1199 SEIU Regional Pension Fund et al v. Eastern Niagara Hospital, Inc. et al
DECISION AND ORDER granting in part and denying in part 28 Motion to Seal; denying 29 Motion for Reconsideration. Signed by Hon. Jeremiah J. McCarthy on 10/4/13. (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
1199 SEIU PENSION FUND, by George
Kennedy and Thomas R. Lostracco,
DECISION AND ORDER
EASTERN NIAGARA HOSPITAL, INC., a/k/a
EASTERN NIAGARA HEALTH SYSTEM and
NEWFANE REHABILITATION & HEALTH
CARE CENTER a/k/a EASTERN NIAGARA
Before me is defendants’ motion  (which it seeks to file under seal 1) for
reconsideration of my September 10, 2013 Decision and Order , and for a stay of
enforcement of that Decision and Order pending determination of the motion for reconsideration.
Familiarity with the prior proceedings is presumed, and I do not consider opposing papers to be
necessary. For the following reasons, the request for filing under seal is granted in part and
denied in part, the motion for reconsideration is denied, and the motion for a stay is denied.
Should Any Portion of the Motion be Sealed?
Defendants seek to file their entire motion for reconsideration under seal, since it
includes a discussion of what occurred during the mediation on July 9, 2013. However, “[c]ourts
should allow only those portions of the documents which are truly confidential to be filed under
Bracketed references are to CM/ECF docket entries.
seal, since it is well settled that the public has a common-law right of access to judicial records.
The presumption of access is at its strongest when the document in question, as here, has been
submitted as a basis for judicial decision making”. Cornelius v. Independent Health Association,
Inc., 912 F.Supp.2d 26, 29 (W.D.N.Y. 2012) (McCarthy, M.J./Arcara, J.).
Therefore, the motion for reconsideration will be sealed to the extent that it
discloses what allegedly occurred during the mediation, so that the record will be complete for
any potential review of this Decision and Order.2 However, for the following reasons I refuse to
consider that disclosure.
Have Defendants Shown a Basis for Reconsideration?
“The decision whether to grant or deny a motion to reconsider lies in this Court’s
discretion . . . . Motions for reconsideration are not to be used as a means to reargue matters
already disposed of by prior rulings or to put forward additional arguments that could have been
raised before the decision”, or “to give an unhappy litigant one additional chance to sway the
judge.” United States v. Kasper, 2012 WL 2573259, *1 (W.D.N.Y. 2012) (Skretny, J.).
Therefore, “reconsideration will be denied unless the moving party can point to controlling
decisions or data that the court overlooked - matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Id.
In their earlier submissions, defendants disclosed a portion of what had allegedly
occurred during the July 9 mediation ([24-2], p. 128 of 128), and I ruled that “since §5.10(A)(3)
The unredacted version of the motion [30, 31] is filed under seal, and the redacted
version [32, 33] is not.
of this court’s ADR [Alternative Dispute Resolution] Plan states that ‘no communication made
in connection with or during any mediation session may be disclosed or used for any purpose . . .
in any pending or future proceeding in the Court’, I will not consider what occurred during
mediation”. September 10, 2013 Decision and Order , p. 2, n. 2. Defendants ask me to
revisit that decision, arguing that “nearly every confidentiality rule has exceptions”. Defendants’
Redacted Memorandum of Law , p. 10.
Defendants are correct: §5.10(A)(4) of this court’s ADR Plan lists several
exceptions to the confidentiality requirement. However, none of those exceptions are applicable
here. While defendants argue that Cornelius “supports [their] position that this Court should
consider the statements made during mediation” (id., p. 12), that case involved motions “to
enforce a settlement agreement allegedly reached” during mediation, and for “sanctions for
alleged violations of the Plan” (912 F. Supp.2d at 28) - both of which are expressly excluded
from the ADR Plan’s confidentiality obligation. See §§2.3(A), 5.10(A)(4)(d).
Defendants further argue that they “will be exposed to extreme unfairness if the
confidential communication is not considered by the Court. Namely, Defendants will be deemed
to have waived objections to Plaintiff’s discovery requests because Defendants are unable to
show their compelling reason for not responding in a timely fashion”. Defendants’ Redacted
Memorandum of Law , p. 14. I see no unfairness in holding defendants to the provisions of
the ADR Plan, the contents of which they knew (or should have known), as the Plan is readily
accessible on this court’s website.
If a settlement had been actually reached during the mediation on July 9, 2013,
§5.10(A)(4)(d) of the Plan would allow defendants to disclose details of the mediation (if
necessary) in order to enforce that settlement. However, the mediator’s Certification ,
docketed on the day before defendants’ discovery responses were due, stated: “Case has not
settled. Mediation will continue on July 23, 2013”.
In view of that certification, I am unpersuaded by defendants’ assertion that they
were “justified in not responding to Plaintiff’s discovery requests because they were under the
impression that Plaintiffs would be discontinuing this action” (defendants’ Redacted
Memorandum of Law , p. 2). Defendants were on notice that unless and until the case
actually settled, their litigation obligations were not excused by the mediation. See ADR Plan,
§4.1(c) (“The referral of a case to ADR does not delay or defer other dates established in the
Scheduling Order and has no effect on the scheduled progress of the case toward trial”).
“[B]ecause of the importance of the existence and perception of mutual fairness,
confidentiality in mediation and settlement negotiations is critical.” United States v. Erie
County, New York, 2013 WL 4679070, *12 (W.D.N.Y. 2013) (Skretny, J.). “Promising
participants confidentiality in these proceedings promotes the free flow of information that may
result in the settlement of a dispute . . . and protect[s] the integrity of alternative dispute
resolution generally.” In re Teligent, Inc., 640 F.3d 53, 57-58 (2d Cir. 2011).
Defendants have failed to show a basis for me to consider the confidential
mediation communications. They have further admitted that “if the confidential communication
is not considered by the Court . . . Defendants will be deemed to have waived objections to
Plaintiff’s discovery requests”. Defendants’ Redacted Memorandum of Law , p. 14.
Therefore, while defendants’ motion to seal  is granted in part and denied in part, their
motion for reconsideration of my September 20, 2013 Decision and Order (and for a stay of its
effective date)  is denied.3
Dated: October 4, 2013
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
Defendants’ motion for reconsideration raises additional arguments, such as that a
minimal delay in objecting to plaintiff’s discovery demands should be excused. Defendants’ Redacted
Memorandum of Law , p. 15. Since these arguments were not previously raised, they furnish no basis
for reconsideration. Kasper, *1.
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