of
scarce
judicial
resources." Ferring B. V. v. Allergan, Inc., No. 12 Ci v. 2 650 (RWS),
2013 WL 4082930, at *l (S.D.N.Y. Aug. 7, 2013)
Justice
v.
Nath,
893
F.
Supp.
2d
598,
605
(quoting Sikhs for
(S.D.N.Y.
2012)).
Accordingly, the standard of review applicable to such a motion is
"strict." CSX,
70 F.3d at 257
(2d Cir. 1995).
2
The burden is on the movant to demonstrate that the Court
overlooked
controlling
decisions
or
material
facts
that
were
before it on the original motion and that might "'materially have
influenced its earlier decision.'" Anglo Am. Ins. Group v. CalFed,
Inc.,
&
940 F. Supp. 554, 557
T Info.
Sys.,
(S.D.N.Y. 1996)
715 F. Supp.
Analytical Surveys, Inc. v.
(2d
Cir.
2012)
("[T]he
516,
517
(quoting Morser v. AT
(S.D.N.Y.
1989)); see also
684 F.3d 36, 52
Tonga Partners, L.P.,
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
that
data
the
reconsideration may
considered
and
overlooked.")
court
neither
decided,"
repeat
nor
"arguments
"advance
party
A
new
seeking
already briefed,
facts,
issues
or
arguments not previously presented to the Court." Schonberger v.
Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990)
(citations omitted).
City Defendants' Motion for Reconsideration Is Denied
The City seeks reconsideration of the four Orders made
at
the May
28
Hearing.
The
permitted to question a Fed.
Orders
R.
Civ.
are
P.
that:
30 (b) (6)
topic of the New York City Police Department's
Amnesty Program;
( 1)
Plaintiff
is
witness on the
(the "NYPD")
Gun
(2) Plaintiff is permitted to question a Fed. R.
Civ. P. 30(b) (6) witness on the allocation of overtime within the
3
8lst Police Precinct;
(3) the City is required to produce the 8lst
Precinct's Road Tow, Sick, and Gun Amnesty log books; and (4) the
City is required to produce additional documents pertaining to an
unrelated disciplinary proceeding against defendant Michael Marino
("Marino").
The City's contention with regards to the Orders do
not meet the strict standards for reconsideration.
The
June
12
Letter
raises
several
arguments
for
reconsideration of the Orders, but its main argument against all
four Orders pertains to the relevancy of the information sought.
City Defendants at the May 28 Hearing repeatedly raised the issue
of
relevancy
when
discussing
the
underlying
subject
matters
pertaining to the Orders. See, e.g., May 28 Hearing Tr. 12:12-13,
14:22-24, 34:13-35:2. The City again raises the issue of relevancy
of the four issues in its June 12 Letter. See June 12 Letter at 2
("In neither his May 22 letter nor in his arguments before the
Court
on
May
28th,
has
[P]laintiff
gone
beyond
statement that the information is relevant."),
3
a
conclusory
("if the Court
believes that the topic of overtime use within the 8lst precinct
is relevant to this action .... " and "[i]n arguing for production
of the aforementioned logs
[P] laintiff never specified how they
were relevant to this action .... at no time has [P]laintiff ever
articulated
the
relevance
of
these
three
log."),
4
("City
[D]efendants ask that the Court reconsider its ruling to produce
4
the [report pertaining to disciplinary proceeding against Marino]
because
it
is
irrelevant.") .
The
City
contends
that
the
information sought by Plaintiff is not relevant and therefore not
discoverable. Notwithstanding such contentions,
the City has not
provided any overlooked controlling decisions or material facts
that were not previously argued at the May 28 Hearing with respect
to relevancy on any of the Orders and has, instead, merely restated
its
arguments.
Given
such,
reconsideration
of
the
relevancy
arguments must be denied.
The City's remaining arguments similarly do not meet the
high
burden
for
reconsideration.
With
respect
to
the
30 (b) ( 6)
witness for the NYPD Gun Amnesty Program, the City contends that
any inconsistencies regarding the Gun Amnesty Program would not
make any material fact in dispute in this litigation any more or
less probable. The City had previously raised this argument at the
May 28 Hearing,
see May 28
Hearing Tr.
14:22-24
(City attorney
arguing that the gun amnesty program "has nothing to do with this
case"),
and provides no further support for the veracity of its
contention. Given such,
the City's urging for reconsideration on
the 30(b) (6) witness for the NYPD Gun Amnesty Program is denied.
The
City
Defendants'
contentions
against
having
a
30(b) (6) witness on the allocation of overtime in the 8lst Precinct
5
also does not meet the strict standards for reconsideration. Other
than its relevancy argument,
the City contends that the topic of
overtime use is more appropriate for a fact witness and that two
fact
witnesses,
Lauterborn,
defendants
Steven
Mauriello
have already been deposed,
and
likely had
Theodore
knowledge of
overtime use within the 8lst Precinct, and Plaintiff had failed to
question them on the issue.
However,
Plaintiff seeks a 30 (b) ( 6)
witness for testimony on official NYPD overtime policy. A 30(b) (6)
witness speaks for the corporation or entity.
Dev.
Co., Ltd.
v.
GE Fuel Cell Sys.,
LLC,
2013 WL 1286078 (S.D.N.Y. Mar. 28, 2013)
of
Rule
30 (b) ( 6)
'makes
clear
that
See Soroof Trading
10 CIV.
1391 LGS JCF,
("The 'plain[]' language
a
designee
is
not
simply
testifying about matters within his or her own personal knowledge,
but is speaking for the corporation about matters to which the
corporation has reasonable access.'"
(quoting Great Am.
Ins.
Co.
of New York v. Summit Exterior Works, LLC, No. 3:10 CV 1669, 2012
WL 459885,
at *3
(D.
Conn.
Sporting Goods, Inc.,
Conn.
Nov.
19,
representative
13,
2012)));
("The
a
testimony
(quoting New Jersey v.
JWL,
610671,
at
*l
provided
30 (b) (6)
[Rule]
corporation."
2010 WL
Cipriani v.
Dick's
3:12 CV 910 JBA, 2012 WL 5869818, at *2
2012)
at
Feb.
(D.
by
deposition
Sprint Corp.,
Kan.
a
Feb.
19,
(D.
corporate
binds
No.
the
03-2071-
2010))).
A fact
witness is an inappropriate witness for the questions Plaintiff
seeks
to
ask,
and
City
Defendants
6
have
cited
to
no
authority
suggesting otherwise.
Consequently,
the City Defendants request
for reconsideration of this issue must be denied.
With regards to the road tow, sick and gun amnesty logs,
City Defendants contend that production of the sick and gun amnesty
logs
may
implicate
Portability
N.Y.C.P.L.
and
the
sealing provisions
Accountability
Act
160:50 and 160.55,
§§
of
of
Heal th
("HI PAA")
1996
respectively.
Insurance
However,
and
the City
has only cursorily raised this argument and has provided no further
analysis.
The
implicate
June
12 Letter only states
additional
concerns
which
that
the
"these
Court
may
logs
not
have
the sick log potentially implicates the sealing
considered
provisions of HIPAA and the privacy rights of countless non-parties
the
to this action
sealing
provisions
of
gun amnesty log
N.Y.C.P.L.
may implicate the
160:50/160.55."
§§
"[I]ssues
mentioned in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived." Lima v. Hatsuhana of
USA,
Inc.,
2014)
13 CIV.
(quoting
3389 JMF,
Lyn
v.
Inc.
2014 WL 177412
Vill.
of
(S.D.N.Y.
Hempstead,
No.
Jan.
03
16,
Civ.
504l(DRH), 2007 WL 1876502, at *16 n. 13 (E.D.N.Y. June 28, 2007),
aff'd,
308 F. App'x 461
Chevron
Corp.
4045326,
at
*1
v.
n.
(2009)
Danziger,
3
(summary order));
No.
(S.D.N.Y.
11
Aug.
Civ.
9,
see also,
691 (LAK) (JCF),
2013)
(noting
e.g.,
2013 WL
that
the
plaintiff "ha[d] waived [an] argument by failing to develop it").
7
Apart from citing to the HIPAA or the N.Y.
not
presented
an
argument
as
to
why
C.P.L.,
these
the City has
provisions
Accordingly,
reconsideration as to this issue is denied,
City
produce
is
to
privileged
the
information
requested
may
be
information,
redacted
apply.
and the
although
subject
to
any
later
consideration and review.
The
City
also
moved
for
reconsideration
on
the
production of the findings on Marino. At the May 28 Hearing,
production
of
reports
on
certain
disciplinary
charges
the
against
Marino and the findings in the disciplinary proceedings on those
charges (the "Marino Report") was ordered. In the June 12 Letter,
City Defendants raised concerns of relevancy. As previously noted,
the City's contentions regarding relevancy in the June 12 Letter
as to the Marino Report does not present any controlling decisions
or data that were overlooked or show any clear error or manifest
injustice.
The
City's
relevancy
concerns
are
insufficient
to
compel reconsideration.
City
Defendants
contains
only Marino's
private
medical
a
privacy
contend
that
the
Marino
Report
personnel medical history and that
information
disclosure by HIPAA.
found
next
is
protected
from
such
unwarranted
The City has also cited to cases that have
interest
in
a
8
party's
medical
records.
See
Olszewski v. Bloomberg L.P., 2000 U.S. Dist. LEXIS 17951 (S.D.N.Y.
Dec. 12, 2000); Whalen v. Roe, 429 U.S. 589, 598, 51 1. Ed. 2d 64,
97 S.Ct. 869 (1977). City Defendants did not raise these arguments
either at the May 28 Hearing or in its briefing for the May 28
Hearing.
New arguments advanced by a party without excuse as to
why these arguments were not raised previously are not cognizable
on a motion for reconsideration. Richard Feiner & Co., Inc. v. BMG
Music Spain,
27,
2003);
1999)
0937
(JSR),
2003 WL 21496812
see also Novomoskvsk
95 Civ.
Revson,
28,
01 CIV.
5399(JSR),
Joint
Stock
(S.D.N.Y. June
Company
1999 WL 767325 at *l
"Azot"
v.
Sept.
are not to be considered
("[N]ew arguments
(S.D.N.Y.
[on a
motion for reconsideration] unless there is some valid reason they
could
not
have
been
previously
advanced
when
the
motion
was
originally argued." (citation omitted)); Associated Press v. U.S.
Dep't of Def.,
395
F.
Supp.
2d 17,
19
(S.D.N.Y.
2005)
("It is
settled law in this District that a motion for reconsideration is
neither
an
occasion
for
repeating
old
arguments
previously
rejected nor an opportunity for making new arguments that could
have been previously advanced." (citation omitted)). The City has
not put
forward any excuse as
to why these arguments were not
previously raised. Accordingly, the City's new arguments cannot be
considered at this time, and the City's motion for reconsideration
on the production of the Marino Report is denied.
9
Conclusion
Based
on
the
reasoning
set
for th
above,
motion for reconsideration is denied.
It is so ordered.
New York, NY
July
2014
si:i
U.S.D.J.
10
Defendant's
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