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May 26, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


American National Fire Insurance Company ("American National") and Great American Insurance Co. ("Great American") (collectively the "Insurers"), the plaintiffs in 99 Civ. 12405 (the "New York Action") and defendants in 00 Civ. 5098 (the "Georgia Action"), have moved for reconsideration of American Nat'l Fire Ins. Co. v. Mirasco, 2003 WL 1057501, ___ F. Supp.2d ___ (S.D.N.Y. March 10, 2003) (the "Summary Judgment Opinion") or, in the alternative, for certification of the questions for appeal pursuant to 28 U.S.C. § 1292(b). Mirasco, Inc. ("Mirasco"), the defendant in the New York Action and plaintiff in the Georgia Action, has also moved for reconsideration of the Summary Judgment Opinion and for certification of the issues it has presented in this motion if the Insurers' motion for certification is granted. In addition, both parties had earlier moved in limine, and the consideration of those motions was postponed until such time as the motions for reconsideration were fully briefed and decided. Therefore, this opinion will also deal with the in limine motions.

Because both parties are inappropriately seeking another "bite at the apple" in their motions for reconsideration by presenting the same facts and arguments as were already considered, their motions for reconsideration are denied. In addition, for the following reasons, their motions in limine are granted in part and denied in part.

Prior Proceedings

The parties and prior proceedings have been described in greater detail in the Summary Judgment Opinion, familiarity with which is presumed.

The Insurers filed their in limine motion on November 18, 2002. Mirasco filed opposition papers on December 18, 2002, and the Insurers replied on December 20, 2002. Mirasco filed its in limine motion on December 30, 2003. The Insurers filed opposition papers on January 24, 2003, and Mirasco replied on February 7, 2003. Oral argument was heard on March 19, 2003. At that time, the parties indicated their intentions to file motions for reconsideration of the Summary Judgment Opinion, which had been issued a little more than a week earlier. As a result, consideration of the in limine motions was continued to such time as the motions for reconsideration were determined.

The Summary Judgment Opinion was filed on March 10, 2003. In that opinion, it was concluded that, inter alia: (1) the M/V Spero cargo was rejected by the Egyptian government, and (2) the IBP cargo was rejected due to an "embargo," and thus under an applicable exclusion Mirasco was entitled only to return freight for that percentage of the cargo. It was concluded that the only issue left for trial was what percentage, if any, of the Monfort and Excel cargo was rejected for a covered reason.

The Insurers now move for reconsideration of the first conclusion, that the M/V Spero cargo had been rejected by the Egyptian government. Mirasco contests the second conclusion, that the IBP cargo was rejected due to an "embargo" as defined in the ocean marine transportation policy at issue (the "Policy"). Both filed their motions on March 24, 2003. The motions were considered fully submitted on April 23, 2003.


I. Motions for Reconsideration

A. Standard of Review

"To succeed on a motion for reargument, the moving party must demonstrate that the court overlooked the controlling decisions or factual matters that were placed before the court in the underlying motion." Lopez v. Comm'r of Soc. Sec., 2002 U.S. Dist. LEXIS 5091, *1-*2 (S.D.N.Y. March 27, 2002) (quotations and citations omitted); see also Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995) (motion for reargument "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").

Rule 6.3 is intended 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." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citation omitted). The parties may not present new facts or theories at this stage. Ralph Oldsmobile Inc. v. General Motors Corp., 2001 WL 55729, at *2 (S.D.N.Y. Jan. 23, 2001) (striking affidavit that was filed in support of motion to reconsider without court's permission); Primavera Familienstifung v. Askin, 137 F. Supp.2d 438, 442 (S.D.N.Y. 2001) (party may not "advance new facts, issues or arguments not previously presented to the Court") (quoting Morse/Diesel Inc. v. Fidelity & Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991).

Rule 6.3 must be narrowly construed and strictly applied so as to avoid duplicative rulings on previously considered issues, and may not be employed as a substitute for appealing a final judgment. Lopez, 2002 U.S. Dist. LEXIS 5091, at *3; Shamis v. Ambassador Factors, 187 F.R.D. 148, 151 (S.D.N.Y. 1999). The decision to grant or deny the motion rests in the discretion of the district court. AT&T Corp. v. Community Network Servs. Inc., 2000 WL 1174992, at *1 (S.D.N.Y. Aug. 18, 2000).

B. Insurers' Motion

The Insurers argue that the Summary Judgment Opinion improperly concluded that there were no issues of material fact with regard to whether the Monfort and Excel cargo was rejected and that the Court improperly determined that the Loss of Market Exclusion did not apply.

1. Rejection of the Monfort and Excel Cargo

The Summary Judgment Opinion concluded that the Insurers had failed to establish that there is a dispute of material fact with regard to whether Mirasco's losses on the Monfort and Excel cargo were proximately caused, at least in part, by events covered by the Policy. Left undecided, however, was the factual issue of what percentage of the Monfort and Excel cargo was rejected for a reason covered by the Policy.

The Insurers now raise a number of objections to this conclusion. They argue that the Court improperly decided questions of fact, too stringently enforced Local Rule 56.1 and overlooked evidence. These legitimate-sounding complaints, however, fail to deliver and in effect constitute the Insurers' efforts to reargue issues already covered in the fifty-one page Summary Judgment Opinion and to re-present evidence that has already been considered and found wanting.

First, the Insurers argue that the Court improperly decided a question of fact: namely, whether the Excel and Monfort cargoes were rejected as that term is defined in the Policy. In support of this they first challenge the truthfulness of a survey report, commissioned by them and prepared by Youssef El Manoufy ("El Manoufy"), on which the Court relied in part in concluding that the cargo had been rejected. The Insurers challenged the truthfulness of this report based on the alleged untrustworthiness of El Manoufy. As Mirasco pointed out, the report was not signed by El Manoufy, but by another employee of the surveyor hired by the Insurers, Captain Elbendary ("Elbendary"). Further, the Insurers failed to put forth any evidence contradicting the report's conclusion that "the basic trend" of the Egyptian government was "to reject the liver consignment in any way." The Insurers next, similarly, raise issues about the trustworthiness of the April 15, 1999 certificate of re-export. A similar argument was already rejected in the Summary Judgment Opinion, at n. 5. Finally, the Insurers object to what amounts to the Court's refusal to accept their definition of rejection under Egyptian law: both by the Court's disregard of expert evidence regarding what constitutes a typical "rejection" under Egyptian law and related evidence regarding the fact that the Excel and Monfort cargoes did not follow this pattern. The Court rejected as a matter of law this specific definition of rejection. It was concluded that the language of the Policy was unambiguous and that the scope of coverage was therefore a question of law for the Court to decide. Therefore, these arguments are insufficient to justify reconsideration.

The Insurers also contend that the Court misconstrued Local Rule 56.1 in that it refused to credit the Insurers' conclusory denials of certain facts Mirasco set forth in its 56.1 Statement. Local Rule 56.1 clearly states that the moving party's 56.1 statement "will be deemed to be admitted unless controverted," Rule 56.1(c), and requires that such denials be supported by a specific citation to admissible evidence, Rule 56.1(d). As such, any of Mirasco's 56.1 Statements that the Insurers specifically denied but failed to support such denial with specific evidence, were deemed admitted for purposes of the summary judgment motion. See Local Rule 56.1. See also Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000) ("In the Southern and Eastern Districts of New York, a party opposing a motion for summary judgment shall file a short and concise statement of the material facts in dispute accompanied by citation to evidence which would be admissible.") (emphasis in original); Cooper v. Gottlieb, No. 95 Civ. 10543(JGK), 2000 WL 1277593, at * 4 (S.D.N.Y. Sept. 8, 2000) (holding that a denial without evidence to support the denial is "conclusory" and "wholly inadequate under Local Civil Rule 56.1(d)"); Wenzhou Wanli Food Co., Ltd., v. Hop Chong Trading Co., Inc., No. 98 Civ. 5045(JFK), 2000 WL 964944, at *3 (S.D.N.Y. July 11, 2000) (noting that "[u]nsupported allegations will not suffice" in responding to a motion for summary judgment). The Insurers have 8 not put forward any case law to support their assertion that this interpretation of Local Rule 56.1 is in any way out of the ordinary or in any way violates Fed.R.Civ.P. 56. Indeed, they would be hard pressed to do so. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (parties must "designate `specific facts showing that there is a genuine issue for trial'"); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (non-movant required to come forward with concrete evidence from which a reasonable jury could return a verdict in its favor); Cinema North Corp. v. Plaza at Latham Assocs., 867 F.2d 135, 138 (2d Cir. 1989) (same).

The Insurers now point out the reasons why they claim the assertions should not have been admitted. They did not do so at the time of the motion. "While the trial court has discretion to conduct an assiduous review of the record in an effort to weigh the propriety of granting a summary judgment motion, it is not required to consider what the parties fail to point out." Monahan, 214 F.3d at 292 (citing Downes v. Beach, 587 F.2d 469, 472 (10th Cir. 1978)).

Finally, the Insurers point to "overlooked evidence" in the forms of affidavits from persons who were not eyewitnesses to the relevant incidents and who attempt to set forth the meaning of "rejection" under the Policy by testimony regarding the means by which cargo is typically rejected under Egyptian law. As discussed above, the latter evidence was not relevant, as the Court defined rejection based on the ordinary understanding of the term and did not have to resort to ...

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