Plaintiffs" could establish the element of scienter or knowledge. (DLJ
Reply Brief at 49-54.) In this discussion, DLJ referenced various
arguments raised in the ABF Plaintiffs' SJ Brief, and cited the relevant
page numbers, but did not cite to the section of the ABF Plaintiffs' Brief
dealing with the Quartz Motion. (See id.) DLJ also reiterated that it was
joining in an argument made by Kidder that the plaintiffs lacked standing
to assert a fraudulent maintenance claim, which was an argument that went
to all of the plaintiffs in the Investor Actions. (Id. at 49.)
The holding that Providian's claim is time-barred was based on the
finding that Providian is located in Pennsylvania and, therefore, that
the two-year Pennsylvania statute of limitations applies. See Primavera,
at 517-19. In DLJ's Rule 56.1 statement, DLJ stated as an undisputed fact
that Providian is located in Louisville, Kentucky.
On February 22, 2001, DLJ filed the instant motion for
reconsideration, which pertains to the ABF Action and the Primavera
Action. The ABF Plaintiffs submitted an opposition brief; and the
Primavera Plaintiffs submitted a notice of joinder in the ABF Plaintiffs'
opposition. The matter was marked fully submitted on March 28, 2001.
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."
Local Civ. R. 6.3. 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. 1992).
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. AT & T Info. Sys.,
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. a 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).
Upon receiving such a motion, a court may do any of the following.
First, the motion may be denied, thereby leaving the original decision
unaltered. See Lehmuller v. Incorporated Village of Sag Harbor,
982 F. Supp. 132, 135 (E.D.N.Y. 1997). Alternatively, "the Court can
grant a motion to reargue for the limited purposes of considering the
effect of an overlooked matter," and after doing so may affirm and/or
clarify the original decision. Lehmuller, 982 F. Supp. at 135-36; See In
re First American Corp., No. M8-85, 1998 WL 148421, at *3 (S.D.N.Y. Mar.
27, 1998), aff'd, 154 F.3d 16 (2d Cir. 1998); Violette v. Armonk
Assocs., L.P., 823 F. Supp. 224, 226-27, 231 (S.D.N.Y. 1993): Brignoli
v. Balch Hardy & Scheinman, Inc., 735 F. Supp. 100, 102-03 (S.D.N.Y.
1990). Finally, having granted a motion to reconsider,
the Court may vacate the original decision. See Morin v. Trupin,
823 F. Supp. 201, 203 (S.D.N.Y. 1993); Travelers Ins. Co. v. Buffalo
Reins, Co., 739 F. Supp. 209, 211-13 (S.D.N.Y. 1990).
II. Application of The Standard
A. DLJ Is Entitled To An Order of Summary Judgment As To The
DLJ contends that the Court overlooked the fact that it had expressly
joined in Kidder's Statute of Limitations Motion, and that there are no
factual or legal distinctions between DLJ and Kidder, so that DLJ is also
entitled to summary judgment against the Time-Barred Plaintiffs. These
plaintiffs contend that the various indications by DLJ as to its joinder
in Kidder's motions were procedurally insufficient to constitute actual
joinder in the Statute of Limitations motion. In addition, Providian
maintains that DLJ is estopped from obtaining summary judgment against it
on statute of limitations grounds because DLJ "affirmatively conceded" in
its Rule 56.1 statement that Providian was located in Louisville,
Kentucky, and Providian's claim would not be barred under the Kentucky
statute of limitations.