The opinion of the court was delivered by: Robert W. Sweet, District Judge.
Defendant Atlas Turner, Inc. ("Atlas Turner") has moved
pursuant to Local Rule 6.3 or reconsideration and reargument of
this Court's opinion dated May 18, 2000 (the "May 18 Opinion").
Defendant Fibreboard Corporation ("Fibreboard") seeks an order
granting clarification or, in the alternative, reconsideration of
that portion of the May 18 Opinion which reaffirmed the Court's
November 5, 1998 order (the "November 5 Order") setting aside the
jury's verdict regarding the allocation of fault.*fn1 The
motions are opposed by plaintiff Linda Hamilton ("Hamilton"),
individually and as executrix of the estate of George Hamilton.
For the reasons set forth below, the motion by Atlas Turner is
denied, and the motion by Fibreboard is denied in part and
granted in part.
The proceedings leading up to the May 18 Opinion are set forth
therein, familiarity with which is presumed. See Hamilton v.
Garlock, Inc., 96 F. Supp.2d 352 (S.D.N.Y. 2000). In that opinion
the Court denied Atlas Turner's motion to set aside the verdict
rendered against it, pursuant to Federal Rule of Civil Procedure
50, or for a new trial, pursuant to Federal Rule of Civil
Procedure 59. See id.
Atlas Turner's motion was filed on June 5, 2000, and submissions
were received through July 19, 2000, at which time the matter was
deemed fully submitted.*fn2 Fibreboard's motion was filed on
June 5, 2000, and submissions were received through August 2,
2000, at which time the matter was deemed fully submitted.
I. The Standard Under Local Rule 6.3
Local Rule 6.3 provides in pertinent part: "There shall
be served with the notice of motion a memorandum setting forth
concisely the matters or controlling decisions which counsel
believes the court has overlooked." Thus, to be entitled to
reargument and reconsideration, the movant must demonstrate that
the Court overlooked controlling decisions or factual matters that
were put before it on the underlying motion. See Ameritrust Co.
Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993); East Coast
Novelty Co. v. City of New York, 141 F.R.D. 245, 245 (S.D.N Y
Local Rule 6.3 is to be narrowly construed and strictly applied
so as to avoid repetitive arguments on issues that have been
considered fully by the court. In deciding a reconsideration and
reargument motion, the court must not allow a
party to use the
motion as a substitute for appealing from a final judgment. See
Morser v. A.T. & T Information Systems, 715 F. Supp. 516, 517
(S.D.N.Y. 1989); Korwek v. Hunt, 649 F. Supp. 1547, 1548
(S.D.N.Y. 1986), aff'd, 827 F.2d 874 (2d Cir. 1987). Therefore, a
party may not "advance new facts, issues or arguments not
previously presented to the Court." Morse/Diesel, Inc. v.
Fidelity & Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N Y
1991). The decision to grant or deny the motion is within the
sound discretion of the district court. See Schaffer v. Soros,
No. 92 Civ. 1233, 1994 WL 592891, at *1 (S.D.N.Y. Oct. 31, 1994).
A. Atlas Turner's Motion For Reconsideration
The first ground upon which Atlas Turner seeks reconsideration
is its contention that the Court did not address the Buy American
Act, which Atlas Turner avers should have been charged to the
jury. First, in its original motion, although Atlas Turner
asserted as a fact that the Court did not instruct the jury on
the Buy American Act, it did not assert that this was in error or
set forth any basis for such an argument. For example, although
Atlas Turner now contends that, in light of the Buy American Act,
the Court should conclude as a matter of law that Atlas Turner's
products could not have been approved or used at a federal
shipyard, the Rule 50 portion of its earlier motion nowhere
mentioned the Buy American Act.*fn3 Therefore, there is no
controlling matter or authority put before the Court which has
been overlooked, and denial of this portion of the motion for
reconsideration is warranted on this ground alone. Second, Atlas
Turner's Buy American Act argument in substance simply reiterates
the contentions it made in its earlier motion regarding the
Court's evidentiary rulings at trial*fn4 and the sufficiency of
the evidence. The Court considered and rejected these contentions
in its May 18 Opinion.
The second ground upon which Atlas Turner seeks reconsideration
is its contention that the Court improperly set aside the jury's
allocation of fault in its order of November 5, 1998.*fn5 Atlas
Turner fails to identify a controlling matter or authority put
before the Court which was overlooked in the May 18 Opinion. On
the contrary, the authority to which Atlas Turner points, In re
Asbestos Litigation (Greff, et al), 986 F. Supp. 761 (F. Supp.
1997), was considered and relied upon both in the November 5
Order and in the May 18 Opinion. Atlas Turner also reiterates its
arguments regarding the burden of proof, which arguments ...