McCracken et al v. Verisma Systems, Inc. et al

Filing 150

ORDER denying 132 Motion for Reconsideration. Signed by Hon. Michael A. Telesca on 8/28/18. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANN McCRACKEN; JOAN FARRELL; SARAH
STILSON; KEVIN MCCLOSKEY;
CHRISTOPHER TRAPATSOS; and KIMBERLY
BAILEY, as individuals and as
representatives of the classes,

No. 6:14-cv-06248(MAT)
DECISION AND ORDER

Plaintiffs,
-vsVERISMA SYSTEMS, INC.; UNIVERSITY
OF ROCHESTER; STRONG MEMORIAL
HOSPITAL; and HIGHLAND HOSPITAL,
Defendants.

I.

Introduction
This is a class action by Ann McCracken, Joan Farrell, Sara

Stilson, Kevin

McCloskey,

Christopher

Trapatsos,

and

Kimberly

Bailey (collectively, “Plaintiffs”) against Verisma Systems, Inc.
(“Verisma”), Highland Hospital, Strong Memorial Hospital, and the
University of Rochester (collectively, “the Hospital Defendants”).
Plaintiffs

allege

that

Verisma

and

the

Hospital

Defendants

systematically overcharged patients who requested copies of their
medical records, in violation of New York Public Health Law (“PHL”)
§

18.1

Presently

Reconsideration
Court’s

May

15,

before

the

Court

(“Reconsideration
2017

Decision

is

Verisma’s

Motion”)
and

Order

Motion

for

(ECF

#132)

of

the

(ECF

#100)

denying

1

The statute provides in relevant part that “[t]he provider may impose a
reasonable charge for all inspections and copies, not exceeding the costs
incurred by such provider. . . . However, the reasonable charge for paper copies
shall not exceed seventy-five cents per page.” N.Y. PUBLIC HEALTH L. § 18(2)(e).

Verisma’s Motion for Partial Summary Judgment (ECF #84). Plaintiffs
have filed a Memorandum of Law in Opposition (“Pls.’ Mem.”) (ECF
#134). The Hospital Defendants also have filed a Memorandum of Law
in Opposition (“Hosp. Defs.’ Mem.”) (ECF #135). Verisma filed a
Response in Support of the Reconsideration Motion (“Response”) (ECF
#137). For the reasons discussed below, the Reconsideration Motion
is denied without prejudice.
II.

Discussion
A.

Standard for Granting Reconsideration

Federal

Rule

of

Civil

Procedure

54(b)

(“Rule

54(b)”)

“provides, in relevant part, that, prior to entry of a final
judgment, an interlocutory ‘order or other form of decision is
subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all
the parties.’” Official Comm. of Unsecured Creditors of Color Tile,
Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)
(“Color Tile”) (quoting FED. R. CIV. P. 54(b)). The Second Circuit
has “limited district courts’ reconsideration of earlier decisions
under Rule 54(b) by treating those decisions as law of the case,
which gives a district court discretion to revisit earlier rulings
in the same case[.]” Id. There is a significant caveat, however:
“[W]here litigants have once battled for the court’s decision, they
should neither be required, nor without good reason permitted, to
battle for it again.” Zdanok v. Glidden Co., 327 F.2d 944, 953
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(2d Cir. 1964). Thus, non-final or interlocutory decisions “may not
usually be changed unless there is ‘an intervening change of
controlling law, the availability of new evidence, or the need to
correct a clear error or prevent a manifest injustice.’” Color
Tile, 322 F.3d at 167 (quoting Virgin Atl. Airways, Ltd. v. Nat’l
Mediation

Bd., 956

F.2d

1245,

1255

(2d

Cir.

1992)

(internal

quotation marks omitted in original)).
B.

Verisma Has Not Cited “Controlling Law” in Support of
Reconsideration

The only decision Verisma has cited in support of its argument
that

reconsideration

is

justified

based

on

a

district

court

decision out of the Southern District of New York. See Verisma’s
Memorandum of Law (“Verisma’s Mem.”) (ECF #132-2) at 3–4 (citing
Ruzhinskaya v. HealthPort Techs., LLC, 291 F. Supp.3d 484, 498
(S.D.N.Y. Mar. 14, 2018) (holding “that, under [PHL] § 18, an
entity other than a health care provider is not liable for charging
for its services in connection with records requests more than its
costs incurred.”), appeal docketed as Spiro, et al. v. Healthport
Technologies, LLC, No. 18-1034 (2d Cir. Apr. 11, 2018).
Plaintiffs and the Hospital Defendants argue that a district
court decision cannot be “controlling law” for purposes of Rule
54(b). See Pls.’ Mem. at 4-5; Hosp. Defs.’ Mem. at 2-3. Verisma
counters by rephrasing the

reconsideration standard as being

warranted when a party points to “a controlling or significant

-3-

change in the law.” Verisma’s Mem. at 4 (citing Moog, Inc. v.
United States,

No.

MISC.

CIV-90-215E,

1991 WL

255371,

at

*1

(W.D.N.Y. Nov. 21, 1991) (quoting Above the Belt, Inc. v. Mel
Bohannan

Roofing,

Inc.,

99

F.R.D.

99,

101

(E.D.

Va.

1983))

(emphasis added)). Verisma contends that the March 2018 Ruzinskaya
decision is “significant” and therefore warrants reconsideration.
As Plaintiffs point out, the “or significant” language on which
Verisma relies originated in an out-of-district, out-of-circuit
case and does not articulate the proper standard in this Circuit.
Above the Belt, Inc., a decades-old Virginia district court case
which was not appealed, does not cite any precedent for its
phrasing of the reconsideration standard. See Above the Belt, Inc.,
99 F.R.D. at 101.
The

Second

Circuit,

when

considering

motions

for

reconsideration, has repeatedly described the test as whether there
has been an intervening change in “controlling” law.
Cty.

Strip

Search

Cases,

639

F.

App’x

746,

In re Nassau

749

(2d

Cir.)

(unpublished opn.) (“[T]he dispositive word from the Rule 54(b)
framework described above is ‘controlling.’”), cert. denied sub
nom. Nassau Cty. Sheriff’s Dep’t, Div. of Correction v. Augustin,
137 S. Ct. 313 (2016); Doe v. New York City Dep’t of Soc. Servs.,
709 F.2d 782, 789 (2d Cir. 1983) (“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
-4-

or prevent manifest injustice.’”) (quoting 18 C. Wright, A. Miller
& E. Cooper, Federal Practice and Procedure § 4478, at 790 (1981)
(footnote omitted in original)) (quoted in Cox v. Donnelly, 432
F.3d 388, 390 (2d Cir. 2005)).
Furthermore, it is established beyond debate that district
courts are “bound by the decisions of the Supreme Court of the
United States and those of the Circuit Court of Appeals in their
own circuit, but are not bound by those of a federal court of
co-ordinate jurisdiction, or even the decisions of a federal
Circuit Court of Appeals in another circuit.” Cont’l Sec. Co. v.
Interborough Rapid Transit Co., 165 F. 945, 959–60 (C.C. S.D.N.Y.
1908); see also Blair v. Deboo, No. CIV.A. 304CV1357CFD, 2004 WL
3052022,

at

*2

(D.

Conn.

Dec.

30,

2004)

(district

court

in

Connective stated that it “is not bound by the decisions of any
courts other than the Second Circuit Court of Appeals and the
United States Supreme Court”) (citing 18 Moore’s Federal Practice
§ 134.02[2] (“The decisions of the court of appeals for one circuit
are not binding upon the courts of appeal for other circuits”);
other citations omitted). It necessarily follows that a district
court

decision

cannot

constitute

an

intervening

change

of

controlling law sufficient to warrant reconsideration. See, e.g.,
Langsam v. Vallarta Gardens, No. 08 CIV.2222(LAP), 2009 WL 2252612,
at *2 (S.D.N.Y. July 28, 2009) (district judge in Southern District
of New York stated that “[c]ontrolling decisions include decisions

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from the United States Court of Appeals for the Second Circuit;
they do not include decisions from other circuits or district
courts, even courts in the Southern District of New York”) (citing
Ades v. Deloitte & Touche, 843 F. Supp. 888, 892 (S.D.N.Y. 1994);
Boatswain v. New York, No. 12-CV-6078 SLT MDG, 2013 WL 129330, at
*1 (E.D.N.Y. Jan. 7, 2013) (finding that “neither the report and
recommendation [of a Vermont magistrate judge] nor the district
court order adopting it are controlling upon” a district court in
the Eastern District of New York) (citing Herman Miller, Inc. v.
Worth Capital, Inc., No. 97 Civ. 7878(SAS), 1998 WL 226202, at *1
(S.D.N.Y. May 4, 1998) (“The decision of a fellow district court is
not

a

‘controlling’

one”

for

the

purposes

of

a

motion

for

reconsideration)).
Even

assuming

arguendo

that

the

March

2018

Ruzhinskaya

district court decision potentially could qualify as “controlling
law” for purposes of reconsideration, the fact that the case is
currently

on

inappropriate

appeal

to

the

Second

Circuit

renders

it

an

basis on which to overturn this Court’s previous

decision.
III. Conclusion
For

the

foregoing

reasons,

Verisma’s

Motion

for

Reconsideration is denied. However, the Second Circuit in the
Ruzhinskaya appeal eventually may reach a conclusion contrary to
that reached by this Court on the proper interpretation of the
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scope of PHL § 18. Therefore, the denial of reconsideration is
without prejudice.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

August 28, 2018
Rochester, New York

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