Ackerman v. Ackerman
Filing
76
MEMORANDUM OPINION AND ORDER #102878. The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the plaintiff's Motion for Reconsideration is denied. (Signed by Judge John G. Koeltl on 2/5/2013). (rjm) Modified on 2/5/2013 (rsh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
Norman Mactas Ackerman,
Plaintiff,
10 Civ. 6773 (JGK)
- against John Herbert Ackerman,
Defendant.
────────────────────────────────────
MEMORANDUM OPINION AND
ORDER
JOHN G. KOELTL, District Judge:
The plaintiff, Norman Ackerman, sued his son, the defendant
John Ackerman, alleging that the plaintiff entrusted certain
property to the defendant that the defendant sold without the
plaintiff’s consent.
This Court granted the Defendant’s Motion
to Dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).
The plaintiff now seeks reconsideration of
that decision.
I.
A motion for reconsideration is governed by Local Civil
Rule 6.3.
In deciding a motion for reconsideration pursuant to
Local Civil Rule 6.3, the Court applies the same standards as
those governing former Local Civil Rule 3(j).
See United States
v. Letscher, 83 F. Supp. 2d 367, 382 (S.D.N.Y. 1999) (collecting
cases).
The moving party is required to demonstrate that the
Court overlooked the controlling decisions or factual matters
that were put before the Court in the underlying motion.
1
See
Walsh v. McGee, 918 F. Supp. 107, 110 (S.D.N.Y. 1996); In re
Houbigant, 914 F. Supp. 997, 1001 (S.D.N.Y. 1996).
This rule is
“narrowly construed and strictly applied so as to avoid
repetitive arguments on issues that have been considered fully
by the Court.”
Walsh, 918 F. Supp. at 110; see also Weber v.
Multimedia Entm't, Inc., No. 97 Civ. 0682 (JGK), 2000 WL 724003
(S.D.N.Y. June 5, 2000).
II.
The plaintiff has failed to demonstrate that the Court
overlooked any controlling decisions or any factual matters that
were put before the Court in the underlying motion.
The plaintiff first alleges that this Court overlooked
precedent authorizing the Court to toll the statute of
limitations for a fraudulent concealment claim.
However, the
plaintiff did not plead fraudulent concealment in the Second
Amended Complaint, or any prior complaint.
Moreover, even if
the plaintiff had raised a claim for fraudulent concealment,
that claim was refuted because, as the Court explained, it is
evident from the pleadings that the plaintiff knew of and could
have brought this action before the statute of limitations
expired.
Therefore, the failure to consider this argument
cannot be a basis for a motion for reconsideration.
2
The plaintiff next argues that he was denied the
opportunity to submit an answer to the defendant’s Motion to
Dismiss.
The plaintiff filed an amended complaint in February
2012, and, in July 2012, filed a Motion for Leave to File a
Second Amended Complaint.
The Second Amended Complaint did not
change any issue relevant to the Motion to Dismiss.
In an Order
dated December 12, 2012, this Court granted the plaintiff’s
motion and, with the consent of the parties, deemed the Motion
to Dismiss as directed against the Second Amended Complaint.
As
the plaintiff acknowledges, “[d]uring oral argument . . . on
December 7, 2012, the Court granted leave for the submission of
the plaintiff’s Second Amended Complaint, and both parties
agreed to the proposal by the Court that defendant’s Rule
12(b)(6) Motion to Dismiss, initially submitted to the Court on
March 12, 2012, would be applied to the Second Amended Complaint
when said complaint was accepted by the Court.” (Mem. of Law In
Supp. of Pl.’s Mot. for Reconsideration at 4.)
The Motion to
Dismiss was fully briefed by the date of oral argument, and as
the Court explained to the parties, it directed all submissions
in connection with the Motion to Dismiss as directed toward the
Second Amended Complaint.
Therefore, the plaintiff did have an
opportunity to respond to the Motion to Dismiss, and this is not
a basis for granting the Motion for Reconsideration.
3
Accordingly, the plaintiff’s Motion for Reconsideration is
denied.
CONCLUSION
The Court has considered all of the arguments of the
parties.
To the extent not specifically addressed above, the
remaining arguments are either moot or without merit.
For the
foregoing reasons, the plaintiff’s Motion for Reconsideration is
denied.
SO ORDERED.
Dated:
New York, New York
February 5, 2013
____________________________
John G. Koeltl /s
United States District Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?