The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM OPINION AND ORDER
The above captioned cases, 01 Civ. 1339 ("Zoll I") and 02 Civ. 3652
("Zoll"), were consolidated for trial by an Opinion and Order of this
Court filed on October 2, 2003. 2003 WL 22283830 (S.D.N.Y., Oct. 2, 2003)
(the "October 2 Opinion").*fn1 Together, these two actions concern
alleged violations of Plaintiffs rights of privacy and rights of
publicity, trespass, and unjust enrichment arising from the production and
distribution of two promotional videotapes,
referred to as Plaintiffs exhibits 21 and 23 in Zoll I, that make use of
images of Plaintiff first recorded in 1978.
This is not the first time that this Court has been called upon by the
parties to resolve pretrial motions in these cases. Together, parties to
these two causes of action have requested and received the full attention
of this Court and Magistrate Judge Francis to resolve pre-trial matters
on six prior occasions, including one previous motion for
reconsideration. See 2003 WL 22283830 (S.D.N.Y., Oct. 2, 2003); 2003 WL
1964054 (S.D.N.Y., April 24, 2003); 2002 WL 31873461 (S.D.N.Y., Dec. 24,
2002); 2002 WL 485733 (S.D.N.Y., March 29, 2002); 2002 WL 226692
(S.D.N.Y., Feb. 14, 2002); 2001 WL 1550943 (S.D.N.Y., Dec. 5, 2001). I
have recited the facts underlying this litigation at length in prior
decisions. See e.g. 2002 WL 31873461 (S.D.N. Y., Dec. 24, 2002) and 2003
WL 1964054 (S.D.N.Y., April 24, 2003). Judge Francis also provides
extensive history in his Report and Recommendation reported at 2001 WL
1550943 (S.D.N.Y., Dec. 5, 2001). I assume familiarity with these and the
other cited decisions rendered in this case and move directly to the
merits of the present motion.
Before the Court is Defendants' motion pursuant to Local Rule 6.3 for
partial reconsideration of this Court's October 2, 2003 Opinion.
Defendants suggest two grounds for their motion. First, they ask the
Court to reconsider the statute of limitations analysis in the October
2, 2003 Order on the basis of overlooked facts. Second, Defendants
request reconsideration of this Court's choice of law assignment in the
October 2, 2003 Opinion. For reasons stated more fully below, Defendants'
motion is granted.
"The standard for granting a motion to reconsider under Local Rule 6.3
`is strict, and reconsideration 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.' Shrader v. CSX
Transportation, Inc., 70 F.3d 255, 256 (2d Cir. 1995). Reconsideration
`should not be granted where the moving party seeks solely to relitigate
an issue already decided.' Id. Thus, the rule `is to be narrowly
construed and strictly applied in order to discourage litigants from
making repetitive arguments on issues that have been thoroughly
considered by the court.' Range Road Music, Inc v. Music Sales Corp.,
90 F. Supp.2d 390, 391-2 (S.D.N.Y. 2000). Nor may the moving party use
such a motion to `advance new facts, issues or arguments not previously
presented to the court.' Bank Leumi Trust Co. of New York v. Istim, Inc.,
902 F. Supp. 46, 48 (S.D.N.Y. 1995). These limitations are designed to
ensure finality and prevent the rule from becoming a vehicle by which a
losing party may examine a decision `and then plug the gaps of the lost
motion with additional matters.' Carolco Pictures, Inc. v. Sirota,
700 F. Supp. 169, 170 (S.D.N.Y. 1988)." Zoll v. Jordache Enterprises
Inc. 2003 WL 1964054, at *1-2 (S.D.N.Y., April 24, 2003).
The present motion is a wholly appropriate use of Local Rule 6.3. In
the October 2, 2003 Opinion this Court resolved two standing motions and
dramatically altered the landscape of the above captioned litigation. In
so doing the Court overlooked two small but critical artifacts created as
a consequence of that Opinion. The parties have used the present motion
to highlight these issues and afforded the Court: an opportunity to
clarify and refine the October 2 Opinion.
A. Statute of Limitations
It is useful to reiterate the dates on which these two actions were
filed. The complaint in Zoll I, naming only Jordache as a defendant, was
filed on February 23, 2001. The complaint in Zoll II, naming both
Jordache and Ruder Finn as defendants, was filed on May 13, 2002.
In their Motion for Reconsideration, Defendants assert that any claims
against Ruder Finn relying on New York Civil Rights Law §§ 50 and 51
should be dismissed as time-barred. There are three critical elements to
any statute of limitations analysis: the duration of the limitation, the
date on which time begins to run, and the date, if any, on which the
clock was stopped.
With respect to the first element, the statute of limitations on right
of privacy claims in New York, including New York Civil Rights Law §§
50 and 51, is one year. See N.Y. CPLR § 215. This is not contested by
The second is the critical element in dispute on Defendants' present
motion. In the motions decided by this Court's October 2, 2003 Opinion,
for which Defendants now seek reconsideration, the Defendants argued that
Plaintiffs cause of action in Zoll II was time barred. Defendants'
analysis in their original motions asserted, wrongly, that time should
have begun to run in April 2001, the date on which Defendants contended
that Plaintiffs 23 was distributed to KTLA-TV, not May 16, 2001, when the
tape was broadcast on KTLA-TV.*fn2 In their papers on
that motion neither Plaintiff nor Defendants discussed any earlier
broadcasts of this particular tape. The Court, therefore, used May 16,
2001 as the date of first broadcast in its statute of limitations
analysis in the October 2 Opinion and concluded that the statutory claims
against Ruder Finn in Zoll II were timely.
There are two tapes at issue on Defendants' present motion, Plaintiffs
Exhibits 21 and 23. Plaintiff now concedes that Plaintiffs Exhibit 21 was
first broadcast to a public audience on February 15, 2001. See Plaintiffs
Memorandum of Law in Opposition to Defendants' Motion for Reconsideration
of October 1, 2003 Opinion and Order by Judge Haight ("Plaintiff's
Response"), p. 4. Therefore, I find that the one-year ...