Edelman Arts, Inc. v. Spoelstra et al

Filing 100

OPINION & ORDER re: 98 MOTION to Amend/Correct 94 Report and Recommendations, of Magistrate Judge Netburn, MOTION for Reconsideration re; 94 Report and Recommendations, of Magistrate Judge Netburn, filed by Edelman Arts, Inc. Plaintiff's motion to amend is DENIED. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 98. (Signed by Magistrate Judge Sarah Netburn on 3/13/2020) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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3/13/2020

EDELMAN ARTS, INC.,
17-CV-4789 (JGK)(SN)

Plaintiff,

OPINION & ORDER

-againstREMKO SPOELSTRA, et al.,
Defendants.
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SARAH NETBURN, United States Magistrate Judge.

On January 14, 2020, I issued a Report and Recommendation (“R&R”) to the Hon. John
G. Koeltl on a damages inquest following Defendants’ default. In the R&R, I concluded that
plaintiff Edelman Arts, Inc. (“Plaintiff”) did not establish its entitlement to the damages sought.
In addition to submitting written objections to the R&R to Judge Koeltl, Plaintiff also filed a
motion asking the Court to reopen its inquest on damages and amend its conclusions set forth in
the R&R. (ECF Nos. 98-99.) The motion is DENIED.
DISCUSSION 1
Rule 52(b) states that, “[o]n a party’s motion filed no later than 28 days after the entry of
judgment, the court may amend its findings—or make additional findings—and may amend the
judgment accordingly.” Fed. R. Civ. P. 52(b). Because a Report and Recommendation is not an
entry of judgment, but rather a recommendation to the District Court Judge regarding the entry of
judgment, Plaintiff has not established that Rule 52 is the proper vehicle for challenging the
conclusions of the Court’s Report and Recommendation. See, e.g., Cordero v. Miller, 15-cvThe relevant facts are laid out in the Report and Recommendation (ECF No. 94), familiarity with which
is assumed.

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00383 (JJM)(MAT), 2018 WL 4846272, at *1 (W.D.N.Y. Oct. 5, 2018) (“Rule 52(b) . . . is
inapplicable because this matter was not tried on the facts without a jury or with an advisory jury
in federal court.”); cf. RGI Brands LLC v. Cognac Brisset-Aurige, S.A.R.L., 12-cv-01369
(LGS), 2013 WL 5299131, at *1 (S.D.N.Y. Sept. 20, 2013) (ruling on a Rule 52(b) motion after
adopting a report and recommendation and entering a “judgment” on a damages inquest).
Furthermore, as Plaintiff timely objected to the R&R, Judge Koeltl will review de novo any part
of the R&R that has been properly objected to, after which he may accept, reject, or modify the
recommended disposition; receive additional evidence; or return the matter to me with further
instructions. See Fed. R. Civ. P. 72(a)(3). Nonetheless, I have reviewed Plaintiff’s motion and
supporting materials carefully and do not find that Plaintiff has met the standard for a motion to
amend or reconsider the conclusions in the R&R.
The standard governing motions for amendment of findings under Rule 52(b), motions to
alter or amend a judgment pursuant to Rule 59(e), and motions for reconsideration pursuant to
Local Rule 6.3 is the same. See RGI Brands LLC, 2013 WL 5299131, at *1. The standard is
strict, and reconsideration will generally be denied unless the moving party can point to
controlling decisions or information that the court overlooked and which may “reasonably be
expected to alter the conclusion reached by the court.” Id. (quoting Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995)). Plaintiff bears a heavy burden because such motions are not
intended to be vehicles for “presenting the case under new theories, securing a rehearing on the
merits, or otherwise taking a second bite at the apple.” Sequa Corp. v. GBJ Corp., 156 F.3d 136,
144 (2d Cir. 1998). The decision to grant or deny a motion for reconsideration or reargument is
in the “sound discretion” of the Court and “will not be overturned on appeal absent an abuse of

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discretion.” Davidson v. Scully, 172 F. Supp. 2d 458, 462 (S.D.N.Y. 2001) (quoting McCarthy v.
Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
Despite the additional submissions in support of its current motion, Plaintiff has not made
a showing requiring the Court to amend the R&R. Plaintiff’s Memorandum of Law and
accompanying Affidavit raise one primary argument: that the Court failed to assess damages in a
way to put the Plaintiff in the same economic position it would have been in had the contract
been fulfilled. In furtherance of this argument, Plaintiff re-submits substantially the same
evidence (in the form of signed invoices and an amended affidavit from Plaintiff’s owner) that
accompanied its papers in support of the original briefing on the damages inquest. Plaintiff also
introduces, for the first time, evidence concerning purported industry standards regarding
commissions on art sales by brokers generally.
The Court afforded Plaintiff two opportunities to support its damages calculations. In
addition to reviewing Plaintiff’s Proposed Findings of Fact and Conclusions of Law, the Court
requested additional briefing as to the total damages calculation by requesting “the factual and
legal basis for calculating damages based on a combination of [1] potential commissions and [2]
the difference between the asking price and the sale price” of one of the art pieces at issue. (ECF
No. 92 (numbers added).) Plaintiff responded to that December 10, 2019 Order by submitting a
letter on December 18, 2019. In the R&R, I concluded that despite the evidence offered, Plaintiff
had not established the amount of damages, including alleged lost commissions, with the
“reasonable certainty” required on a damages inquest. Now, in support of this motion, Plaintiff
states that “[h]ad the December 10, 2019 Order asked for supplemental filings with respect to
commissions, the attached Affidavit of Asher B. Edelman with respect to the commissions
calculations would have been filed with the Court.” (ECF No. 99 at 5). The December 10, 2019

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Order, however, did request additional information about commissions. At this late stage,
Plaintiff’s motion to reconsider improperly attempts to advance “new facts, issues or arguments
not previously presented to the court.” Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y.
2001). A party seeking reconsideration, however, “is not supposed to treat the court’s initial
decision as the opening of a dialogue in which that party may then use such a motion to advance
new theories or adduce new evidence in response to the court’s rulings.” Wechsler v. Hunt
Health Sys., Ltd., 94-cv-8294 (PKL), 2004 WL 2210261, at *2 (S.D.N.Y. Sept. 30, 2004)
(internal quotation marks omitted).
Moreover, the motion does not provide controlling decisions or information previously
submitted which the Court overlooked and which may reasonably be expected to alter the
conclusion reached by the Court concerning either (1) the legal grounds upon which Plaintiff
would be entitled to damages for the piece sold by Artemis USA, LLC, or (2) the factual grounds
upon which Plaintiff would be entitled to damages in the amount of $7,585,000.00 instead of
$5,185,000.00—the total of the three alleged lost commissions plus the difference between the
contract and resale price of a fourth piece.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to amend is DENIED. The Clerk of Court is
respectfully directed to terminate the motion at ECF No. 98.
SO ORDERED.

DATED:

March 13, 2020
New York, New York

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