United States District Court, S.D. New York
August 2, 2005.
WOMEN'S INTERART CENTER, INC. Plaintiff,
NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION (EDC), ANDREW M. ALPER, President of EDC; JERYLN PERINE, Commissioner, Department of Housing Preservation and Development; CITY OF NEW YORK; DANIEL DOCTOROFF, Deputy Mayor, City of New York; and MICHAEL BLOOMBERG, Mayor, City of New York, Defendants.
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
MEMORANDUM AND ORDER
On May 23, 2005, this Court granted summary judgment in favor
of Defendants on Plaintiff Women's Interart Center's (WIC) two §
1983 claims and dismissed WIC's remaining state law causes of
action for lack of subject matter jurisdiction. (See Opinion,
dated May 23, 2005 [Op.] at 91-92). WIC now moves pursuant to
Federal Rule of Civil Procedure 59 (e) and Local Civil Rule 6.3
for the Court to reconsider and vacate (1) its entry of summary
judgment on WIC's First Amendment retaliation claim and (2) its
decision to convert Defendants' Rule 12 (b) (6) motion to dismiss
into a motion for summary judgment.
The Court presumes familiarity with its previous Opinion and
therefore will not reiterate the factual background of the case. "The standards governing a motion to alter or amend judgment
pursuant to Rule 59 (e) and motions for reconsideration or
reargument pursuant to Local Rule 6.3 are the same." Word v.
Croce, No. 00 Civ. 6496, 2001 WL 755394, at * 2 *S.D.N.Y. July
5, 2001). The standard for granting a motion to reconsider "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. CSC Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995);
see also Range Road Music, Inc. v. Music Sales Corp.,
90 F.Supp.2d 390, 392 (S.D.N.Y. 2000) (holding that a motion for
reconsideration "is appropriate only where the movant
demonstrates that the Court has overlooked controlling decisions
or factual matters that were put before it on the underlying
motion . . . and which, had they been considered, might have
reasonably altered the result before the court.").
Furthermore, a motion for reconsideration is not one in which a
party may 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). Thus
Local Rule 6.3 should be "narrowly construed and strictly
applied" to avoid repetitive arguments already submitted to the Court. National Congress for Puerto Rican Rights v. City of New
York, 191 F.R.D. 52, 53 (S.D.N.Y. 1999) (citation omitted).
Moreover, the parties "may not address facts, issues or arguments
not previously presented to the Court," U.S. Titan v. Guangzhou
Zhen Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998)
(citations omitted), because a motion to reconsider should never
act "as a substitute for appealing from a final judgment."
Bonnie & Co. Fashions, Inc. v. Bankers Trust Co.,
170 F.R.D. 111, 113 (S.D.N.Y. 1997) (citation omitted).
WIC makes three arguments as to why the Court should reconsider
its granting of summary judgment on WIC's First Amendment
retaliation claim. First, WIC contends that in concluding "there
was no evidence in the record suggesting that [Defendant] Perine
herself was even aware of WIC's lawsuits and other formal
grievances against the City/HPD over the Buildings disrepair
prior to 2002," the Court overlooked Perine's own deposition
testimony, which, WIC claims, raises a "material factual dispute"
as to whether Perine was aware of WIC's protected activity under
the First Amendment's Petition Clause. (Memorandum of Law in
Support of Plaintiff's Motion for Reconsideration ["Pl. Mem."] at
2-3). Specifically, WIC cites to the following exchanges from
page 38 of Perine's Deposition, which was attached to her
affidavit submitted in conjunction with Defendants' original motion to dismiss, and page 34 of such
transcript, which was not submitted by either side in conjunction
with Defendants' motion to dismiss:
Q It was your understanding that the only
justification that was provided by [WIC] for the rent
arrears involved maintenance issues in the building,
and not the rent level itself, is that right?
A That's what I recall.
(Perine Dep. at 38; Pl. Mem. at 3).
Q When, if at all, did you first learn that
[conditions and problems in the Building] was the
reason that [WIC was] not paying rent, at least in
A Well, that was certainly stated by somebody in that
meeting. I mean, I don't remember who exactly made
the case, but somebody certainly did make that case
in the meeting with Lillian [sic] Barrios-Paoli.
Q Did you consider HPD tenants who withhold rent
because of problems with conditions in their
buildings to be, I think the word you used was
MS SHAPIRO: Objection.
A I would consider commercial tenants, to be so
actually, yes, because they receive a net lease and
we were not our involvement with commercial tenants
is very different than our involvement with
(Perine Dep. at 34; Pl. Mem. at 3).
WIC's argument is unpersuasive for two reasons. First, because
page 34 of Perine's deposition was not included in either side's
submissions on Defendants' motion for summary judgment, the Court
may not now consider it in ruling on WIC's motion to reconsider.
See U.S. Titan, 182 F.R.D. at 100. Further, the fact that
Perine learned at the 1997 settlement meeting that WIC withheld
rent specifically because of the Building's disrepair does not by itself suggest that Perine was
also aware of WIC's earlier lawsuits against and complaints to
HPD over the Building's disrepair, which were the only activities
actually constituting protected conduct under the Petition
Clause.*fn1 Thus, the above-cited deposition testimony does
not alter the Court's conclusion that Perine was not aware of
WIC's protected First Amendment activities prior to
2002.*fn2 WIC also argues that in concluding "there was nothing
procedurally or substantively irregular about HPD's refusal to
commence the process of evicting the recalcitrant [Building]
tenants without an MOU in place," the Court overlooked numerous
citations to documentary evidence and sworn testimony of City
employees contained in ¶¶ 65-90 of the Lewitin Declaration, which
allegedly show that Perine and HPD refused to evict these tenants
"while knowing full well that the [Building sale] could not be
consummated until they did so and conceding that it was there
duty to do so." (Pl. Mem. at 4-5). However, HPD and Perine's
knowledge that the Building sale could not close without
completion of these evictions has nothing to do with whether or
not HPD in fact had a longstanding policy of not relocating
tenants from publicly-owned buildings without an MOU in place
with the public entity that owns the building. Moreover, while
many of the aforementioned documents and deposition excerpts do
suggest that HPD and Perine knew the responsibility for evicting
recalcitrant Building tenants ultimately fell to HPD, none of
these citations contradict HPD attorney Matthew Shafit's
statement in an October 2000 email to then- EDC President Robert
LaPalme that HPD typically required MOU's with the public
entities for whom it did tenant relocation work. (Lewitin Decl., Ex. 41). Thus, the aforementioned citations
do not create a reasonable inference that Perine and HPD's
refusal to begin eviction proceedings without an MOU was in any
way procedurally or substantively irregular.
Finally, WIC argues the Court's finding that Perine's 2002
alleged bad acts were not causally connected to the decision to
terminate the IRSC Project "wholly overlooks "Perine's raft of
actions preventing the relocation or eviction of the recalcitrant
tenants." (Pl. Mem. at 5-6). However, this argument is based on a
misreading of the Court's May 23, 2005 Opinion, because, as
discussed above, the Court dealt with HPD and Perine's
foot-dragging on tenant evictions earlier by concluding that
there was nothing procedurally or substantively irregular about
the delays. In contrast, the 2002 bad acts to which the Court was
referring were Perine's alleged denigration of the IRSC Project
and WIC to EDC and the Deputy Mayor's Office, her alleged
participation in the decision to terminate the Project, and
Defendants' alleged creation of new Project Closing conditions,
and WIC does not now point to any evidence before the Court at
the time of its decision which tends to show that these alleged
bad acts actually caused the termination of the IRSC Project. In sum, WIC has failed to provide sufficient grounds for the
Court to reconsider its granting of summary judgment in
Defendants' favor on WIC's First Amendment retaliation claim.
In the alternative, WIC argues that the Court should not have
converted Defendants' Rule 12(b)(6) motion to dismiss into a
motion for summary judgment in the first place. Specifically, WIC
contends that Defendants' submission of evidentiary material in
conjunction with their motion to dismiss was not enough to put
WIC on notice that conversion to summary judgment was likely.
(Pl. Mem. at 7). Because Defendants based their motion in part on
F.R.C.P. 12(b)(1), which typically permits court to consider
evidence outside of the pleadings, and because Rule 12(b)(1)
motions cannot be converted into motions for summary judgment,
WIC argues that it was entirely reasonable to believe that its
own evidentiary submissions "were limited to establishing subject
matter jurisdiction" rather than the legal sufficiency of its
First Amendment and Equal Protection Claims, which was the issue
presented by Defendants' Rule 12(b)(6) motion that was converted
into a motion for summary judgment. (Id. at 6-7).
However, in making this lack of notice argument, it is WIC who
overlooks an important fact in the record and an important legal
principle governing Rule 12(b)(1) motions to dismiss. First, the Court itself expressly put WIC on notice of the
possibility of conversion of Defendants' motion to dismiss into a
summary judgment motion when, at the June 19, 2003 hearing on
WIC's application for a temporary restraining order, it told the
parties that it was ordering expedited discovery "so that the
motion that [Defendants] make will end up being a motion for
summary judgment." (Transcript of proceedings held on June 19,
2003, at 40-41). Further, as the Court emphasized in its May 23,
2005 Opinion, when a Rule 12(b)(1) motion focuses on the
substantiality of the federal causes of action, the court
considering the motion "should examine only `the complaint on its
face, without resort to extraneous matter." (Op. at 58-59 (citing
Giulini v. Blessing, 654 F.2d 189, 192 (2d Cir. 1981); Hagans
v. Levine, 415 U.S. 528, 539-41, 94 S.Ct. 1372, 39 L.Ed.2d 577
(1974)). Thus, the only reasonable conclusion for WIC to draw
from Defendants' submission of evidentiary materials in
connection with their motion to dismiss was that such materials
concerned the legal sufficiency of WIC's federal claims, which is
a Rule 12(b)(6) issue, and, as such, created "the possibility
that the motion would be converted into one for summary
judgment." In re G&A Books, Inc., 770 F.2d 288, 295 (2d Cir.
1985). WIC's lack of notice argument is therefore without merit. Accordingly, for the foregoing reasons, WIC's motion for the
Court to reconsider and to vacate or amend its May 23, 2005
Opinion is DENIED in its entirety.