The opinion of the court was delivered by: Sweet, District Judge
The parties to this action have demonstrated an awesome ability for complicated litigation. Presently pending before this Court are six motions, all while the principal decision of this Court of May 28, 2002 (the "Attachment Decision") is on appeal. These motions include (1) the motion of J.V.W. Investments Ltd. ("JVW") and J.V. Waggoner ("Waggoner") (collectively, the "Waggoner Parties"), pursuant to Local Rule 6.3 to reconsider the Attachment Decision, (2) the motion of the Waggoner Parties to stay the Attachment Decision pending appeal, (3) the motion by Raymond Winder, Provisional Liquidator (the "Liquidator") of Suisse Security Bank & Trust, Ltd. ("SSBT")*fn1 pursuant to Rule 54(b), Fed.R.Civ.P. for entry of judgment as directed by the Attachment Decision, (4) the motion of SSBT pursuant to Local Rule 54.2 for an additional undertaking, (5) the motion of SSBT for damages pursuant to CPLR 6212(e) and (6) the cross-motion of the Waggoner Parties to stay any determination of damages and attorneys' fees as directed by the Attachment Decision.
The submission of these motions and their briefing schedule was also the subject of negotiation and controversy. By order of December 12, 2002, the submissions were deemed complete and the motions submitted.
The course of the litigation prior to the Attachment Decision is described by that decision, familiarity with which is assumed.
The first motion for reconsideration and the motion for relief pending appeal was timely filed and briefed over the summer of 2002. The remaining motions were filed in the fall, and the parties negotiated unsuccessfully to resolve the issues raised. The principal concerns derive from the determination in the Attachment Decision granting SSBT attorneys' fees.
On November 8, 2001, the Waggoner Parties commenced an action against SSBT in the Supreme Court of the State of New York, New York County (the "State Court Action") and moved for an attachment over the same monies already attached in this action. On May 9, 2002, the Honorable Ira Gammerman granted the Waggoner Parties' motion for order of attachment and ordered that the State Court attachment constituted a "continuation" of the attachment in this action, an order currently the subject of an appeal by SSBT.
SSBT has moved before the Bankruptcy Court for a turnover order under Section 304 of the Bankruptcy Code, the resolution of 4 which is expected to turn on the determination on appeal of the Attachment Decision.
The appeal of the Attachment Decision is to be argued on February 3, 2003.
The Motion for Reconsideration Is Granted
A motion for reconsideration must 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 Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). To ensure the finality of decisions, a motion for reconsideration is "construed narrowly and the standard is to be applied strictly." Ralph Oldsmobile Inc. v. General Motors Corp., 2001 WL 55729, at *2 (S.D.N.Y. Jan. 23, 2001); Dietrich v. Bauer, 198 F.R.D. 397, 399 (S.D.N.Y. 2001); Polar Int'l v. Reeve, 120 F. Supp.2d 267, 268 (S.D.N.Y. 2000); Golub v. Kidder, Peabody & Co., 2000 WL 1346704, at *2 (S.D.N.Y. Sept. 19, 2000). Accordingly, the courts have made plain that a losing party may not use a motion for reargument as a device "to relitigate an issue already decided," Shrader, 70 F.3d at 257, or to "advance new facts, issues or arguments not previously presented to the court," New Shows, S.A. de C.V. v. Don King Prods., Inc., 2001 WL 882999, at *1 (S.D.N.Y. Aug. 3, 2001) (quoting O'Brien v. Bd. of Educ. Of Deer Park Union Free Sch. Dist., 127 F. Supp.2d 342, 345 (E.D.N.Y. 2001)).
The only fact or authority claimed by the Waggoner Parties to have been overlooked is the entry of an attachment in the State Court Action, but no citation is presented as to the manner in which this fact was brought to the court's attention. Rather than rehearse the many submissions in connection with the Attachment Decision it will be assumed that the fact of this State Court Attachment was overlooked, and on that reconsideration is granted.
The relevant statute governing the award of costs and attorneys' fees to a party whose assets have been wrongfully attached is New York's Civil Practice Law and Rules ("CPLR") 6212(e) which provides in relevant part:
The plaintiff shall be liable to the defendant for all
costs and damages, including reasonable attorney's fees,
which may be sustained by reason of the attachment if the
defendant recovers judgment, or if it is finally decided
that the plaintiff was not entitled to an attachment of
the defendant's property.
In Minskoff v. Fidelity & Cas. Co., 28 A.D.2d 85, 87 (1st Dep't 1967), aff'd, 23 N.Y.2d 706 (1968), it was argued that because the court had vacated an attachment in conjunction with dismissing an action on the ground of forum non conveniens, there had been no "final decision" with respect to the ...