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PRIMAVERA FAMILIENSTIFUNG v. ASKIN

April 10, 2001

PRIMAVERA FAMILIENSTIFUNG, PLAINTIFFS,
V.
DAVID J. ASKIN, ET AL., DEFENDANTS. ABF CAPITAL MANAGEMENT, ET AL., PLAINTIFFS, V. ASKIN CAPITAL MANAGEMENT, L.P., ET AL., DEFENDANTS. MONTPELLIER RESOURCES LIMITED, ET AL., PLAINTIFFS, V. ASKIN CAPITAL MANAGEMENT, L.P., ET AL., DEFENDANTS. RICHARD JOHNSTON, AS TRUSTEE FOR THE DEMETER TRUST, ET AL., PLAINTIFFS, V. ASKIN CAPITAL MANAGEMENT, L.P., ET AL., DEFENDANTS. BAMBOU INC., ET AL., PLAINTIFFS, V. DAVID J. ASKIN, ET AL., DEFENDANTS. AIG MANAGED MARKET NEUTRAL FUND, ET AL., PLAINTIFFS, V. ASKIN CAPITAL MANAGEMENT, L.P., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

The Parties

The parties to the ABF and Primavera Actions are set forth in ABF Capital Mgmt. v. Askin Capital Mgmt.,L.P., 957 F. Supp. 1308 (S.D.N.Y. 1997) and Prmivera Familienstiftung v. Askin, 178 F.R.D. 405 (S.D.N.Y. 1998), familiarity with which is presumed.

Background

The Summary Judgment Opinion inter alia granted summary judgment for defendant Kidder Peabody & Co., Inc. ("Kidder") against the Time-Barred Plaintiffs and the Quartz Plaintiffs. See Primavera Familienstiftung v. Askin, 130 F. Supp.2d 450 (S.D.N.Y. 2001).

In DLJ's Memorandum of Law In Support of Summary Judgment (the "DLJ SJ Brief") in the Investor Actions, DLJ stated that "[c]ertain arguments advanced by Kidder [in its motion for summary judgment in the same actions] apply with equal force to the claims against DLJ and are adopted herein," (DLJ Mem. at 56), and discussed specific arguments put forth by Kidder which DLJ adopted (id. at 56-59). Subsequently, in a letter to the Court of May 26, 2000 (the "May 26 Letter"), DLJ stated that it wished "to clarify" that "to the extent applicable" it was joining in each of Kidder's summary judgment motions in the Investor Actions, and specifically identified Kidder's Motion for Summary Judgment Dismissing the Claims of Certain Plaintiffs as Time-Barred (the "Statute of Limitations Motion") and Kidder's Motion for Summary Judgment Dismissing the Claims of the Quartz Plaintiffs (the "Quartz Motion").*fn2

The plaintiffs in the ABF Action (the "ABF Plaintiffs"), in their Memorandum of Law In Opposition To the Brokers' Motions For Summary Judgment (the "ABF Plaintiffs' Brief") in the Investor Actions, noted that "Kidder alone singles out the plaintiffs who invested in Quartz," (ABF Plaintiffs' Brief at 167), and raised certain arguments as to why Kidder was not entitled to summary judgment against the Quartz Plaintiffs (id. at 167-68). The plaintiffs in the Primavera Action (the "Primavera Plaintiffs") separately submitted a notice of joinder as to the ABF Plaintiffs' Brief as to all arguments made in that brief.

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.

Discussion

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. ...


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