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United States District Court, S.D. New York

July 8, 2005.

CHERI ALBURY, Plaintiff,
J.P. MORGAN CHASE (formerly known as The Chase Manhattan Bank), Defendant.

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge


I. Introduction

Plaintiff moves for reconsideration of my Memorandum Opinion and Order dated March 31, 2005 ("March 31 Opinion"). The parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, plaintiff's motion is denied in all respects.

  II. Facts

  The facts giving rise to this action are set forth on detail in the March 31 Opinion, familiarity with which is assumed. For present purposes it is sufficient to note that this is an employment discrimination action in which plaintiff alleges that her employment with defendant was wrongfully terminated as the result of discrimination on the basis of race, color, national origin, gender and age. Prior to the termination of her employment, plaintiff had worked for defendant and its predecessors for more than 30 years.

  In my March 31 Opinion, I concluded that, with respect to plaintiff's claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., plaintiff had failed to offer evidence sufficient to sustain a McDonnell Douglas prima facie case because she had failed to offer evidence that her employment was terminated under circumstances that would give rise to an inference of discrimination. With respect to plaintiff's age-discrimination claim, I concluded that plaintiff had failed to sustain her burden at the third step of the McDonnell Douglas analysis.*fn1

  III. Analysis

  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 Sec. 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 Court on the underlying motion." Am. 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., Nat'l Ass'n 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. Nat'l Broad. Co., 760 F. Supp. 47, 48 (S.D.N.Y. 1991); Ashley Meadows Farm, Inc. v. Am. Horse Shows Ass'n, 624 F. Supp. 856, 857 (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 Res. Real Estate Ltd P'ships Sec. Litig., 850 F. Supp. 1105, 1151 (S.D.N.Y. 1994), quoting Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 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 & Fid. 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). A party should not use a motion for reconsideration "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).

  Plaintiff's motion fits none of the criteria of a proper motion for reconsideration.

  First, plaintiff claims that I incorrectly resolved a disputed issue of fact. Specifically, plaintiff claims that her termination for accessing confidential information in conjunction with her evidence that defendant did not terminate three other individuals who had allegedly asked plaintiff to access confidential information was sufficient to give rise to an inference of discrimination (Plaintiff's Memorandum of Law in Support of Plaintiff's Motion to Reconsider, dated April 19, 2005 ("Plaintiff's 4-19-05 Memo."), at 7). This contention is nothing more than an attempt to revisit issues that I have already decided. Although plaintiff claims that I resolved the issue incorrectly, she does not cite any controlling facts or law that were called to my attention in prior submissions and overlooked.

  Second, plaintiff claims that I made a credibility determination by allegedly concluding that she had not been cooperative during the course of defendant's internal investigation of plaintiff (Plaintiff's 4-19-05 Memo. at 8). Plaintiff is incorrect. Although I relied on the undeniable fact that defendant had concluded that plaintiff had failed to cooperate in the internal investigation (Cascio Deposition Exhibit I, numbered JPMC 000023-24, and annexed as part of Exhibit J to the Affidavit of Stacey L. Blecher, Esq., sworn to May 14, 2004 ("Blecher Aff."); Heubsch Deposition at 64, annexed as Exhibit I to Blecher Aff.),*fn2 as a ground to distinguish the more lenient treatment afforded to plaintiff's proffered comparators, I made no finding concerning whether plaintiff had, in fact, been uncooperative in defendant's investigation (see March 31 Opinion at 26-27). Moreover, even I had made the determination that plaintiff claims I had made, that error would not be a valid ground for reconsideration. Plaintiff's remedy for such an error is appellate review, not a motion for reconsideration. RMED Int'l, Inc. v. Sloan's Supermarkets, Inc., 207 F. Supp. 2d 292, 296 (S.D.N.Y. 2002) ("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."); see also Pannonia Farms Inc. v. USA Cable, 03 Civ. 7841 (NRB), 2004 WL 1794504 at *2 (S.D.N.Y. Aug. 10, 2004) ("A motion for reconsideration is not, however, a `second bite at the apple' for a party dissatisfied with a court's ruling.").

  Third, plaintiff claims that in granting summary judgment on her age-discrimination claim at the third step of the McDonnell Douglas analysis, I "ignored . . . all of the evidence presented by the Plaintiff that the Defendant's proffered reasons for her termination were pretextual" (Plaintiff's 4-19-05 Memo. at 9). However, as I noted at pages 19-20 of the March 31 Opinion, Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) teaches that proof of pretext at the third step of the McDonnell Douglas analysis may or may not be sufficient to defeat a defendant's summary judgment motion; there is no "bright line" test. In my March 31 Opinion, I made the case-specific analysis that Schnabel required and concluded that plaintiff's showing was insufficient to give rise to a genuine issue of fact. Far from ignoring controlling authorities, I performed the precise analysis that those authorities called for. Although plaintiff disagrees with my conclusion, she has not shown that I failed to follow controlling legal authorities or facts.

  Plaintiff's reply memorandum makes one additional point. Plaintiff claims that reconsideration is warranted because she "raises new facts and law" (Plaintiff's Reply Memorandum of Law in Support of Plaintiff's Motion to Reconsider, dated May 23, 2005 ("Plaintiff's 5-23-05 Memo.") at 1), and cites a number of comments directed toward her age that were not cited in her brief in opposition to defendant's motion for summary judgment (Plaintiff's 5-23-05 Memo at 6).

  Except where a movant is relying on new facts that could not have been previously discovered or newly promulgated law, additional facts or new legal theories cannot be asserted by way of a motion for reconsideration.


A motion for reargument is not an occasion to reassert arguments previously raised, but dismissed by the court or to plug gaps in the movant's original arguments exposed by the court's ruling. Similarly, a motion for reargument cannot be used as a vehicle for asserting new facts or legal theories in support of the original motion. 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 ruling."
1 Michael C. Silberberg & Edward M. Spiro, Civil Practice in the Southern District of New York § 11:36 at 11-93 — 11-94 (2d ed. 2004) (footnotes omitted). Plaintiff's attempt to assert new facts that were not previously called to my attention is improper and provides no basis for reconsideration.

  Since plaintiff has not demonstrated the existence of controlling law or facts that were previously called to my attention and overlooked and has not shown that there are newly discovered facts or newly promulgated law, her motion for reconsideration must be denied. IV. Conclusion

  Accordingly, for all the foregoing reasons, plaintiff's motion for reconsideration is denied in all respects.


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