Wexler et al v. Allegion (UK) Limited et al
OPINION AND ORDER re: 161 MOTION for Reargument re: (45 in 1:18-cv-04033-ER, 159 in 1:16-cv-02252-ER) Memorandum & Opinion; MOTION for Reconsideration re: (45 in 1:18-cv-04033-ER, 159 in 1:16-cv-02252-ER) Memorandum & Opinion; MOTION Clarification re: (45 in 1:18-cv-04033-ER, 159 in 1:16-cv-02252-ER) Memorandum & Opinion, filed by Elias Wexler, Zero East, Ltd., Zero International Realty Co., Inc., Zero Realty NC LLC, Zero America Latina, LTD, Zero Ohio, LLC, Zero Asia Pacific Ltd., Jacob Wexler. For all of these reasons, the Wexler Parties' motion for clarification or reconsideration of the Court's August 25 Order is denied in its entirety. The Clerk is respectfully directed to terminate the motion, Doc. 161. SO ORDERED. (Signed by Judge Edgardo Ramos on 3/31/2021) (va)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELIAS WEXLER, ZERO INTERNATIONAL
REALTY CO., INC., ZERO OHIO, LLC, ZERO
REALTY NC, LLC, 391 CONCORD AVENUE,
INC, ZERO AMERICA LATINA, LTD., ZERO
ASIA PACIFIC, LTD., and ZERO EAST, LTD.,
OPINION AND ORDER
16 Civ. 2252 (ER)
- against ALLEGION (UK) LIMITED, ALLEGION PLC,
and SCHLAGE LOCK COMPANY LLC,
SCHLAGE LOCK COMPANY, LLC,
- against ELIAS WEXLER,
SCHLAGE LOCK COMPANY, LLC,
18 Civ. 4033 (ER)
- against JACOB WEXLER, and LEGACY
On August 25, 2020, the Court denied in part and granted in part motions by the
Plaintiffs and the Legacy Defendants (collectively, the “Wexler Parties”) to compel
Schlage’s response to certain discovery requests, and for a protective order shielding
them from several of Schlage’s requests (“August 25 Order”). 1 Doc. 159. Pending
before the Court is the Wexler Parties’ motion for clarification or reconsideration of the
August 25 Order with respect to the Court’s rulings on two distinct discovery disputes.
Doc. 161. For the reasons set forth below, the motion is denied.
Factual Background and Procedural History
This case arises from Wexler’s disputes with Schlage following sale of his former
company, Zero, to Schlage, Wexler and his son Jacob’s subsequent termination by
Schlage, and Wexler and Jacob’s endeavors after termination. Doc. 159 at 2-6. In
relevant part, Wexler alleges that Schlage defamed him by telling industry insiders that
he had been fired for cause, costing him $45 million in damages in lost business, and
teaching, speaking, and expert witness opportunities. Doc 52 at ¶¶ 93-103, 121-28, 14964. Schlage, among other things, alleges tortious interference and related claims against
the Legacy Defendants for interfering with Wexler’s non-compete agreement with
Schlage. 18 Civ. 4033 Doc. 1 at ¶ 127. Of particular relevance to this motion, Schlage
alleges that Jacob worked for one year at AAA Architectural Hardware (“AAA”) during
the pendency of his non-compete with Schlage, and admitted to AAA that he sought
industry advice from his father. Id. at ¶¶ 75, 82.
The Court assumes the parties’ familiarity with the facts, procedural history, and holdings in its August
25 Order and will only set forth those facts necessary to decide this motion. Doc. 159. Any abbreviations
remain as defined in the August 25 Order unless otherwise noted. Id.
Following the close of document discovery on April 22, 2019, the parties
exchanged deficiency letters and had two meet and confers to resolve numerous
discovery disputes. Doc. 159 at 8-10. On November 27, 2019, the Wexler Parties filed a
motion to compel responses to certain of their document requests, and a motion for a
protective order against certain of Schlage’s document requests. Id. at 10.
The Wexler Parties sought to compel, inter alia, a further response to their first
set of document requests No. 18. Id. at 22. The request asked for all documents and
communications concerning AAA, Jacob, Wexler, or Legacy, which the Wexler parties
assert are relevant to their tortious interference and conspiracy claims against Schlage.
The Wexler Parties argued that Schlage’s initial response was insufficient because the
Wexler Parties had produced emails that Schlage should also have produced and provided
examples of such emails. Doc. 159 at 22. Schlage responded that any further AAA
documents were irrelevant because they neither proved nor disproved that Jacob or
Legacy unlawfully competed against Schlage. Doc. 156 at 38. Schlage further reasoned
that it had already searched the email files of 13 custodians for responsive documents,
and that it would be unduly burdensome to search the email of every other employee. Id.
The Wexler Parties also requested a protective order with respect to Schlage’s
document requests Nos. 55-58. Doc. 159 at 26. The requests sought disclosure of
Wexler’s personal and business state and federal tax returns filed for the five years prior
to his employment at Schlage until the present, as well as W-2s, 1099s, and other
financial documentation. Doc. 157 at 1-3. The Wexler Parties objected that these
requests were irrelevant, vague, overbroad, and unduly burdensome. Id. Schlage
responded that Wexler’s financial records were relevant because he alleges substantial
economic losses as a result of Schlage’s defamatory statements including the loss of
teaching positions, speaking engagements, and work as an expert. Id. Schlage reasoned
that Wexler’s request for damages “put his financial records squarely within the scope of
relevant discovery.” Id. at 1-2. Schlage further argued that Wexler’s financial records
would be easily accessible for him or his accountants. Id. at 2.
On August 25, 2020, the Court issued an order denying the Wexler Parties’
motion to compel a further response to document request No. 18 and for a protective
order with respect to Schlage’s requests for Wexler’s financial records. Doc. 159 at 2728. With respect to request No. 18, the Court found that the examples the Wexler Parties
provided were irrelevant because they “ha[d] nothing to do with the non-competition
claims, as they provide[d] updates on Zero International products to Jacob while he was
working at AAA Architectural Hardware.” Id. at 22. In denying the Wexler Parties’
motion for a protective order with respect to Schlage’s requests for financial records, the
Court explained, “[u]nlike in the cases cited by [the Wexler Parties] denying requests for
similar financial information, here Wexler’s financial information is relevant to his
damages claims and cannot be gathered from another source.” Id. at 26 n.17.
On September 3, 2020, the parties met and conferred on these issues but were
unable to reach a compromise. Doc. 162 at 3-4. On September 8, 2020, the Wexler
Parties filed a motion, pursuant to Local Civil Rule 6.3 and Rules 59(e) and 60(a) of the
Federal Rules of Civil Procedure, for clarification or reconsideration of the Court’s
August 25 Order with respect to request No. 18, and reconsideration of the Court’s
August 25 Order with respect to the portion of Schlage’s requests seeking Wexler’s
personal tax returns. Id. On September 16, 2020, Schlage opposed. 2 Doc. 164.
Standards of Review
Local Civil Rule 6.3 and Fed. R. Civ. P. 59(e)
“�e standards governing motions to alter or amend judgment under Rule 59(e)
and motions for reconsideration or reargument under Local Rule 6.3 are identical.”
Farez-Espinoza v. Napolitano, No. 08 Civ. 11060 (HB), 2009 WL 1118098, at *3
(S.D.N.Y. Apr. 27, 2009) (citing Henderson v. Metro. Bank & Trust Co., 502 F. Supp. 2d
372, 375 (S.D.N.Y. 2007)). “A motion for reconsideration or re-argument shall be
granted only if the court has overlooked ‘controlling decisions or factual matters that
were put before it on the underlying motion . . . and which, had they been considered,
might have reasonably altered the result before the court.’” Mikol v. Barnhart, 554 F.
Supp. 2d 498, 500 (S.D.N.Y. 2008) (quoting Greenwald v. Orb Commc’ns & Mktg., Inc.,
No. 00 Civ. 1939 (LTS) (HBP), 2003 WL 660844, at *1 (S.D.N.Y. Feb. 27, 2003)).
“Reconsideration of a court’s previous order is an extraordinary remedy to be employed
sparingly in the interests of ﬁnality and conservation of scarce judicial resources.”
Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (citation omitted).
“Where the movant fails to show that any controlling authority or facts have actually
been overlooked, and merely oﬀers substantially the same arguments he oﬀered on the
original motion or attempts to advance new facts, the motion for reconsideration must be
denied.” Mikol, 554 F. Supp. 2d at 500 (citing Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995)).
On March 3, 2021, counsel for the Wexler Parties were granted leave to withdraw and the case was
stayed until March 31, 2021 for the Wexler Parties to retain new counsel. Doc. 171.
Rule 60(a) of the Federal Rules of Civil Procedure also allows a court to clarify a
judgment. Under that rule, a court may provide “clarification and explanation, consistent
with the intent of the original judgment[.]” L.I. Head Start Child Dev. Servs., Inc. v.
Econ. Opportunity Comm’n of Nassau Cnty., Inc., 956 F. Supp. 2d 402, 410 (E.D.N.Y.
2013) (quoting Garamendi v. Henin, 683 F.3d 1069, 1079 (9th Cir. 2012)). Orders that
clarify a judgment should “add certainty to an implicated party’s efforts to comply with
the [original] order” or “provide fair warning as to what future conduct may be found
contemptuous.” N.A. Sales Co., Inc. v. Chapman Indus. Corp., 736 F.2d 854, 858 (2d
Cir. 1984). However, Rule 60(a) “does not allow a court to make corrections that, under
the guise of mere clarification, reflect a new and subsequent intent because it perceives
its original judgment to be incorrect.” Consumer Fin. Prot. Bureau v. Sprint Corp., 320
F.R.D. 358, 363 (S.D.N.Y. 2017) (quoting L.I. Head Start Child Dev. Servs., 956 F.
Supp. 2d at 410)). Therefore, the distinction between an error that may be clarified under
Rule 60(a) and one that must be “reconsidered” under Rule 59 and Local Civil Rule 6.3 is
that “a correction under Rule 60(a) cannot alter the substantive rights of the parties, but
rather may only correct the record to reflect the adjudication that was actually made.”
Consumer Fin. Prot. Bureau, 320 F.R.D. at 363 (citation omitted).
Document Request No. 18
The Wexler Parties fail to satisfy their burden under Local Civil Rule 6.3 or Rule
59(e) with respect to their document request no. 18. The Wexler Parties argue here, for
the first time, that Schlage conceded the relevance of the documents requested by
identifying AAA in its own pleadings, document requests and initial disclosures, and by
previously producing documents related to AAA. Doc. 162 at 7-8. However, “[a]
motion for reconsideration is not a vehicle for parties to present arguments they could
have raised earlier but did not.” City of Almaty, Kazakhstan v. Ablyazov, No. 15 Civ.
5345 (AJN), 2021 WL 1180058, at *1 (S.D.N.Y. Mar. 29, 2021) (citing Caribbean
Trading & Fid. Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d 111, 115 (2d Cir.
The Wexler Parties further argue that request No. 18 is plainly relevant. Doc. 162
at 8. But, the Court never held that the request was irrelevant: Schlage had already
produced documents responsive to this request, and the Court merely held that the
examples the Wexler Parties provided concerning documents that should have been
produced by Schlage were irrelevant. Doc. 159 at 22. Movant’s additional argument,
that those examples are particularly relevant because they tend to show that Schlage
knew Jacob was selling Zero products, remains unconvincing. Doc. 162 at 8 n.3. Indeed,
it is a reprisal of their argument on their initial motion to compel, which the Court
considered and rejected. Doc. 159 at 22. The Wexler Parties cannot meet the heavy
burden of reconsideration by repeating the same arguments from their motion papers
without pointing to any overlooked law or facts. Mikol, 554 F. Supp. 2d at 500 (citing
Shrader, 70 F.3d at 257).
The Wexler Parties’ motion is therefore denied with respect to document request
Wexler’s Tax Returns
The Wexler Parties’ position regarding Wexler’s tax returns is equally unavailing.
The Wexler Parties argue that Schlage has failed to show that Wexler’s personal tax
returns are relevant, or to proffer a compelling need for them, suggesting that the Court
failed to apply controlling precedent. Doc. 162 at 6. But the Court cited and
distinguished the two cases upon which the Wexler Parties relied in their motion for a
protective order. Doc. 159 at 26 n.17. In Rosas v. Alice’s Tea Cup, LLC, the court
granted plaintiffs’ motion for a protective order with respect to their tax returns because
the FLSA defendant had not shown relevance or compelling need. 127 F. Supp. 3d 4, 11
(S.D.N.Y. 2015). In Mazzaro de Abreu v. Bank of Am. Corp., the court similarly denied
defendants’ motion to compel plaintiffs’ tax documents because they were likely
governed by Brazilian law, were “not directly relevant to the claims and defenses,” were
not important to resolving the issues, and the burden of the proposed discovery
outweighed the benefit of their production. No. 06 Civ. 673 (LMM) (DFE), 2008 WL
4787553, at *3 (S.D.N.Y. Oct. 28, 2008). Here, by contrast, the tax returns are clearly
relevant to Wexler’s damages claims, and the Wexler Parties had yet to produce any
financial documents at the time that the August 25 Order was issued. There was thus a
compelling need for their production to Schlage. 3
The Wexler Parties also argue that because they have now produced Wexler’s W2s, 1099s, and other financial documents responsive to the remainder of Schlage’s
The additional cases the Wexler Parties cite in the instant motion are likewise inapposite. Xiao Hong
Zheng v. Perfect Team Corp., 739 F. App’x 658, 660-61 (2d Cir. 2018) (affirming denial of request to ask
tax questions at deposition to attack defendant’s credibility); Sadofsky v. Fiesta Prods., LLC, 252 F.R.D.
143, 150 (E.D.N.Y. 2008) (denying request for tax documents where the same information was “readily
obtainable by examining the invoices already produced”); Chen v. Republic Rest. Corp., No. 07 Civ. 3307
(LTS) (RLE); 2008 WL 793686, at *1-3 (S.D.N.Y. Mar. 26, 2008) (denying request for FLSA plaintiffs’
tax returns because they were irrelevant and defendant showed no compelling need); Hamm v. Potamkin,
requests following the August 25 Order, he should not be compelled to produce his
personal tax returns. Id. at 6-7 & n.2. This argument is new and therefore the improper
subject of a motion for clarification or reconsideration. Mikol, 554 F. Supp. 2d at 500
(citation omitted). It is also entirely uncompelling. That the Wexler Parties refused to
produce documents responsive to any of the financial records requests, which were
clearly relevant to Wexler’s damages allegations, before the August 25 Order issued, and
have now decided to produce some but not all of what the Court clearly ordered, is not an
argument for clarification or reconsideration: it is an improper attempt at appeal. A
motion for reconsideration is not meant for the parties to “reflexively reargue those issues
already considered when a party does not like the way the original motion was resolved,
and is not a substitute for an appeal.” S.E.C. v. Neto, 27 F. Supp. 3d 434, 439 (S.D.N.Y.
2014) (citation omitted).
Accordingly, the Wexler Parties’ motion is denied with respect to Wexler’s tax
For all of these reasons, the Wexler Parties’ motion for clarification or
reconsideration of the Court’s August 25 Order is denied in its entirety. The Clerk is
respectfully directed to terminate the motion, Doc. 161.
March 31, 2021
New York, New York
Edgardo Ramos, U.S.D.J.
No. 98 Civ. 7425 (RWS), 1999 WL 249721, at *2 (S.D.N.Y. Apr. 28, 1999) (denying motion to compel
defendants’ tax returns where plaintiffs conceded that other documents regarding net worth would be
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