The opinion of the court was delivered by: PETER LEISURE, District Judge
Plaintiff Raymond H. Wechsler, the administrative trustee
overseeing the assets of Towers Financial Corporation
("Towers"),*fn1 brings this action against Hunt Health
Systems, Ltd. ("Hunt Health") and affiliated entities for alleged
breach of contract and fraudulent conveyance in connection with
the parties' factoring agreement ("HCP agreement" or
"agreement"). The Court bifurcated the case on August 8, 2003,
separating the breach of contract and fraudulent conveyance
claims. Wechsler v. Hunt Health Systems, Ltd., No. 94 Civ.
8294, 2003 U.S. Dist. LEXIS 13775, at *1 (S.D.N.Y. Aug. 8, 2003).
After a ten day bench trial on the breach of contract
claim,*fn2 this Court entered a final judgment on August 11,
2004 ("Order" or "August 11 Order") finding defendants materially
breached the agreement and awarding plaintiff damages and
prejudgment interest. Wechsler v. Hunt Health Systems, Ltd.,
No. 94 Civ. 8294, 2004 U.S. Dist. LEXIS 15926, at *1 (S.D.N.Y.
Aug. 11, 2004). Defendants filed a notice of appeal on September
Plaintiff now moves this Court, pursuant to Rules 52(b) and
59(e) of the Federal Rules of Civil Procedure and Rule 6.3 of the
Local Rules of the United States District Courts for the Southern
and Eastern Districts of New York ("Local Rule 6.3"), to amend or
reconsider the Order due to "`manifest errors of law or fact'"
and "`controlling authority or factual matters presented to the Court . . . and overlooked.'" Plaintiff's
Memorandum in Support of Plaintiff's Motion to Amend the Court's
Final Judgment Pursuant to Fed.R. Civ. P. 52(b) and 59(e)
("Pl.'s Mem.") at 2 (internal citations omitted). Plaintiff avers
that this Court (1) failed to find defendants breached paragraph
8(ix) of the HCP agreement, thus converting all outstanding
accounts into Rejected Accounts; (2) overlooked the effect of the
acceleration clauses, including their effect on the prejudgment
interest rate and; (3) erred in applying a 365 day limit on
factoring fees. For the reasons set forth below, plaintiff's
motion to amend or reconsider the judgment is denied.
The detailed factual history giving rise to this litigation is
painstakingly set out in this Court's August 11 Order, with which
the Court assumes familiarity. Towers entered into an accounts
receivable purchase contract with defendant Hunt Health on July
10, 1991. The contract failed on February 26, 1993, thereby
giving rise to the contract claims in this action, discussed and
decided by the August 11 Order. The Court held that defendants
materially breached the contract by (1) retaining post-contract
termination proceeds on accounts sold to Towers and; (2)
terminating the contract without paying liquidated
damages.*fn4 The Court awarded plaintiff $724,075 for damages arising from the breaches
and awarded prejudgment interest totaling $746,719, calculated
under New York's statutory rate of 9% per annum.
I. The Motion for Reconsideration Standard
"The standards governing motions for amendment of findings
under Rule 52(b), motions to alter or amend a judgment pursuant
to Rule 59(e), and motions for reconsideration pursuant to Local
Rule 6.3 are the same." 4200 Ave. K LLC v. Fishman, No. 00 Civ.
8814, 2001 U.S. Dist. LEXIS 5938, at *2 (S.D.N.Y. May 10, 2001);
see Defs.' Mem. at 1. For clarity's sake, the Court will refer
to plaintiff's motion as a motion to reconsider the judgment
under Local Rule 6.3. The motion to reconsider must be made
within ten days of entry of the judgment. Fed.R. Civ. P. 52(b);
59(e); Local Rule 6.3.
As this Court made clear in a previous ruling in this case,
see Wechsler v. Hunt Health Systems, Ltd.,
186 F. Supp. 2d 402, 410 (S.D.N.Y. 2002), a motion to reconsider 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 Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995). Further, the decision to grant or deny a
motion for reconsideration or reargument is in the "`sound
discretion of a district court judge and will not be overturned
on appeal absent an abuse of discretion.'" Davidson v. Scully,
172 F. Supp. 2d 458, 462 (S.D.N.Y. 2001) (Leisure, J.) (quoting
McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)). The
motion to reconsider cannot properly advance "new facts, issues
or arguments not previously presented to the court." Id. at
461. A party seeking reconsideration "is not supposed to treat
the court's initial decision as the opening of a dialogue in which that party may then use such a
motion to advance new theories or adduce new evidence in response
to the court's rulings." Polsby v. St. Martin's Press, Inc.,
No. 97 Civ. 690, 2000 U.S. Dist. LEXIS 596, at *3 (S.D.N.Y. Jan.
18, 2000) (internal citations omitted). A motion for
reconsideration "is not a substitute for appeal and may be
granted only where the Court has overlooked matters or
controlling decisions which might have materially influenced the
earlier decision." Morales v. Quintiles Transnat'l Corp.,
25 F. Supp. 2d 369, 372 (S.D.N.Y. 1998) (internal citations omitted).
In determining whether a motion for reconsideration should be
granted, Local Rule 6.3 should "be narrowly construed and
strictly applied so as to avoid repetitive arguments on issues
that have been considered fully by the Court." Dellefave v.
Access Temps., Inc., No. 99 Civ. 6098, 2001 U.S. Dist. LEXIS
3165, at *1 (S.D.N.Y. Mar. 22, 2001); see Sequa Corp. v. GBJ
Corp., 156 F.3d 136, 144 (2d Cir. 1998) (noting that a motion
for reconsideration should not sound as a dinner bell for a party
wishing to take a second bite at the apple).
II. Plaintiff's Motion to Reconsider the Judgment
Plaintiff's arguments seem to be reincarnations of those
settled by the August 11 Order. Plaintiff argues that the Court
rendered its opinion blind to the evidence before it, but points
to nothing on the record that the Court did not fully consider.
Nor does plaintiff identify ignored precedent which, upon
reconsideration, would materially alter the judgment of this
Court. As a threshold matter, these arguments are not properly
raised in a motion to reconsider. A favorable construction of
plaintiff's argument coupled with the complex procedural and
factual history of this litigation, however, prompt the Court to
clarify the August 11 Order. Plaintiff's three arguments in
support of reconsideration are addressed in turn below. A. Plaintiff's Claim that this Court Failed to Find Hunt
Health Breached Paragraph 8(ix) of the HCP Agreement and
Overlooked the Consequences Thereof
Construed most favorably, plaintiff's first argument follows in
three parts. First, plaintiff contends that this Court failed to
consider defendants' actions as a material breach of paragraph
8(ix) of the agreement which warrants that Hunt Health "will do
nothing to impair [Towers'] right in any Account purchased by
[Towers]." HCP agreement, Plaintiff's Exhibit 2 ("Pl.'s Exh. 2"),
¶ 8. Because of this oversight, the Court failed to define all
outstanding accounts as Rejected Accounts*fn5 counting
toward the total indebtedness by which damages were determined.
Thus, the Court underrepresented plaintiff's proper damages
Upon outlining plaintiff's argument, however, the Court
experiences an overwhelming sense of déjà vu. Plaintiff
advanced and the Court accepted, in part, this claim in the
August 11 Order. To remind plaintiff: "[P]laintiff contends that
accounts for which Hunt Health received payment during 1993
became Rejected Accounts. . . . The Court therefore finds that
accounts for which Hunt Health received and kept payments
throughout 1993 became Rejected Accounts, and the advances on
these accounts became an indebtedness." Wechsler, 2004 U.S.
Dist. LEXIS 15926, at *54, 64. The Court also adjudged that all
accounts coded as appealed were Rejected. Id. at *54-55.
However, plaintiff failed to show by a preponderance ...