United States District Court, S.D. New York
April 27, 2004.
CAMPERS' WORLD INTERNATIONAL, INC., Plaintiff, Counter-Defendant -against- PERRY ELLIS INTERNATIONAL, INC., Defendant/Counter and Cross-Plaintiff, and ARK INDUSTRIES, INC., Defendant/Cross-Defendant, -against- EUROPE CRAFT IMPORTS, INC., ECI SPORTSWEAR, INC., and ARNOLD SIMON, Additional Counter-Defendants
The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
OPINION AND ORDER
The Defendants/Cross-Defendants Aris Industries, Inc., Europe Craft
Imports, Inc., ECI Sportswear, Inc., and Arnold Simon (the "Aris
Parties") request to file a second summary judgment motion based on both
the settlement agreement and the release is denied.
First, contrary to the contention of the Aris Parties (letter from
Marjorie Berman to Judge Patterson of 4/23/04, at 1), the prior motion
was not made before discovery took place. Certain discovery had taken
place, e.g., depositions were taken of Mr. Guy Kinberg and Mr. Mark Stern key witnesses on the fraud claim. See Campers' World Int'l. Inc. v. Perry
Ellis Int'l. Inc., No. 02 Civ. 453, 2003 WL 21403959, at * 4 (S.D.N.Y.
June 18, 2003) (citing depositions of Mr. Kinberg and Mr. Stern).
Second, it is the Court's practice to advise parties that bringing
summary judgment motions prior to the end of discovery will prevent that
party from bringing the same motion on the same grounds at the close of
Third, it is improper for a party to file a successive motion for
summary judgment which is not based upon new facts and which seeks to
raise arguments it could have raised in its original motion. Siemens
Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552 (S.D.N.Y.
2004) (denying to use court's discretion to review successive summary
judgment motion because no new facts or arguments were raised in the
second motion that could not have been raised on the first motion for
Fourth, in its prior summary judgment motion, the Aris Parties had a
full opportunity to raise the matter of law arguments under New York law
that they now propose to make.
IT IS SO ORDERED.
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