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MULTI-JUICE, S.A. v. SNAPPLE BEVERAGE CORP.

August 20, 2003

MULTI-JUICE, S.A., SNAPPLE HELLAS, S.A., AND NEW AGE BEVERAGE HELLAS, PLAINTIFFS, AGAINST SNAPPLE BEVERAGE CORP., MISTIC BRANDS, INC. AND TRIARC COMPANIES, INC., DEFENDANTS


The opinion of the court was delivered by: Robert Patterson, Senior District Judge

OPINION AND ORDER

Plaintiffs Multi-Juice, S.A. ("Multi-Juice"), Snapple Hellas, S.A. ("Hellas"), and New Age Beverage Hellas ("New Age") (collectively, "Plaintiffs") move 1) for reargument of the motion to disqualify Plaintiffs' counsel, Louis F. Burke, filed by Defendants Snapple Beverage Corp. ("Snapple"), Mistic Brands, Inc. ("Mistic") and Triare Companies, Inc. ("Triare") (collectively, "Defendants"); or 2) in the alternative for leave to file an interlocutory appeal with regard to the same. Defendants ask this Court to consider imposing sanctions sua sponte on Plaintiffs, pursuant to Rule 11 of the Federal Rules of Civil Procedure, for the fees and expenses incurred by Defendants with regard to preparing their response to Plaintiffs' motion.

For the forgoing reasons, Plaintiffs' motion is denied. This Court declines to impose Rule 11 Sanctions on Plaintiffs.

Background

The underlying facts detailed in the Complaint in this case are restated in this Court's [ Page 2]

Opinion and Order dated April 25, 2003*fn1, Multi-Juice, S.A. v. Snapple Beverage Corp., 2003 WL 1961636, *1-*3 (S.D.N.Y. 2003).

Defendants brought a motion on September 6, 2002, 1) to dismiss certain causes of action enumerated in the Complaint, pursuant to Fed.R.Civ.P. 12(b)(6); 2) to dismiss all causes of action against Defendant Triare; and 3) to disqualify Plaintiffs' counsel, Louis F. Burke, pursuant to Disciplinary Rule 5-102 of the New York Rules of Professional Responsibility. Oral argument was held on February 19, 2003. In an Opinion and Order dated April 25, 2003, this Court granted Defendants' motion in its entirety.

On May 8, 2003, Plaintiffs brought the current motion for reargument of the motion to disqualify counsel only and, in the alternative, for leave to file an interlocutory appeal, again only on the disqualification motion.

Discussion

I. Motion For Reargument

A motion for reargument is appropriately granted when a "[c]ourt has overlooked 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." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp.2d 390, 392 (S.D.N.Y. 2000) (internal quotations and citations omitted). A motion for reargument may also be granted in order to "correct a clear error or prevent manifest injustice." Griffin Industries, Inc. v. Petrojam. Ltd., 72 F. Supp.2d 365, 368 (S.D.N.Y. 1999) (internal quotations and citations omitted). Nonetheless, "a [ Page 3]

motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995).

In its motion for reargument, Plaintiffs do not point to any additional "controlling decisions or factual matters" that this Court did not consider originally. Range Road, 90 F. Supp.2d at 392. Nor have they shown that the Opinion of April 25, 2003 represents "clear error" or "manifest injustice." Griffin Industries, 72 F. Supp.2d at 368. Although in their supporting memorandum of law, Plaintiffs re-emphasize sworn statements by Mr. Arthur Tavantzis and Mr. Burke that "negotiations as to the terms of the Distribution Agreement with Ms. Bimbo were conducted through Arthur Tavantzis" and that "Burke's negotiations and communications were with the counsel for Snapple" (Plaintiffs' Memorandum of Law in Support of Reargument at 3 (citing Nov. Tavantzis Decl. ¶ 4; Burke Decl. ¶¶ 7-8))*fn2, Plaintiffs' citations to the record are not entirely accurate. The Tavantzis Declaration stated, "Essentially, the negotiation of the Distribution Agreement proceeded on two intertwined tracks, one by the attorneys and one by Ms. Bimbo and me. Most, if not all, of the substantive decisions made by Hellas as to the terms of the Distribution Agreement were made by me." (Nov. Tavantzis Decl. ¶ 4 (emphasis added).). Similarly, the Burke Declaration acknowledged participation in the drafting of the Distribution Agreement and stated that "my role was mostly limited to acting as a scribe and conduit of information flowing between the parties." (Burke Decl. ¶ 7 (emphasis added).) These declarations were made in response to the Affidavit of Gary Lyons, dated September 5, 2002 (the "Lyons Affidavit") stating "Burke was also the chief, if not sole, [ Page 4]

negotiator on behalf of the Tavantzises in the negotiations between Multi-Juice and Snapple over the terms of the Multi-Juice Distribution Agreement and was extensively involved in drafting that Agreement." (Lyons Aff. ¶ 8.) Accordingly, Plaintiffs' Declarations did not deny that at times Mr. Burke was the sole negotiator of the Distribution Agreement on behalf of Plaintiffs. Ms. Bimbo's Affidavit, submitted in reply and dated December 6, 2002 (the "Bimbo Affidavit"), stated, "Based on my own involvement with the negotiations of the Distribution Agreement, I know that Burke was involved in all aspects of that negotiation, including but not limited to proposing and commenting on draft language. On several occasions, Burke was the sole representative of Multi-Juice in these negotiations." (Bimbo Aff. ¶ 10.) When one considers Bimbo's definitive statement against the Burke and Tavantzis Declarations' use of "mostly," "[m]ost" and "[e]ssentially," the Court's finding was correct. Such is the case, particularly when considered with reference to Mr. Burke's letter to Ms. Bimbo dated ...


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