Kairam, M.D. v. West Side GI, LLC

Filing 421

ORDER denying 401 Motion for Reconsideration re; (400 in 1:18-cv-01005-AT-SDA) Order Adopting Report and Recommendations, filed by Indira Kairam, M.D. For the foregoing reasons, Plaintiff's motion for reconsideration is DENIED. The Clerk of Court is directed to terminate the motion at ECF No. 401. SO ORDERED. (Signed by Judge Analisa Torres on 6/5/2024) (vfr)

underlying motion[,] and which, had they been considered, might have reasonably altered the result
before the court.” Range Rd. Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y.
2000) (citation omitted) (cleaned up).
Under Federal Rule of Civil Procedure 54(b), moreover, the Court retains inherent authority to
revisit its decisions before the entry of final judgment. Transaero, Inc. v. La Fuerza Aerea Boliviana,
99 F.3d 538, 541 (2d Cir. 1996). Similar to the local rule, the moving party “ordinarily must
demonstrate ‘an intervening change of controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.’” In re Rezulin Prod. Liab. Litig., 224 F.R.D.
346, 350 (S.D.N.Y. 2004) (citation omitted).
DISCUSSION
Plaintiff argues that the Court erred by (1) failing to make a determination as to Kairam’s
level of sophistication, Pl. Mem. at 2–6; (2) relying on the disclaimer to determine that certain
information was not within Defendants’ peculiar knowledge, id. at 6–9; (3) failing to apply the proper
reliance standard to her fraud claim, id. at 9–16; (4) holding that certain statements in her contract
were not actionable as fraud, id. at 17–19; (5) holding that her fraudulent-inducement claims were not
cognizable as contract claims, id. at 19–20; (6) engaging in impermissible factfinding at the pleading
stage with regard to contract formation, id. at 20–22; (7) failing to apply the correct legal standards,
id. at 22–26; and (8) denying leave to amend, id. at 27–30.
Plaintiff’s first, second, third, and fourth arguments restate her objections to the R&R, which
the Court already considered. See Order at 3–5. 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 Survs., Inc. v. Tonga Partners, L.P., 684

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F.3d 36, 52 (2d Cir. 2012) (citations omitted). Because these arguments do not provide a basis for
reconsideration, Plaintiff’s motion as to these issues is DENIED.
Plaintiff’s fifth argument generally repeats her argument that a fraud claim cannot be
dismissed as duplicative of a non-viable contract claim, which the Court has already rejected. Order
at 5–6. Plaintiff also claims that the Court made a factual mistake by stating that all Defendants were
parties to the Membership Subscription Agreement (“MSA”). See Pl. Mem. at 20 (citing Order at 6
n.6). Plaintiff misreads the Order. Defendant WSGI is a party to the MSA, and Defendants Pou and
Distler made the alleged oral promises; because both the MSA and the representations were subject to
breach-of-contract claims, Plaintiff cannot resurrect them as fraud claims. Order at 5–6. Her motion
on this ground is, therefore, DENIED.
Sixth, Plaintiff contends that the Court engaged in impermissible factfinding by rejecting her
claim that the MSA was ineffective because “it is apparent that Defendants never delivered the
countersigned copy to Plaintiff.” Pl. Mem. at 20–22. In adjudicating a Rule 12(b)(6) motion, a
Court’s refusal to consider allegations that are not well-pleaded does not amount to impermissible
factfinding. Ashcroft v. Iqbal, 556 U.S. 662, 679, 683 (2009). Plaintiff does not dispute that the
complaint alleges that WSGI signed the MSA. Nor does she allege that she lacks a signed copy.
Order at 4 (citing R&R at 8–9). Accordingly, Plaintiff’s conclusory argument does not necessitate
reconsideration, and her motion as to this issue is DENIED.
Seventh, Plaintiff argues that the R&R did not draw all reasonable inferences in her favor as
required on a Rule 12(b)(6) motion, and that the Court applied the wrong legal standard in adopting
the R&R. Pl. Mem. at 22–25. This general objection is belied by the thorough analysis in the R&R.
See Order at 7. And, consistent with Second Circuit precedent, the Court applied a clear-error

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standard to Plaintiff’s conclusory objections and a de novo standard to those that were not. See Order
at 2, 7. Accordingly, reconsideration on this point is DENIED.
Finally, Plaintiff objects to the Court’s denial of leave to amend because “the Court did not
identify” the failures in her complaint previously. Pl. Mem. at 27–29. Plaintiff is incorrect: the Court
specifically stated that her fraud claims were deficient with respect to reliance. ECF No. 315 at 3.
And, although Plaintiff has had “the benefit of a court’s reasoning in dismissing” her complaint, Obra
Pia Ltd. v. Seagrape Invs. LLC, No. 19 Civ. 7840, 2021 WL 1978545, at *3 (S.D.N.Y. May 18,
2021), the complaint’s deficiencies “remain remarkably the same.” Order at 7 (quoting (R&R at 24).
Plaintiff separately argues that new evidence necessitates providing her leave to amend. The
Court disagrees. “New evidence” for the purpose of a motion for reconsideration is evidence that was
“unavailable to the movant when the Court made its previous ruling and could not have been found
by due diligence.” Amtrust N. Am., Inc. v. Safebuilt Ins. Servs., Inc., No. 14 Civ. 9494, 2015 WL
9480080, at *2 (S.D.N.Y. Dec. 22, 2015). Plaintiff does not indicate that the supposedly new
evidence, most of which was referenced in her objections to the R&R, was unavailable to her despite
due diligence. See Geo-Group Comms., Inc. v. Shah, 2020 WL 6729181, at *2 (rejecting
reconsideration motion where the court considered the statements that the plaintiff argued were
overlooked). Here, too, Plaintiff has not met the “strict” standard for reconsideration.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration is DENIED. The Clerk of
Court is directed to terminate the motion at ECF No. 401.
SO ORDERED.
Dated: June 5, 2024
New York, New York

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