Fernandez v. Beehive Beer Distributing Corp. et al

Filing 69

OPINION re: 57 MOTION for Reconsideration re; 56 Memorandum & Opinion, filed by Windmill Distributing Company, L.P. For the reasons set forth above, defendants' motion for reconsideration is denied. This resolves ECF Nos. 57-58 on the docket. (As further set forth in this Opinion) (Signed by Judge Thomas P. Griesa on 8/17/2016) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DARIO FERNANDEZ,
Plaintiff,
No. 12-cv-1968

v.
OPINION

WINDMILL DISTRIB. CO., et al.
Defendants.

Plaintiff Dario Fernandez has brought this action pursuant to the Family
Medical Leave Act ("FMLA"), 28 U.S.C. § 2601 et seq., the New York State Human
Rights Law ("NYSHRL"), N.Y. McKinney's Exec. Law§ 290 et seq., and the New
York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, § 8-101 et seq.
Am. Compl., ECF No. 31.

Now before the court is defendants' motion for

reconsideration, pursuant to Local Civil Rule 6.3, of this court's February 4,
2016 opinion granting in part and denying in part defendants' motion to dismiss.
Op., ECF No. 56; Mot. for Recons., ECF Nos. 57-58. For the reasons that follow,
the court denies defendants' motion.

Background
Plaintiff's statutory claims arise from his employment at defendants' beer
and wine distribution company and his on-the-job injury in August 2009. ECF
No. 31. Defendants moved to dismiss the amended complaint by arguing that
plaintiff was party to his union's Collective Bargaining Agreement ("CBA") which,

in turn, required him arbitrate his employment-related claims. The motion to
dismiss also presented the argument that plaintiffs amended complaint failed to
state a cause of action under the NYSHRL and the NYCHRL. Mot. to Dismiss,
ECF Nos. 40-42.
In moving to dismiss, defendants asked the court to consider materials
outside the complaint.

Plaintiff opposed the substance of defendants' motion

and argued that defendants' motion to dismiss was procedurally improper
because it attached extrinsic documents, and should therefore have been
converted into a motion for summary judgment. Defendants replied, agreeing
that their motion to dismiss should be converted but otherwise disputing
plaintiff's opposition.
On February 4, 2016, this court granted in part and denied in part
defendants' motion to dismiss the amended complaint. Specifically, the court
held that plaintiff's statutory claims need not be arbitrated. Further, the court
found that plaintiff's interference and retaliation claims under the FMLA were
not well pled, nor was plaintiff's retaliation claim under the NYCHRL.
Accordingly, those claims were dismissed.

However,

the court denied

defendants' motion to dismiss as to plaintiff's disability discrimination claims
under the NYCHRL and NYSHRL.
On February 18, 2016, defendants moved for reconsideration of the above
motion-to-dismiss ruling. That is the motion presently before the court, and in
it, defendants contend that it was an abuse of discretion to convert only part of
defendants' Federal Rule of Civil Procedure 12(b)(6) motion to dismiss into a Rule
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56 motion for summary judgment, that the court's failure to convert the entirety
of defendants' motion meant that the court overlooked defendant's judicial
estoppel defense, and that the court erred in holding that plaintiff's statutory
claims need not be arbitrated. ECF No. 58 at 1-10.
Following defendants' filing of their motion for reconsideration, plaintiff
has sought new representation. This court held in abeyance its ruling on the
motion for reconsideration, pending plaintiffs' appointment of new counsel.
Nearly six months have elapsed since defendants filed their motion for
reconsideration, and the court will now consider the motion on the basis of the
opening brief alone. Even when considered unopposed, the court concludes that
defendants' motion for reconsideration lacks merit.

Discussion
I.

Standard of Law
The Local Civil Rules of this court provide that a party may seek

reconsideration of an order upon "setting forth concisely the matters or
controlling decisions which counsel believes the Court has overlooked." S.D.N.Y.
R. 6.3. Reconsideration of a previous order by the court is an "extraordinary

remedy to be employed sparingly in the interests of finality and conservation of
scarce judicial resources." Anwar v. Fairfield Greenwich Ltd., 800 F. Supp. 2d
571, 572-73 (S.D.N.Y. 2011) (citations and quotation marks omitted); see also
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
To these ends, a request for reconsideration under Rule 6.3 must
demonstrate controlling law or factual matters put before the court on the
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underlying matter that the movant believes the court overlooked and that might
reasonably be expected to alter the conclusion reached by the court.

See

Shrader, 70 F.3d at 257. The court may also grant the motion to "correct a clear
error of law or prevent manifest injustice." Munafo v. Metro. Transp. Auth., 381
F.3d 99, 105 (2d Cir. 2004). However, the court will deny the motion where the
movant "seeks solely to relitigate an issue already decided. Shrader, 70 F.3d at
257. Without good reason, "a court will 'generally adhere to [its] own earlier
decision on a given issue in the same litigation."' In re Rezulin Liability Litig.,
224 F.R.D. 346, 350 (S.D.N.Y. 2004) (quoting Tri-Star Pictures, Inc. v. Leisure
Time Prod., B.V., No. 88-cv- 9127, 1992 WL 296314, at *2 (S.D.N.Y. Oct. 6, 1992)
(citation omitted)).
II.

Application
A. Conversion

Defendants' argue that it was an abuse of discretion to convert defendants'
motion to dismiss only in part, when both parties seemingly assented to full
conversion.

Defendants' argument ignores settled law on this point.

The

decision to convert a party's Rule 12(b) motion into a Rule 56 motion rests
squarely within the discretion of the district court.

Federal Rule of Civil

Procedure 12(c) makes it discretionary with the court to exclude evidence of
matters outside the pleadings, and only when court exercises its discretion in
favor of the reception of the tendered evidence is the motion for judgment on the
pleadings converted to one for summary judgment under Rule 56. See ECF No.
56 at 5 (citing Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000)).
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Defendants have provided no authority to suggest that these principles are
somehow less true where the parties have consented to conversion.
Where parts of a motion are severable, a court may use its discretion to
convert only part of a motion to dismiss into a motion for summary judgment.
See, e.g., Zaldivar v. Anna Bella's Cafe, LLC, No. 11-cv-1198, 2012 WL 642828,
at *4 (E.D.N.Y. Feb. 28, 2012). Of course, when the court decides issues that
have not been converted, the court uses the motion to dismiss standard.
That the parties attached extrinsic documents to their filings does not
impose on the court any requirement to convert. Rather, a district court is not
required to convert "unless there is reason to believe that the extrinsic evidence
actually affected the district court's decision and thus was not at least implicitly
excluded." Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir. 1999). Defendants here
have made no such showing.

Indeed, defendants demonstrate the counter-

proposition when they argue that, in declining to convert the entire motion to
dismiss into a motion for summary judgment, the court did not consider thirdparty documents that defendants' attached in support of their judicial estoppel
argument. See infra Part B; see also ECF No. 58 at 1, 7-10.
In sum, defendants have not convinced the court that it made an error of
fact or law requiring correction of its discretionary decision to convert part of
defendants' motion to dismiss.

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B. Judicial Estoppel Defense
Defendants also contend that the court erroneously overlooked their
judicial estoppel defense, consideration of which would require the court to
examine documents outside the pleadings.
Judicial estoppel is an equitable doctrine that provides that, "[w]here a
party assumes a certain position in a legal proceeding, and succeeds in that
position, he may not thereafter, simply because his interests have changed,
assume a contrary position, especially if it be to the prejudice of the party who
has acquiesced in the position formerly taken by him." New Hampshire v. Maine,
532 U.S. 742, 749 (2001). A litigant who asserts judicial estoppel must establish
that "(1) the party against whom judicial estoppel is being asserted advanced an
inconsistent factual position in a prior proceeding, and (2) the prior inconsistent
position was adopted by the first court in some manner."

United States v.

Hussein, 178 F.3d 125, 130 (2d Cir. 1999) (quotation marks and citation
omitted). The doctrine is limited "to situations where the risk of inconsistent
results with its impact on judicial integrity is certain."

Uzdavines v. Weeks

Marine, Inc., 418 F.3d 138, 147 (2d Cir. 2005).
Defendants asserted a judicial estoppel defense in their motion to dismiss
and supported the defense with materials outside of the pleadings. The court
declined to convert this portion of the motion to dismiss, and so any
consideration of materials extrinsic to the pleadings would have been improper.
Defendants maintain that, even if the court declined to convert the entire motion
to dismiss into a motion for summary judgment, the court should have reviewed
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the extrinsic materials relating to its judicial estoppel defense and should have
granted their motion to dismiss on the basis of those materials. This argument
is misguided and disregards clear precedent from the Court of Appeals.
In Mitchell v. Drew, 154 F. App'x 235, 237 (2d Cir. 2005), defendants
appealed the district court's denial of their motions to dismiss, contending that
the district court should have considered their immunity defense. The Court of
Appeals pointed out that the record was devoid of any evidence supporting that
affirmative defense, and this was in turn because the district court did not accept
defendants' submissions of extrinsic evidence.

Defendants argued that it was

error for the district court to refuse to convert their motions to dismiss into a
motion for summary judgment such that the court could consider the
submissions.

But the Court of Appeals recognized that "[t]he district court's

refusal to do so is substantially discretionary, and denial under present
circumstances ... is not error." Id. at* 1. Accordingly, the Court of Appeals held
that the district court did not abuse its discretion in declining to consider
extrinsic evidence, and that a dismissal based on defendants' immunity defense.
In short, the Court of Appeals affirmed the district court's holdings in their
entirety.
Overlooking clear precedent in Mitchell, defendants cite to Robinson v.
Concentra Health Servs., Inc., 781 F.3d 42 (2d Cir. 2015) as sole case law
support for their argument.

In Robinson, the Court of Appeals affirmed the

district court's grant of summary judgment in favor of a defendant employer
against a disabled plaintiff in an action involving Title VII, 42 U.S.C. § 1981, and
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the FMLA. Defendant had never filed a motion to dismiss the amended complaint
in that case, and so it was at the summary judgment stage-and only at the
summary judgment stage-that the district court considered the defendant's
judicial estoppel defense. This procedural point is key because at the summary
judgment stage, the court considers the entire record before it.
In the present case, defendants' basis for their judicial estoppel defense is
not set forth on the face of the complaint or established by public record. Rather,
the court would have to look well beyond the pleadings.

Specifically, for

defendants' judicial estoppel argument to prevail, this court would have to find,
in relevant part, that plaintiff filed for and received injury-related worker's
compensation payments, thus representing that he was injured during a time
when he simultaneously claims in this case that he was fit to return to work. In
other words, the court would have to find that plaintiff maintained an
incompatible factual position.
Defendants' judicial estoppel argument fails to appreciate the standard
which governed its motion to dismiss. Defendants would have this court infer
facts in their favor, but that is clearly not the standard of review for a motion to
dismiss.

And as explained above, this court used its discretion to decline to

convert this portion of defendants' motion to dismiss into a motion for summary
judgment. Applying the motion to dismiss standard to 12(b)(6) motion is the
logical and requisite corollary to that decision. Thus, the court properly accepted
all of plaintiff's well-pleaded factual allegations as true and drew all inferences
in plaintiff's favor.

Defendants' reliance on judicial estoppel is therefore
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unavailing on this motion to dismiss. See Prince v. Suffolk Cnty. Dep't of Health
Servs., No. 89-cv-7243, 1996 WL 393528, at *5-*6 (S.D.N.Y. July 12, 1996)
(concluding also that application of judicial estoppel defense on a motion to
dismiss would improperly require the court to eschew the motion to dismiss
standard).
For the above-stated reasons, defendants' arguments concerning judicial
estoppel defense do not persuade the court that it committed error warranting
reconsideration.
C. Binding Arbitration

Defendants' assert that the court committed legal error when it held that
the collective bargaining agreement (CBA), to which plaintiff was bound by virtue
of his union membership, did not require plaintiff to arbitrate his disputes
because the CBA did not specifically reference the antidiscrimination statutes
under which plaintiff has brought suit.
In arguing this point, defendants propose an alternate reading of Supreme
Court precedent but do not cite to new or different case law, let alone controlling
or compelling case law, warranting reconsideration of this court's opinion.
Rather, defendants re-argue the points that they made in their motion to dismiss
briefing. These are the same points with which this court specifically disagreed
in its February 6 opinion.
reconsideration.

This is a losing approach on a motion for

A motion for reconsideration is not a substitute for appeal,

Boart Longyear Ltd. v. Alliance Indus., Inc., 869 F. Supp. 2d 407, 418 (S.D.N.Y.
2012), nor is it a vehicle for a party dissatisfied with the Court's ruling to voice
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its disagreement with the decision. R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d
506, 512-13 (S.D.N.Y.2009).

"Courts have repeatedly been forced to warn

litigants that such motions should not be made reflexively to reargue those
issues already considered when a party does not like the way the original motion
was resolved." Boart, 869 F. Supp. 2d at 418 (internal quotation marks and
citation omitted).
Defendants also accuse the court of exalting form over substance in
requiring the subject CBA to be clear and unmistakable about the statutory
rights it purported to subject to mandatory arbitration. But this ignores a point
central to 14 Penn Plaza, LLC v. Pyett, 556 U.S. 247 (2009): the Court found
that the Age Discrimination in Employment Act, the statute that was explicitly
named in

the~

CBA and the statute at issue in that case, did not specifically

remove itself from the National Labor Relations Act (NLRA). Id. at 257-58. In
other words, it is a threshold test whether the text of a statute listed in a CBA
excepts itself from the NLRA. If the language of a CBA is so general as to require
all "discrimination" claims to be arbitrated, a court has no way of discerning
whether "Congress itself has evinced an intention to preclude a waiver of judicial
remedies for the statutory rights at issue." Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 628 (1985)).
Ultimately, defendants disagree with this court's legal conclusions, which
they are free to do. But defendants have not provided any compelling reason for
the court to depart from its earlier holding, and it declines to do so here.
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Conclusion
For the reasons set forth above, defendants' motion for reconsideration is
denied. This resolves ECF Nos. 57-58 on the docket.

SO ORDERED.

Dated: New York, New York
August 17, 2016
Thomas P. Griesa
United States District Judge

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