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United States District Court, Southern District of New York

January 30, 2003


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


Plaintiff Karla Rivera ("Rivera") has moved for reconsideration under Local Rule 6.3 of this Court of the Memorandum Opinion and Order dated September 20, 2002 (the "Opinion") which dismissed Rivera's declaratory judgment action because the issues presented were not ripe. Rivera has also moved under Rule 15(a), Fed.R.Civ.P. for leave to file a Second Amended Complaint. For the reasons set forth below, the motions are denied.

Reconsideration is Denied

A motion for reconsideration is appropriate "where a court overlooks `controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court.'" Mopex, Inc. v. Am. Stock Exch. LLC, No. 02 Civ. 1656, 2002 WL 523417, at *1 (S.D.N.Y. Apr. 5, 2002) (quotation omitted). Simply put, a motion under Rule 6.3:

is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved . . .
[T]he purpose of Local Rule 6.3 is 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 matters.
Banco De Seguros Del Estado v. Mutual Marine Offices, Inc., No. 02 Civ. 467, 2002 WL 31027649 (S.D.N.Y. Sept. 10, 2002) (citations and internal quotations omitted).

Rivera has not cited any controlling authority that this Court overlooked when it issued the Opinion. Indeed, in Consolidated Gold Fields v. Anglo American Corp., 713 F. Supp. 1457, 1477 (S.D.N.Y. 1989), the only decision that Rivera cites for the proposition that her declaratory judgment action is ripe, the Court denied the defendant's motion for reconsideration, and noted in relevant part that the motion was "an attempt to relitigate an issue fully considered." See also Silberman v. Innovation Luggage, Inc., No. 01 Civ. 7109, 2002 WL 31175226 at *1 (S.D.N.Y. Sept. 30, 2002) (denying motion for reconsideration where party failed to present new controlling authority of law).

Rivera has asserted that this Court overlooked the fact that she has filed a complaint against Alan Hendrickson, an individual who was initially named as a defendant here but later dropped, in an action currently pending before the Honorable Allen G. Schwartz of this Court, captioned Rivera v. Hendrickson, 02 Civ. 632 (AGS) (hereinafter "Rivera II").

However, in an affirmation executed on May 15, 2002, Rivera's attorney advised this Court about Rivera II, and the pendency of that action was noted in the Opinion. See slip op. at 1 ("On January 25, 2002, Rivera commenced an action against her former manager Alan Hendrickson . . . which was assigned to the Honorable Allen G. Schwartz."). In any case, to the extent that Hendrickson asserts in Rivera II that Rivera's claims must be arbitrated, that issue will be before Judge Schwartz.

In short, no controlling authority or factual matter has been overlooked by this Court. The motion for reconsideration is denied.

Leave To File A Second Amended Complaint is Denied

Because Rivera's proposed Second Amended Complaint would be futile, leave to amend should be denied. See, e.g., Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("where there is no merit in the proposed amendments, leave to amend should be denied").

Rivera notes that the new complaint would add allegations "that demonstrate that Rivera's claims against former employee Alan Hendrickson is [sic] ripe for a declaratory judgment," Pl. Mem. at 3, but as set forth above, Hendrickson is a party in Rivera II, not this action.

Rivera asserts that the new complaint would allege that she has served a complaint concerning underlying employment claims pursuant to 42 U.S.C. § 1981. Whether or not Rivera is referring to Rivera II, the enforceability of Rivera's agreement to arbitrate must be decided within the context of such an action. This is consistent with standard practice, as this Court noted in the Opinion. See slip op. at 9 (if "a plaintiff bringing employment claims believes she is not bound by an arbitration agreement, then she generally files a complaint in court, to which the defendants (if they believe a valid arbitration agreement exists) respond by moving to compel the matter to arbitration").

Rivera also states that her proposed complaint "expands the declarations that are specified in the `prayer for relief' section of the pleading." Pl. Mem. at 3. The fact that a new complaint would seek additional relief does not in any way negate the conclusion that the claims are not ripe. See, e.g., Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 152 F.R.D. 18, 30-31 (S.D.N.Y. 1993) (denying leave for an amendment that would only reiterate claims present in original complaint); Zerman v. E.F. Hutton & Co., 628 F. Supp. 1509, 1511 (S.D.N.Y. 1986) (denying motion to amend complaint where proposed amendment would be a "rehash of the allegations in the original complaint which were previously rejected").

Finally, Rivera seeks to add a new party, Marti Vazquez, who would assert an identical declaratory judgment claim against defendants. Pl. Mem. at 3. The addition of a new party to the 5 second amended complaint would not change the analysis in the Opinion that Rivera's declaratory judgment action is not ripe. Vazquez, like Rivera herself, can file her substantive employment claims in court if she believes she is not bound by a valid arbitration agreement, and the issue of the enforceability of the arbitration policy as to her would be decided in that case. In the alternative, if Vazquez believes that she is bound by a valid arbitration agreement, then there would be no actual case or controversy with respect to her putative claim for a declaratory judgment. Either way, the second amended complaint would be futile. See, e.g., Nowakowski v. Kohlberg, No. 89 Civ. 5621, 1991 WL 3028, at *6 (S.D.N.Y. Jan. 8, 1991) (leave to amend complaint denied where the proposed "Amended Complaint would have to be dismissed for lack of an indispensable party and for failure to state a claim."), aff'd, 951 F.2d 1267 (2d Cir. 1991).

Given that Rivera's attempted repleading would be subject to the same legal deficiencies that marked her earlier repleading effort, the motion for leave to file it is denied. See Mooney v. Vitolo, 435 F.2d 838, 839 (2d Cir. 1970) (per curiam) ("it was within the sound discretion of the District Court to deny leave to replead on the third attempt").

It is so ordered.


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