United States District Court, Southern District of New York
January 16, 2003
IN RE: ASSICURAZIONI GENERALI S.P.A. HOLOCAUST INSURANCE LITIGATION THIS DISPOSITION APPLIES TO ALL ACTIONS.
The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge
OPINION AND ORDER
With varying regard for the applicable law on the subject, defendants Assicurazioni Generali S.p.A. and Zurich have moved for reconsideration of the court's September 25, 2002 Opinion and Order (the "Opinion") denying their motions to dismiss on grounds of forum selection clauses and forum non conveniens. Familiarity with the Opinion is assumed for current purposes.
The applicable law on the subject of reargument motions is straightforward. It arises from Local Civil Rule 6.3, which directs that motions for reargument be served within ten days of the determination in question, be accompanied by a "memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked," and not include affidavits unless the court directs otherwise. The rule here is prudential, designed to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matter." Lewis v. New York Tel. Co., No. 83 Civ. 7129, 1986 U.S. Dist LEXIS 29934 at *3 (S.D.N.Y. Jan. 29, 1986); see also Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citing Lewis). 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). A party making such a motion "is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings." De Los Santos v. Fingerson, No. 97 Civ. 3972, 1998 U.S. Dist. LEXIS 17735, at * 1 (S.D.N.Y. Nov. 12, 1998). The motion should not be used as a substitute for appeal. See Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 117 F.R.D. 111, 113 (S.D.N.Y. 1997); Morser v. AT & T Information Systems, 715 F. Supp. 516, 517 (S.D.N.Y. 1989).
For the reasons set forth briefly below, the motions are denied.
Zurich argues that facts and arguments particular to Zurich were overlooked in the Opinion, and that its position was conflated with that of Generali. It argues as well that the only plaintiff with a claim directly against Zurich is Rubinstein, and that there is no likelihood that his family in fact had a policy issued by Zurich. In addition, Zurich argues that Rubinstein's choice of this district in which to litigate is entitled to no weight because he resides in Florida.
Taking first the second group of arguments — those relating to Rubinstein — Zurich overlooks that Rubinstein sues not only in his own behalf but also in behalf of other Zurich policy-holders. For reasons stated in the Opinion relating to the demographics of New York, there is every reason to believe that other Zurich policy-holders will be located here. Moreover, Rubinstein's residence in Florida does not preclude a connection with New York. It is a commonplace that many older residents of Florida have such a connection. Although Zurich is correct when it points out that the court cannot take into account the explicit representation in plaintiffs' memorandum that Rubinstein in fact resides during part of the year in New York, Plaintiffs' Opposition to Zurich's Motion for Reconsideration at 7, that representation merely confirms what might otherwise have been merely likely. Moreover, as was pointed out in the Opinion, in international cases such as this, the plaintiffs' choice of a forum in the United States is entitled to substantial weight. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 103 (2d Cir. 2000) (lower court erred when it "weighed against the plaintiffs that none of them were residents of the Southern District of New York but did not count in favor of their choice of a U.S. forum that two of them were residents of the United States").
Zurich's argument about what Rubinstein may or may not be able to show as to his policy ownership is misplaced at this stage of the litigation. Zurich claims that it had no offices in Poland at the time Rubinstein's family resided there, and that it is unable to locate Rubinstein on its data base. However, how a member of Rubinstein's family acquired a Zurich policy has not been the subject of any proof as yet, and it is unclear how and with what spelling variations Zurich went about searching for the name Rubinstein.
As to Zurich's first argument — that the court failed to consider issues of convenience peculiar to Zurich, those issues were considered and Zurich's arguments found wanting. As noted in the Opinion, Zurich has not challenged personal jurisdiction, and thus has not made any substantial showing that it would be inconvenient for it to litigate here. To the extent that Zurich argues inconvenience from the location of documents, that topic was covered in the opinion, see Opinion at 28, where it was pointed out that documents abroad present a minimal hurdle easily cleared by simple modern technology. As to witnesses, Zurich has identified none, and confines itself to speculation about where such witnesses might be found and what language barriers their testimony might present. Landolt Decl. at ¶ 13. Such ephemera were duly considered by the court and found wanting; nothing Zurich has added makes them any more weighty the second time around.
Generali proffers an affidavit purporting to recite new facts relating to the independence and viability of the International Commission on Holocaust Era Insurance Claims ("ICHEIC"). These facts concededly were not put before the court at the time the motion was submitted for decision, and the affidavit therefore is improper. In any event, even if these facts, whose accuracy plaintiffs do not concede, had been before the court before the Opinion was issued, they would not have changed in any meaningful way the Opinion's conclusions, set forth at pages 16-21, with respect to the shortcomings of ICHEIC as a forum to which a United States court is being asked to defer. These include the wholly voluntary nature of ICHEIC, from which any participant may withdraw, and the lack of assured funding for ICHEIC, promises and expressed good intentions notwithstanding.
For the reasons set forth above, the motions for reargument are denied.
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