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LEWIS v. ROSENFELD

May 22, 2001

MICHAEL P. LEWIS, PLAINTIFF,
v.
ERIC D. ROSENFELD, ROBERT BERNSTEIN, ROBERT B. TANNENHAUSER, AND ROSENFELD, BERNSTEIN & TANNENHAUSER, L.L.P., DEFENDANTS. ERIC D. ROSENFELD, ROBERT BERNSTEIN, ROBERT B. TANNENHAUSER, AND ROSENFELD, BERNSTEIN & TANNENHAUSER, L.L.P., THIRD-PARTY PLAINTIFFS, V. AUERBACH, POLLACK & RICHARDSON, INC., JAMES P. SINCLAIR AND CONRAD HUSS, THIRD-PARTY DEFENDANTS.



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

OPINION AND ORDER

On July 20, 2000, Michael Lewis filed an action against Eric Rosenfeld, Robert Bernstein, Robert Tannenhauser (collectively "Individual Defendants"), and Rosenfeld, Bernstein & Tannenhauser, L.L.P. ("RBT"), the law firm in which the Individual Defendants were general partners. Plaintiff asserts several state law claims arising out of a $650,000 loan plaintiff made to Mad Martha's Ice Cream, Inc. ("Mad Martha's") — a loan which was never repaid because Mad Martha's filed for bankruptcy approximately eight months later. Defendants moved to dismiss the Amended Complaint on several grounds, one of which was that the claims were time-barred. On March 8, 2001, this Court issued an Opinion and Order which held, inter alia, that the claims were timely-filed against all defendants. See Lewis v. Rosenfeld, No. 00 Civ. 5368, 2001 WL 228416, at *7 (S.D.N.Y Mar. 8, 2001) ("Opinion"). By letter dated March 13, 2001, defendants moved for reconsideration of that portion of the Opinion that held that the claims against Bernstein and Tannenhauser are timely.*fn1 Because that portion of the Opinion hinged on a "peculiar and remarkable" turn of events, the full implication of which was not briefed by the parties, reconsideration is granted. Opinion at *7.

I. LEGAL STANDARD

"The standard for granting . . . a motion [for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "Because the motion does not afford the losing party the right to submit new evidence to bolster relief, parties are not to submit affidavits in support of a [Local] Rule 6.3 motion for reconsideration `unless directed by the court.'" First Fin. Ins. Co. v. Allstate Interior Demolition Corp., No. 96 Civ. 8243, 1998 WL 567900, at *3 (S.D.N.Y. Sept. 3, 1998) "`Motions for reconsideration must be narrowly construed and the standard strictly applied to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court, to ensure finality, and to prevent the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters.'" Ackoff-Ortega v. Windswept Pac. Entm't Co., 130 F. Supp.2d 440, 443 (S.D.N.Y. 2000) (quoting Polar Int'l Brokerage Corp. v. Reeve, 120 F. Supp.2d 267, 268-69 (S.D.N.Y. 2000) (internal citations omitted)); see also Shrader, 70 F.3d at 257 ("[A] motion to reconsider should not be granted where the moving party seeks solely to religitate an issue already decided.")

II. DISCUSSION

A. Background

The underlying facts of this dispute were discussed extensively in the Court's prior opinion and will not be repeated. See Opinion at *1-*4.*fn2 However, the procedural history of this case, also recited in detail in the Opinion, is central to the issues being reconsidered.

On May 13, 1996, Lewis sued these defendants, among others, in Texas state court asserting claims arising out of his loan to Mad Martha's. See id. at *4 That case was removed to the United States District Court, Southern District of Texas (the "Texas Lawsuit"). Each of the defendants in this case was dismissed from the Texas Lawsuit for lack of personal jurisdiction. See id. On January 13, 2000, the Fifth Circuit Court of Appeals affirmed the district court's dismissals. See id. The Fifth Circuit's unpublished opinion stated that "[t]he several rulings by the district court on the personal jurisdiction issue are manifestly correct. The challenge thereto is frivolous." Id. On February 17, 2000, the Fifth Circuit denied Lewis' petition for a rehearing en banc. The Fifth Circuit's mandate issued on February 25, 2000.

Over nine months later, on December 1, 2000, the Fifth Circuit sua sponte "recalled" the mandate and "annulled" the administrative dismissal of the entire appeal, stating:

Various filings and the administrative handling thereof have resulted in errors and anomalies, including the inappropriate dismissal of the entire appeal. To correct same the following is ordered and directed:

1. The mandate issued herein is RECALLED.

2. The administrative dismissal of the entire appeal based on the order entered herein on January 13, 2000 is ANNULLED.
3. The dismissal of the appeal against Robert Tannenhauser and Robert Bernstein is REAFFIRMED, as is the grant of the bill of costs to them.
4. The appeals as against Eric Rosenfeld [and] Rosenfeld, Bernstein & Tannenhauser, L.L.P. are REINSTATED; and the grant of Rule 38 damages to ...

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