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WALSH v. MCGEE

March 4, 1996

HELENA WALSH (as representative of Sister MARY HOGAN, deceased), MARGARET TOSCANO, ALBERT HAYS, CHARLES BECKER, VIRGINIA CONGRO, SERAFINO GIANNOLA, JULIA GOLD (as representative of MORRIS GOLD, deceased), MICHAEL GRANELLI, MARY O'CONNOR, CHARLES PASCARELLA (as representative of MARGARET PASCARELLA), JAMES SACCARDI, and RICHARD JANIK, Plaintiffs, against JOHN MCGEE, WILLIAM C. WOODSON, LOUIS SULLIVAN, WILLIAM TOBY, and EMPIRE BLUE CROSS AND BLUE SHIELD, Defendants.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge:

 Plaintiffs, Medicare Part B claimants, have moved for reargument of the motions decided by this Court in its October 11, 1995, Opinion & Order in Walsh v. McGee, 899 F. Supp. 1232 (S.D.N.Y. 1995) ("1995 Opinion"), pursuant to Rule 3(j) of the United States District Courts for the Southern and Eastern Districts of New York Joint Rules for Civil Proceedings ("Local Rule 3(j)"). Defendants, Medicare Part B administrators, oppose this motion. (Walsh v. McGee, 89 Civ. 1310, Memorandum of Law in Opposition to Plaintiff's Motion for Reargument and Reconsideration ("Defendants' Memo") (Oct. 26, 1995).) For the reasons discussed below, plaintiffs' motion is denied.

 In the action underlying the instant motion to reargue, plaintiffs alleged that defendants mishandled plaintiffs' respective Medicare Part B claims, and, consequently, violated plaintiffs' respective procedural due process rights under the Fifth Amendment to the United States Constitution. Walsh, 899 F. Supp. at 1234. Plaintiffs asserted that this Court had jurisdiction over their claims pursuant to the federal question statute, 28 U.S.C. § 1331, the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and the federal mandamus statute, 28 U.S.C. § 1361. Id. Defendants responded to plaintiffs' claims by moving to dismiss plaintiffs' case for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1). Id. This Court's 1995 Opinion granted defendants' motion to dismiss because this Court found that it lacked jurisdiction to consider plaintiffs' claims under any of the statutes that plaintiffs' cited. Id. at 1237-38.

 Plaintiffs advance two points in support of the instant motion. First, plaintiffs contend that the instant motion should be granted because plaintiffs claim that this Court overlooked "its own earlier opinion which firmly declared that plaintiffs have stated a claim for violation of procedural due process. . . ." (Plaintiff's Memorandum in Support of Motion for Reargument and Reconsideration (Plaintiff's Memo") 2 (Oct. 19, 1995).) Plaintiffs explain that when plaintiffs first filed this case, the Government moved to dismiss the case for failure to state a claim on which relief may be granted, pursuant to Rule 12(b)(6). Id. ; see October 30, 1991, Order, Walsh v. McGee, 89 Civ. 1310 ("1991 Order"). In response to this motion, this Court found that plaintiffs' allegations were "sufficient to state a violation of procedural due process, which is a claim upon which this Court may grant relief," and this Court denied defendants' motion to dismiss. Id.

 According to plaintiffs' interpretation of the above-quoted language, this Court's 1991 Order acknowledged that "this Court plainly has jurisdiction over Constitutional claims arising under Part B of the Medicare Act." (Plaintiffs' Memo at 2.) Plaintiffs continue that "it is therefore the law of the case that plaintiffs have stated a claim for relief based on a substantial claim for violation of procedural due process," which is "undeniably sufficient to confer federal jurisdiction over plaintiffs' claims. . . ." Id. at 4 (emphasis in original). They conclude that this Court's 1995 Opinion "totally overlooks and neglects" this Court's 1991 Order, and that this oversight merits reargument pursuant to Local Rule 3(j). Id. at 3-4.

 Second, plaintiffs assert that this Court's 1995 Opinion unfairly criticized plaintiff's counsel. Id. at 2, 5. Plaintiffs highlight a portion of the 1995 Opinion in which this Court noted that plaintiffs' counsel failed to cite relevant case law in support of his argument that this Court had federal question jurisdiction over plaintiffs' claims, and he failed to distinguish the case law that defendants cited in support of defendants' motion to dismiss for lack of subject matter jurisdiction. Id. at 5-6. In response to this Court's criticism, plaintiffs' counsel proffers two explanations: (1) he "relied on the Court's earlier decision which made clear that [none of the case law upon which the Court relied in its 1995 Opinion] was relevant," id. at 5; and (2) he cited one case twice--once in a footnote in plaintiffs' Reply Brief, "in connection with the issue of mandamus, in response to defendant's reliance on that decision," id. at 5-6, and once in plaintiffs' 1989 memorandum in opposition to defendants' motion to dismiss pursuant to Rule 12(b)(6). Id. at 5-6. Plaintiffs conclude that this Court overlooked plaintiffs' aforementioned citations, that this Court's "personal criticism of plaintiffs' counsel is patently unfair," and that this Court therefore should grant plaintiffs' motion to reargue. Id. at 5-6.

 In response to plaintiffs' claims, defendants advance three counterarguments. First, defendants characterize plaintiffs' claim that this Court "overlooked" its previous order as "mistaken," because "there is no inconsistency between the Court's two orders." (Defendants' Memo at 2.) Defendants inform the Court that at the time defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted, pursuant to Rule 12(b)(6), defendants neither raised a jurisdictional challenge to plaintiffs' complaint, id. at 6, nor moved to dismiss plaintiffs' complaint for lack of jurisdiction. Id. at 2. Defendants continue, however, that when the parties subsequently cross-moved for summary judgment, defendants did raise the defense of lack of subject matter jurisdiction, pursuant to Rule 12(b)(1). Id. at 3. Defendants thus argue that this Court's 1991 Order and 1995 Opinion are not inconsistent because they addressed different elements of plaintiffs' complaint at different stages of this Court's proceedings. Id. at 2, 4, 6.

 Second, defendants maintain that even if there is an inconsistency between the Court's two orders, plaintiffs' law of the case argument is flawed for two reasons. Defendants assert that the law of the case doctrine is inapplicable to questions of subject matter jurisdiction. Id. at 5. They maintain that this Court had an obligation to dismiss plaintiffs' case whenever this Court became aware that it lacked subject matter jurisdiction, regardless of any prior ruling. Id. at 5-6. Consequently, defendants conclude that even if the 1991 Order and the 1995 Opinion were inconsistent, "the Court did not abuse its discretion in holding that it lacked jurisdiction . . ." in its 1991 Opinion. Id. at 5.

 In addition, defendants contend that the law of the case doctrine is applicable only to issues previously placed before the court. According to defendants, plaintiffs did not raise the argument that the law of the case doctrine foreclosed defendants' jurisdictional challenge in the papers plaintiffs' submitted on the underlying cross-motions for summary judgment. Id. at 3. Consequently, defendants argue that plaintiffs are not entitled to raise their law of the case claim for the first time in their Local Rule 3(j) motion. Id. at 3-4.

 Finally, defendants briefly address plaintiffs' objection regarding this Court's criticism of plaintiffs' counsel. According to defendants, "this question has no impact on the merits of this motion," because plaintiffs have failed to explain why the relevant Medicare Part B case law does not foreclose their challenge. Id. at 6 n.1.

 DISCUSSION

 Plaintiff's predicate their motion to reargue the issues decided by this Court in its 1995 Opinion on Local Rule 3(j). Local Rule 3(j) states in relevant part that "there shall be served with the notice of motion [for reargument] a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked."

 In order to succeed on a motion to reargue under Local Rule 3(j), the moving party must demonstrate that the Court overlooked the controlling decisions or factual matters that were put before the Court in the underlying motion. In re Houbigant, Inc., No. 95 CIV. 2467, 1996 U.S. Dist. LEXIS 451, 1996 WL 34128, *3 (S.D.N.Y. Jan. 17, 1996); Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993); Fulani v. Brady, 149 F.R.D. 501, 503 (S.D.N.Y. 1993), aff'd, 35 F.3d 49 (2d Cir. 1994); East Coast Novelty Co. v. City of New York, 141 F.R.D. 245, 245 (S.D.N.Y. 1992). As such, a Local Rule 3(j) motion "may not advance new facts, issues, or arguments not previously presented to the court." Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., No. 86 CIV 6447, 1989 WL 1623165, at *3 (S.D.N.Y. Aug. 4, 1989). Local Rule 3(j) "is narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been fully considered by the court." Ameritrust, 151 F.R.D. at 238; see Houbigant, 1996 U.S. Dist. LEXIS 451, *10, 1996 WL 34128 at *3; Caleb & Co. v. E.I. DuPont De Nemours & Co., 624 ...


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