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HORSEHEAD RESOURCE DEV. CO. v. B.U.S. ENVTL. SERVS

May 16, 1996

HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC., Plaintiff,
v.
B.U.S. ENVIRONMENTAL SERVICES, INC., B.U.S. BERZELIUS UMWELT-SERVICE AG, LOBBERT HOLDING GmbH, ROLF KOLA, JURGEN TIETZ and GUENTER OKON, Defendants.



The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.

 Plaintiff, Horsehead Resource Development Company, Inc. ("Horsehead") has moved for reargument of this Court's Opinion and Order of February 20, 1996 ("Opinion") pursuant to Local Rule 3(j). Specifically, Plaintiff asks the Court to reconsider its decision to dismiss the portion of Plaintiff's complaint asserting a violation of 15 U.S.C. § 78m(d) based on Defendants' failure to disclose in their Schedule 13D Lobbert Holding's majority ownership in B.U.S. Berzelius Umwelt-Service AG ("BUS AG"). See Opinion at 14. Familiarity with the Opinion is assumed. For the reasons stated herein, the motion is granted. Section III.A. of the Opinion is vacated accordingly.

 In addition, Defendants have submitted supplementary evidence in an effort to comply with the Court's directive to either report that certain criminal environmental lawsuits are continuing or "present incontrovertible evidence" that they have been closed without convictions. Because I am satisfied that Defendants have now presented such "incontrovertible evidence," the relevant portion of Plaintiff's complaint is dismissed.

 I. Facts

 Horsehead brought this suit to compel Defendants to "make the full and complete disclosure" in their Schedule 13D filing as required by § 13(d) of the Securities Exchange Act of 1934. After amending their Schedule 13D in response to the suit, Defendants moved to dismiss the complaint as moot pursuant to Fed. R. Civ. P. 12(b)(6). When Horsehead claimed that the amendment failed to "cure" the Schedule 13D's deficiencies, Defendants filed two additional amendments in a further effort to moot the action.

 In its response to the motion to dismiss, Horsehead claimed that the three Schedule 13D amendments did not "cure" the alleged deficiencies for several reasons. Paramount among these was their alleged failure to disclose that Defendant Lobbert Holding held a controlling interest in Horsehead. *fn1"

 On February 20, 1996, the Court issued an Order granting in part and denying in part the Defendants' two motions to dismiss. In particular, the Court held that "based on an analysis of the Amendments and the affidavits, it appears Defendants' disclosures sufficiently satisfy the requirements of § 13 (d)." In reaching this holding, I refused to credit a chart submitted by Plaintiff which was allegedly prepared by an unidentified "leading German investment bank" ("Chart") . Opinion at 11. The Chart represented that the Lobbert family controlled 52.01% of the combined common and preferred stock of BUS AG as of July 1, 1995, well in excess of the proportion disclosed in one of the amendments. I also declined to consider a statement allegedly made by Dieter Lobbert to the effect that the Lobbert Family controlled 52% of the total BUS AG vote ("Admission"). Plaintiff now argues that the Court erroneously dismissed this claim by failing to give proper consideration to the Chart and the Admission.

 II. Standard of Review

 The standards for deciding motions for reargument and motions for reconsideration are the same. In re New York Asbestos Litigation, 847 F. Supp. 1086, 1141 (S.D.N.Y. 1994), aff'd in part, vacated in part on other grounds sub nom., Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003 (2d Cir. 1995); Monaghan v. SZS 33 Assocs., L.P., 153 F.R.D. 60, 65 (S.D.N.Y. 1994). A court should grant the motion "only if the moving party presents [factual] matters or controlling decisions the court overlooked that might materially have influenced its earlier decision." Morser v. AT&T Information Systems, 715 F. Supp. 516, 517 (S.D.N.Y. 1989); see also Violette v. Armonk Assocs., L.P., 823 F. Supp. 224, 226 (S.D.N.Y. 1993). Moreover, a motion for reconsideration may not be used to plug gaps in an original argument (see McMahan & Co. v. Donaldson, Lufkin & Jenrette Securities Corp., 727 F. Supp. 833, 833-34 (S.D.N.Y. 1989)) or "to argue in the alternative once a decision has been made" (see United States v. Reyes, 1993 U.S. Dist. LEXIS 307, 91-C R-56S, 1993 WL 8775, at *1 (W.D.N.Y. Jan. 13, 1993)).

 III. The Majority Shareholder Issue

 
A. The Admissibility of the Chart

 I originally declined to give any weight to the Chart submitted by Plaintiff because there was no representation regarding the source of the information. No evidence was offered as to who prepared the Chart, how the data were collected, and how the ultimate conclusion was reached. In short, Plaintiff only stated that the Chart was prepared by a "leading German investment bank." Because this missing information precluded the admission of the Chart, it was not sufficient to create a material issue of fact.

 The facts surrounding the Chart have now been revealed. According to the Affidavit of William E. Flaherty, Chairman of the Board of Horsehead, dated March 6, 1996 ("Flaherty Aff."), the Chart was prepared by Dresdner Securities (USA) Inc., a unit of Dresdner Bank AG ("Dresdner"), in connection with Dresdner's efforts to find a purchaser for the Lobbert Family's interest in BUS AG. Flaherty Aff. at P 2. Specifically, the Dresdner solicitation points out that "Lobbert Holding GmbH ...


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