Gym Door Repairs, Inc. et al v. Young Equipment Sales, Inc. et al
Filing
274
MEMORANDUM OPINION ANDORDER re: 228 MOTION for Reconsideration of Order Dismissing Causes of Action for Tortious Interference and Conspiracy as to ESBOCES. filed by Gym Door Repairs, Inc., Safepath Systems LLC, 231 MOTION for Reconsideration re; 224 Memorandum & Opinion . filed by Carl Thurnau, 246 MOTION for Reconsideration of Order Dismissing Causes of Action for Tortious Interference and Conspiracy as to ESBOCES or to Supplement and Amen d Second Amended Complaint. filed by Gym Door Repairs, Inc., Safepath Systems LLC. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, Thurnau's motion for reconsideration is denied; the plaintiffs'motion for reconsideration is denied; and the plaintiffs' request for leave to file an amended complaint is granted. The Clerk is directed to cl ose Dkts. 228, 231, and 246. The plaintiffs are directed to file their Third Amended Complaint within ten (10) days of the date of the filing on ECF of this Memorandum Opinion and Order. (As further set forth in this Order.) (Signed by Judge John G. Koeltl on 11/9/2016) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
GYM DOOR REPAIRS, INC. ET AL.
Plaintiffs,
15-cv-4244 (JGK)
- against –
YOUNG EQUIPMENT SALES, INC. ET AL.,
MEMORANDUM OPINION AND
ORDER
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiffs, Gym Door Repairs, Inc., and Safepath
Systems LLC, brought suit against nineteen defendants to obtain
permanent injunctive relief, damages, and attorneys’ fees and
costs for the defendants’ alleged infringement of the
plaintiffs’ patent, copyrights, and trademarks, and---under New
York State law---for unfair competition, tortious interference
with prospective economic advantage, and civil conspiracy. The
defendants opposed the application for injunctive relief, and
filed nine separate motions to dismiss the plaintiffs’ Second
Amended Verified Complaint (the “SAC”).
In a Memorandum Opinion and Order dated September 9, 2016,
the Court denied the plaintiffs’ application for a preliminary
injunction. See Gym Door Repairs, Inc. v. Young Equip. Sales,
Inc., No. 15-CV-4244 (JGK), 2016 WL 4742317 (S.D.N.Y. Sept. 12,
2016). In a separate Amended Opinion and Order, the Court
granted in part and denied in part the defendants’ motions to
1
dismiss. See Gym Door Repairs, Inc. v. Young Equip. Sales, Inc.,
No. 15-CV-4244 (JGK), 2016 WL 4747281 (S.D.N.Y. Sept. 12, 2016).
Pending before the Court are two motions relevant to the
Amended Opinion and Order. First, individual defendant Carl
Thurnau (“Thurnau”) has filed a motion for reconsideration of
the denial of his motion to dismiss the claims against him for
tortious interference with prospective economic advantage and
civil conspiracy. Second, the plaintiffs have moved for
reconsideration of the grant of the dismissal of their claims
against the defendant Eastern Suffolk Board of Cooperative
Educational Services (the “ESBOCES”) for tortious interference
with business relationships and civil conspiracy; in the
alternative, the plaintiffs have moved to amend the SAC to add
new allegations that they argue will suffice to state those
claims against the ESBOCES.
For the purposes of these motions, the parties’ familiarity
with the facts of the case, procedural history, and underlying
claims is presumed. See Gym Door, 2016 WL 4747281, at *2-4.
For the following reasons, Thurnau’s motion for
reconsideration is denied; the plaintiffs’ motion for
reconsideration is denied; and the plaintiffs’ request to amend
the SAC is granted.
2
I.
“The decision to grant or deny a motion for reconsideration
rests within the sound discretion of the district court.”
Vincent v. Money Store, No. 03 Civ. 2876 (JGK), 2011 WL 5977812,
at *1 (S.D.N.Y. Nov. 29, 2011) (internal quotation marks
omitted). “Reconsideration of a previous order by the Court is
an extraordinary remedy to be employed sparingly.” Anwar v.
Fairfield Greenwich Ltd., 800 F. Supp. 2d 571, 572 (S.D.N.Y.
2011) (internal quotation marks omitted). “The major grounds
justifying reconsideration are an intervening change of
controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.” Virgin
Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992) (internal quotation marks omitted); see also
Assured Guar. Mun. Corp. v. RBS Sec. Inc., No. 13-cv-2019 (JGK),
2014 WL 1855766, at *1 (S.D.N.Y. May 8, 2014).
II.
Thurnau first argues that the Amended Opinion and Order
overlooked that the plaintiffs abandoned their tortious
interference and civil conspiracy claims against him. Thurnau
contends that he had argued in the opening papers accompanying
his motion to dismiss that the patent, copyright, tortious
interference with prospective economic advantage, and conspiracy
claims against him were time-barred, but that the plaintiffs
3
opposed his timeliness arguments only with respect to the patent
and copyright claims, meaning that the plaintiffs abandoned
their tortious interference and conspiracy claims. Thurnau adds
that, because the Amended Opinion and Order concluded that other
claims against him were abandoned due to the plaintiffs’ failure
to address those claims in their papers, the tortious
interference and conspiracy claims should have been deemed
abandoned as well.
Abandonment should almost never be a ground for
reconsideration. There is nothing extraordinary or manifestly
unjust about letting an otherwise sufficiently pleaded claim
that a plaintiff supposedly did not address “adequately” in
response to a Rule 12(b)(6) motion proceed past the pleading
stage. Moreover, Thurnau’s argument is meritless because, unlike
the other claims that were deemed abandoned, the plaintiffs’
timeliness arguments on the motion to dismiss were reasonably
interpreted to address Thurnau’s specific arguments with respect
to the timeliness of the tortious interference and conspiracy
claims. The Court was in good company in this respect: Thurnau
concluded that the claims against him were addressed well enough
in the plaintiffs’ opposition to warrant substantive responses
in his reply papers.1 See Dkt. 147.
1
In their opposition to Thurnau’s motion for reconsideration,
the plaintiffs suggest that their claims are also timely due to
4
Next, Thurnau contends that the Amended Opinion and Order
overlooked his arguments that the tortious interference and
conspiracy claims against him were time-barred. But the
contention was considered, though determined to be without
merit. See Gym Door, 2016 WL 4747281, at *31 (“The Court has
considered all of the arguments raised by the parties. To the
extent not specifically addressed, they are either moot or
without merit.”). As Thurnau concedes, the plaintiffs alleged
that Thurnau engaged in certain tortious acts that occurred
within the statute of limitations. See Dkt. 245 at 2. Although
Thurnau questions the evidentiary weight of these acts, that is
plainly not a basis for reconsideration of the denial of a Rule
12(b)(6) motion.
Finally, Thurnau recycles, and hones, essentially the same
arguments already found in the papers supporting his motion to
dismiss, that the SAC did not adequately state a claim for
tortious interference or civil conspiracy. However, a motion for
reconsideration “is not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on
the merits, or otherwise taking a ‘second bite at the apple.’”
Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36,
additional allegations that they would add to the complaint if
leave were granted. As discussed with respect to the plaintiffs’
motion for reconsideration, those proffered allegations are
irrelevant to Thurnau’s motion for reconsideration of the
Amended Opinion and Order.
5
52 (2d Cir. 2012), as amended (July 13, 2012) (quoting Sequa
Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). Thurnau
does not identify any changes in law, extraordinary reasons, or
clear errors that warrant reconsideration.
Accordingly, Thurnau’s motion for reconsideration is
denied.
III.
The plaintiffs have moved for reconsideration of the
Amended Opinion and Order to the extent that it dismissed the
claims against the ESBOCES for tortious interference with
business relationships and civil conspiracy, or, in the
alternative, to amend the SAC. The plaintiffs’ motion is an
attempt to resuscitate their claims against the ESBOCES that
were dismissed by the Amended Opinion and Order as untimely. See
Gym Door, 2016 WL 4747281, at *22-23.
A.
The plaintiffs argue that, in dismissing their claims for
tortious interference and civil conspiracy as untimely, the
Amended Opinion and Order overlooked certain allegations against
the ESBOCES that occurred within the statute of limitations. The
flaw in the plaintiffs’ argument is that the allegations were
not overlooked because they did not exist in the SAC. Indeed,
the plaintiffs have moved to amend the SAC so that they can add
the allegations that were purportedly “overlooked.” See Daniel
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v. T & M Prot. Res. LLC, No. 13 CIV. 4384 (PAE), 2015 WL 783349,
at *1 (S.D.N.Y. Feb. 24, 2015) (observing 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”); Koehler v.
Bank of Bermuda Ltd., No. M18-302(CSH), 2005 WL 1119371, at *1
(S.D.N.Y. May 10, 2005) (“It is implicit . . . that a motion for
reconsideration cannot assert new arguments or claims which were
not before the court on the original motion and consequently
cannot be said to have been considered.”). Moreover, none of the
new allegations can qualify as based on “new evidence” because,
as the plaintiffs concede, all of the purported evidence was
available, and in fact known, to the plaintiffs prior to the
issuance of the Amended Opinion and Order. Accordingly, the
plaintiffs’ motion for reconsideration is denied.
B.
`
On the other hand, the plaintiffs’ request for leave to
amend the SAC is subject to a far more forgiving standard, and
thus fares better. Rule 15(a)(2) of the Federal Rules of Civil
Procedure provides that the court should “freely give” leave to
amend a pleading “when justice so requires.” See Foman v. Davis,
371 U.S. 178, 182 (1962); Nerney v. Valente & Sons Repair Shop,
66 F.3d 25, 28 (2d Cir. 1995). Generally, the “grant of leave to
amend the pleadings pursuant to Rule 15(a) is within the
7
discretion of the trial court.” Sanders v. Venture Stores, Inc.,
56 F.3d 771, 773 (7th Cir. 1995) (quoting Zenith Radio Corp. v.
Hazeltime Research, Inc., 401 U.S. 321, 330 (1971)). Undue
delay, undue prejudice to the opposing party, and futility of
the amendment are among the reasons to deny leave to amend. See
Foman, 371 U.S. at 182; see also Rodriguez v. Am. Friends of
Hebrew Univ., Inc., No. 96 Civ. 240 (JGK), 1999 WL 493369, at *1
(S.D.N.Y. July 12, 1999).
The plaintiffs argue that the new allegations directed at
the ESBOCES---for example, that the ESBOCES knowingly accepted
certain fabricated documents from other defendants, and that the
ESBOCES retaliated against the plaintiffs by withdrawing a
bid---occurred within the statute of limitations, and suffice to
allege timely claims against the ESBOCES for tortious
interference and conspiracy.
The decision to grant leave to amend is discretionary, and,
although the ESBOCES argues otherwise, it cannot be said that
the plaintiffs’ request is the product of undue delay or undue
prejudice to the ESBOCES. The ESBOCES’ primary argument against
amendment rests on futility. The ESBOCES contends that the
plaintiffs’ notice of claim filed on May 1, 2015 (the “Notice of
Claim”) did not give the ESBOCES sufficient notice of the
tortious interference claim. See Kleinberg Decl., Ex. A (The
Notice of Claim).
8
The contention is unpersuasive. As discussed in the Amended
Opinion and Order, see Gym Door 2016 WL 4747281, at *22, under
N.Y. Educ. Law § 3813(2), “no action or special proceeding
founded upon tort may be prosecuted or maintained” against the
ESBOCES unless (1) the plaintiff serves within ninety days after
the claim arose a notice of claim “made and served in compliance
with” N.Y. Gen. Mun. Law 50–e; and (2) the action is “commenced
pursuant to the provisions of” N.Y. Gen. Mun. Law § 50–i, which
requires, among other things, that the complaint allege
compliance with N.Y. Gen. Mun. Law § 50–e. Pursuant to N.Y. Gen.
Mun. Law § 50–e, a notice of claim must state the time and
nature of the claim.
The ESBOCES contends that the Notice of Claim did not
sufficiently set forth the “nature” of the plaintiffs’ claim as
now conceived by what will be the Third Amended Complaint. “In
general, the test of a notice of claim’s sufficiency is whether
it includes enough information to enable the municipality to
investigate the claim adequately. . . . The fact that a cause of
action not mentioned in the notice of claim arises out of the
same incident as enumerated claims ‘is not pivotal; rather, the
nature of the claim and the theory of liability are
determinative.’” Fincher v. County of Westchester, 979 F. Supp.
989, 1002-03 (S.D.N.Y. 1997) (citations omitted).
9
Among other things, the Notice of Claim informed the
ESBOCES that the plaintiffs would be pursuing a claim for
“tortious interference with business relationships,” that “the
acts complained of are ongoing,” and that the claims related to
“[f]ees from contracts for the installation and maintenance of
Safe Path Systems awarded to uncertified vendors.” Kleinberg
Decl., Ex. A. The plaintiffs’ proposed allegations are plainly
of the same nature, and directly attributable, to the
information set forth in the Notice of Claim. The Notice of
Claim specifically referenced a claim for tortious interference
with business relationships, and the civil conspiracy claim is
based on the same tort. The plaintiffs are not seeking to add a
new type of claim or a new theory of liability to their
complaint, let alone a new claim or theory of the sort that
could not have been anticipated by the ESBOCES, and thus that
would not have been adequately investigated. See, e.g.,
Pastorello v. City of New York, No. 95 CIV. 470(CSH), 2001 WL
1543808, at *9, *13 (S.D.N.Y. Dec. 4, 2001). Permitting the
plaintiffs to amend the SAC to add new allegations directed
against ESBOCES thus cannot be said to be futile.
To the extent that that the plaintiffs have sought to
include in their complaint allegations relating to events that
occurred after the SAC was filed, the plaintiffs’ motion is
properly construed as a motion to supplement the pleading
10
pursuant to Rule 15(d) of the Federal Rules of Civil Procedure.
Supplementing the SAC at this juncture would not be dilatory or
in bad faith, and no determination could be made that such
supplementation is futile. If there is a valid objection to
including allegations based on recent events in the plaintiffs’
pleading, those arguments can be raised in an answer or a
subsequent motion to dismiss.
Accordingly, the plaintiffs’ request to file a Third
Amended Complaint is granted.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons,
Thurnau’s motion for reconsideration is denied; the plaintiffs’
motion for reconsideration is denied; and the plaintiffs’
request for leave to file an amended complaint is granted. The
Clerk is directed to close Dkts. 228, 231, and 246. The
plaintiffs are directed to file their Third Amended Complaint
within ten (10) days of the date of the filing on ECF of this
Memorandum Opinion and Order.
SO ORDERED.
Dated:
New York, New York
November 9, 2016
______________/s/______________
John G. Koeltl
United States District Judge
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