The opinion of the court was delivered by: EDELSTEIN
Edelstein, District Judge:
Defendant F.M.C. Corp., Peerless Pump Division, ("FMC") has moved for summary judgment pursuant to Fed. R. Civ. P. 56(b). For the reasons set forth below, defendant's motion is granted.
On November 9, 1982, Blythe Industries, Inc. and Vanguard Construction Corp. ("plaintiffs"), commenced this action against FMC for $49,449.00 in losses allegedly caused by defects in certain effluent pumping systems. The systems were supplied by FMC to plaintiffs' predecessor in interest, Blythe-Vanguard Construction Corp. ("Blythe-Vanguard") for use during construction of additions to the Puerto Rico Nuevo Sewage Treatment Plant ("The Project").
In a subsequently filed action before Judge Knapp, Peerless Pump v. Blythe-Vanguard Construction Corporation and Richard A. Tunstead, 83 Civ. 3166 (WK) (S.D.N.Y. filed April 25, 1983), Peerless Pump, a division of Thyssen-Bornemisza, Inc. ("Peerless-TBI"), sought to recover $18,711.00 from plaintiffs' assignors, Blythe-Vanguard,
for two impellers, components of the effluent pumping systems they supplied Blythe-Vanguard for use during The Project. Blythe-Vanguard counterclaimed in the suit before Judge Knapp for $49,449.00, the exact amount plaintiffs seek in the complaint before this court, for damages caused by defects in the effluent pump systems.
FMC, the defendant herein, sold its Peerless Pump division to the Indian Head subsidiary of TBI, the plaintiff in the case before Judge Knapp, in July of 1976. For purposes of this motion and of adjudicating any liability owing to plaintiffs, FMC and Peerless-TBI are the same. See Plaintiffs' Response to Defendant's Rule 3(g) statement, submitted March 11, 1985 ("Plaintiffs' Rule 3(g) Statement"), at P3.
On September 27, 1983, FMC moved in this action for dismissal of the complaint, pursuant to Fed. R. Civ. P. 12(c) or, alternatively, for summary judgment, pursuant to Fed. R. Civ. P. 56(b), on the ground that plaintiffs' claims were barred by the statute of limitations. On March 29, 1984, this court denied FMC's motion on the ground that the court needed a fuller record to determine the applicable statute of limitations.
On January 15, 1985, Judge Knapp dismissed Blythe-Vanguard's counterclaim against Peerless-TBI as barred by the statute of limitations. Judge Knapp held that the transaction for the effluent pumping systems involved the sale of goods, for which the applicable statute of limitations is four years under New York's Uniform Commercial Code § 2-725. Blythe-Vanguard has not appealed this decision, Plaintiffs' Rule 3(g) Statement at P5, and, because judgment was entered on February 20, 1985, the time to appeal has expired. On February 27, 1985, FMC moved this court for an order, pursuant to Fed. R. Civ. P. 56, dismissing the complaint as barred by the statute of limitations. FMC contends that plaintiffs are collaterally estopped from rearguing the merits of the statute of limitations question.
As a preliminary matter, the court's March, 1984 determination that it needed a fuller factual record to determine which statute of limitations applies does not now bind the court to deny the motion for summary judgment. The law of the case doctrine is not a limit on the court's power, but merely expresses the practice of courts generally to refuse to reopen what has been decided. Erie Conduit Corp. v. Metropolitan Asphalt Paving Ass'n, 560 F. Supp. 305, 307 (E.D.N.Y. 1983). As the Court of Appeals for the Second Circuit has held, a district court judge always has the power to change a previous ruling which denied a motion for summary judgment. Corporacion De Mercadeo Agricola v. Mellon Bank, 608 F.2d 43, 48 (2d Cir. 1979). In this case, the court now has the benefit of the fuller factual record developed by Judge Knapp on the same issue between virtually the same parties. Moreover, in view of the intervening authority embodied by Judge Knapp's opinion, the court is justified in reconsidering its earlier determination.
Given that the court is not bound by its previous ruling denying the motion for summary judgment, the next question is whether plaintiffs are collaterally estopped from relitigating the merits of the statute of limitations question reached by Judge Knapp. Under the doctrine of collateral estoppel, once an issue of law or fact is resolved against a party by a court, that party, or one in privity with that party, generally may not relitigate the matter in another lawsuit. LaRocca v. Gold, 662 F.2d 144, 148 (2d Cir. 1981). Although the disposition of Blyth-Vanguard's claim by Judge Knapp was by summary judgment based on affidavits, rather than a full trial, his decision nonetheless may have res judicata or collateral estoppel effect. Jackson v. Hayakawa, 605 F.2d 1121, 1125 n.3 (9th Cir. 1979), cert. denied, 445 U.S. 952, 63 L. Ed. 2d 787, 100 S. Ct. 1601 (1980); in re Falstaff Brewing Corp. Antitrust Litig., 441 F. Supp. 62, 66 (E.D. Mo. 1977). For plaintiffs to be precluded, FMC must establish the following: (1) plaintiffs were a party or in privity with a party to the action before Judge Knapp; (2) Judge Knapp made a final determination on the merits of the statute of limitations issue; (3) the statute of limitations issue was necessary, material and essential to the outcome of the prior action; (4) the issue in this suit is identical to the issue actually determined by Judge Knapp; and (5) plaintiffs had a full and fair opportunity to contest the issue before Judge Knapp. See Montana v. United States, 440 U.S. 147, 153-55, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979); LaRocca v. Gold, 662 F.2d 144, 148 (2d Cir. 1981); Weiss v. Feigenbaum, 558 F. Supp. 265, 275 (E.D.N.Y. 1982).
Plaintiffs contend that the issue decided by Judge Knapp is not identical to the issue presently before this court, because the facts are different. Plaintiff asserts: "In the case before Judge Knapp, the purchase order issued by Blythe-Vanguard to Peerless-TBI was for replacement units only. The contract between Blythe-Vanguard and FMC [the defendant herein] and the purchase order issued by Blythe-Vanguard to Peerless-TBI are separate and distinct transactions to which different statutes of limitations apply." Affidavit of Jonah Grill, submitted March 11, 1985, at P4.
Under Rule 56(c), the burden is on FMC, the moving party, to show that no genuine issue of fact exists. However, plaintiffs, the non-moving party, "may not rest on mere conclusory allegations to show that an issue exists which should be resolved at trial." Taylor v. Mayone, 574 F. Supp. 609, 612 (S.D.N.Y. 1983). Because FMC has not sufficiently supported its contention that there were separate transactions in this case, nor has it stated any reason why a different statute of limitations should apply even if this is a "separate transaction," the court rejects FMC's opposition to the motion for summary judgment. Based on the statements submitted by the parties pursuant to local rule 3(g), the affidavits, memoranda and the proceedings herein, the court finds no disputed issue of material fact and further finds that the statute of limitations issue before Judge Knapp is "identical" to the issue presently before this court.
As noted above, FMC earlier moved to dismiss plaintiffs' claims in this action on the ground that they are time-barred. In opposition to the motion, plaintiffs submitted the affidavit of Edward P. Meehan, Vice President of plaintiff Vanguard Construction Corp. and former Sub Treasurer of Blythe-Vanguard. Affidavit of Edward P. Meehan, submitted September 22, 1983 ("Meehan Affidavit I"). Mr. Meehan had overall responsibilities for The Project and was to be plaintiffs' chief witness at trial. See Joint Pre-Trial Order, submitted June 25, 1984 at 5. In a section of the affidavit designated "fact chronolgy," Mr. Meehan sets forth the facts surrounding plaintiffs' claims against FMC for the defective effluent pumping systems. Meehan Affidavit I at PP3-18. Blythe-Vanguard submitted an identical affidavit in opposition to the motion before Judge Knapp to dismiss Blythe-Vanguard's claims as time barred. Affidavit of Edward P. Meehan, submitted January 6, 1984, Peerless Pump v. Blythe-Vanguard Construction Corp., 83 Civ. 3166 (WK) (S.D.N.Y. filed April 25, 1983) ("Meehan Affidavit II"). The "fact chronologies" contained in the two affidavits are identical. See Meehan Affidavit II at PP2-20; see also Reply Affidavit of Edward P. Meehan, submitted September 30, 1983, at PP3-4 (setting forth additional facts relevant to the statute of limitations question that are identical to the facts set forth at paragraphs 18-19 of Meehan Affidavit II). Plaintiffs' counsel's conclusory allegation that the transactions are materially different is insufficient to overcome the overwhelming evidence that the transactions at issue in the two cases are the same. Mr. Meehan's "fact chronology" does not delineate two separate transactions. Nor does he ...