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CHRYSLER CAPITAL CORP. v. CENTURY POWER CORP.

September 4, 1992

CHRYSLER CAPITAL CORPORATION, CILCORP LEASE MANAGEMENT INC., MWR CAPITAL, INC., NORTHERN LEASING COMPANY, INC., and U S WEST FINANCIAL SERVICES, INC., Plaintiffs, against CENTURY POWER CORPORATION, TUCSON ELECTRIC POWER COMPANY, CATALYST ENERGY CORPORATION, and SAN DIEGO GAS & ELECTRIC COMPANY, Defendants.

Patterson, Jr.


The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

ROBERT P. PATTERSON, JR., U.S.D.J.

 BACKGROUND

 This action arises from a December 31, 1986 transaction involving the sale and leaseback of an electric generating plant and certain other utility facilities. The facts underlying that transaction, the events leading to this lawsuit, and the procedural history of this matter are set forth in detail in the June 24 Opinion and in the Court's other opinions in this action, familiarity with which is presumed. See Chrysler Capital Corp. v. Century Power Corp., 778 F. Supp. 1260 (S.D.N.Y. 1991); Philip Morris Capital Corp. v. Century Power Corp., No. 91 Civ. 1937, 1992 U.S. Dist. LEXIS 5601 (S.D.N.Y. Apr. 23, 1992).

 The June 24 Opinion addressed San Diego's motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiffs' claims alleging violations of the blue-sky laws of Arizona, Connecticut, Iowa, and Oregon. With regard to Plaintiffs' claim under Arizona law, the Court relied on Arizona Corp. Comm'n v. Media Products, Inc., 158 Ariz. 463, 763 P.2d 527, 529 (Ariz. Ct. App. 1988), and ruled that Plaintiffs stated a claim for violation of Ariz. Rev. Stat. ("A.R.S.") § 44-1991. San Diego now moves for reargument of this ruling.

 DISCUSSION

 To be entitled to reargument under Rule 3(j), the party seeking reargument "must demonstrate that the court overlooked controlling decisions or factual matters that were put before the court on the underlying motion." Novak v. Nat'l Broadcasting Co., Inc., 760 F. Supp. 47, 48 (S.D.N.Y. 1991). The purpose of the rule is "to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988). Accordingly, the party seeking reargument "is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use Rule 3(j) to advance new facts and theories in response to the court's rulings." McMahan & Co. v. Donaldson, Lufkin & Jenrette Securities Corp., 727 F. Supp. 833, 833 (S.D.N.Y. 1989).

 In seeking reargument of this motion, San Diego does not point to any controlling decisions or factual matters which this Court overlooked in the June 24 Opinion. Rather, San Diego contends that the Court misinterpreted Media Products, and it provides new precedent and argument in support of its position. San Diego does, however, press its argument that application of the Arizona statute would constitute a violation of the Commerce Clause, an argument which the Court did not address in the June 24 Opinion. Accordingly, the Court proceeds to address San Diego's contentions.

 I. THE JUNE 24 OPINION

 The anti-fraud provision of the Arizona blue-sky law provides:

 It is fraudulent practice and unlawful for a person, in connection with a transaction or transactions within or from this state, involving an offer to sell or buy securities, or a sale or a purchase of securities . . . directly or indirectly to do any of the following:

 1. Employ any device, scheme or artifice to defraud.

 2. Make any untrue statement of material fact, or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.

 3. Engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit.

 In so ruling, the Court relied upon Media Products, wherein identical language in the registration provision of the Arizona blue-sky law, A.R.S. § 44-1841, *fn2" was interpreted to apply to a sale of securities by a foreign corporation whose base of operations was in Arizona. In Media Products, the court determined that the securities were offered or sold "from" Arizona, even though:

 (i) all of the sales activities were conducted by out-of-state broker-dealers in states other than Arizona,

 (ii) the offers to purchase were made and accepted out-of-state, and (iii) no sale or offer of sale was made to any resident of Arizona.

 Media Products, 763 P.2d at 529. The Media Products court based its ruling on the trial court's finding that the corporation had performed "more than ministerial" actions from its base of operations in Arizona. Id. at 529.

 This Court found that the transaction was also "from" Arizona, reasoning, "Where the issuer of the securities is incorporated in and has its principal place of business in Arizona, the securities must have been offered or sold 'from' Arizona." Chrysler Capital, 1992 U.S. Dist. LEXIS 9187, at*8. Accordingly, the Court rejected San Diego's ...


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