United States District Court, Southern District of New York
September 11, 2003
AUSCAPE INTERNATIONAL, ET AL., PLAINTIFFS, AGAINST NATIONAL GEOGRAPHIC SOCIETY ET AL., DEFENDANTS
The opinion of the court was delivered by: Henry Pitman, Magistrate Judge
MEMORANDUM OPINION AND ORDER
By notice of motion dated August 16, 2003, plaintiffs' counsel, Surgit Soni, Esq., both objects to and seeks reconsideration of my Memorandum Opinion and Order dated August 6, 2003 ("August 6 Order") determining the amount of sanctions to be awarded to the ProQuest defendants as a result of Mr. Soni's failure to comply with a discovery Order issued by Judge Kaplan on October 28, 2002. After the issuance of my August 6 Order, 2003, ProQuest's counsel called my attention to an arithmetic error, and I issued an Amended Memorandum Opinion and Order dated August 12, 2003 ("August 12 Order") which corrected the arithmetic error. In all other respects, my August 12 Order was identical to my August 6 Order. [ Page 2]
Deeming plaintiff's motion for reconsideration to be directed to my August 12 Order, and assuming it to be procedur-ally appropriate,*fn1 it is denied in all respects.
Motions for reconsideration are appropriate only in limited circumstances.
Motions for reargument "are granted when new
facts come to light or when it appears that
controlling precedents were overlooked."
Weissman v. Fruchtman, 658 F. Supp. 547
(S.D.N.Y. 1987). The proponent of 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 [Local Civil Rule 6.3] to
advance new facts and theories in response to the
court's rulings. The purpose of the rule 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." Lewis v.
New York Telephone, No. 83 Civ. 7129, slip
op. at 2, 1986 WL 1441 (S.D.N.Y. 1986) cited in
Carolco Pictures Inc. v. Sirota,
700 F. Supp. 169 (S.D.N.Y. 1988).
McMahan & Co. v. Donaldson. Lufkin & Jenrette Securities Corp., 727 F. Supp. 833, 833 (S.D.N.Y. 1989).
"[T] o be entitled to reargument under Local [Civil Rule 6.3], [a party] must demonstrate that the Court overlooked controlling decisions or factual matters that were put before the [ Page 3]
Court on the underlying motion." American Alliance Ins. Co. v. Eagle Ins. Co., 163 F.R.D. 211, 213 (S.D.N.Y. 1995), rev'd on other grounds, 92 F.3d 57 (2d Cir. 1996), citing Ameritrust Co., N.A. v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993); Fulani v. Brady, 149 F.R.D. 501, 503 (S.D.N.Y. 1993), aff'd sub nom., Fulani v. Bentsen, 35 F.3d 49 (2d Cir. 1994); East Coast Novelty Co. v. City of New York, 141 F.R.D. 245, 245 (S.D.N.Y. 1992); B.N.E. Swedbank, S.A. v. Banker, 791 F. Supp. 1002, 1008 (S.D.N.Y. 1992); Novak v. National Broad. Co., 760 F. Supp. 47, 48 (S.D.N.Y. 1991); Ashley Meadows Farm, Inc. v. American Horse Shows Ass'n, 624 F. Supp. 856, 858 (S.D.N.Y. 1985). Thus, "a party in its motion for reargument `may not advance new facts, issues or arguments not previously presented to the court.'" In re Integrated Resources Real Estate Limited Partnerships Sec. Litig., 850 F. Supp. 1105, 1151 (S.D.N.Y. 1994), quoting Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., No. 86 Civ. 6447 (JMC), 1989 WL 162315 at *4 (S.D.N.Y. Aug. 4, 1989), rev'd on other grounds, 967 F.2d 742 (2d Cir. 1992). Accord Caribbean Trading & Fidelity Corp. v. Nigerian Nat'l Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991). See also Woodard v. Hardenfelder, 845 F. Supp. 960, 966 (E.D.N.Y. 1994). Motions for reargument should not be used to permit a party "to reargue those issues already considered when a party does not like the way the original motion was resolved." In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996). [ Page 4]
Mr. Soni fails to cite any controlling factual or legal matters that were overlooked in my August 12 Order. To the contrary, Mr. Soni's motion for reconsideration is little more than a reiteration of the arguments he initially made. In addition, Mr. Soni now cites a number of legal authorities in support of his substantive arguments that were not cited in his initial submission,*fn2 and, thus, cannot appropriately be relied upon now. Since Mr. Soni has not identified controlling factual or legal matters that were overlooked and is attempting to rely on "new" authorities, he has failed to show any valid basis for reconsideration.
Finally, upon reviewing Mr. Soni's motion and reconfirming the validity of the conclusions reached in my August 12 Order, I have discovered an additional authority that supports one of the conclusions I reached there. In rejecting plaintiffs' contention that ProQuest's fee application was deficient because it did not address the factors cited in Hensley v. Eckerhart, 461 U.S. 424 (1983), that may, in some cases, result in an adjustment of the lodestar figure, I noted: "The twelve additional factors in Hensley may serve to increase or decrease the lodestar figure, [ Page 5]
but there is no requirement that a party seeking attorneys' fees must separately address the twelve Hensley factors in order to prove the reasonableness of the figure sought. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, supra, 478 U.S. at 564-65" (August 12 Order at 16-17). An additional authority supporting this conclusion is Sizemore v. Electronic Pre-Press Sys., Inc., 90 Civ. 5042 (MEL)(MHD), 1993 WL 535175 at *3 n.l (S.D.N.Y. Dec. 21, 1993) (lodestar figure enjoys a "strong presumption" of correctness; Hensley factors need be addressed only where one party seeks to adjust the lodestar figure).
Since Mr. Soni has failed to demonstrate any valid reason why I should reconsider the conclusions reached in my August 12 Order, his motion for reconsideration is denied in all respects.