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KOEHLER v. THE BANK OF BERMUDA LIMITED

United States District Court, S.D. New York


August 9, 2005.

LEE N. KOEHLER, Plaintiff,
v.
THE BANK OF BERMUDA LIMITED, Defendant.

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

In an opinion reported at 2005 WL 551115 (S.D.N.Y. Mar. 9, 2005) ("the March 9 Opinion"), the Court dismissed with prejudice the proceedings commenced by Lee Koehler against the Bank of Bermuda Limited ("BBL"). Familiarity with the March 9 Opinion and the prior opinions cited therein is assumed. Koehler now moves for reconsideration of the March 9 Opinion and its accompanying order. BBL opposes that motion.

It is unnecessary to recount the March 9 Opinion at length. I held, first, that "the settlement between Koehler and [A. David] Dodwell discharges any rights Koehler may have had to pursue claims against BBL, Dodwell's purported garnishee," since despite the parties' intent the "reservation of rights" doctrine did not apply as a matter of law, 2005 WL 55115, at *7; and second, that even if the reservation of rights doctrine applied to BBL, nevertheless Koehler's claims against it fail because this Court does not have and never had in rem jurisdiction over Dodwell's share certificates. Id.

  Koehler's motion for reargument of the March 9 Opinion is governed by Local Civil Rule 6.3, which provides in respect of a motion for reargument: "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." The Rule is enforced in accordance with its plain language. It is generally held that on a motion for reargument, "controlling" decisions or facts "overlooked" by the court are limited to matters "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). Moreover, a reargument motion may not be buttressed by factual or legal arguments not previously asserted. "[T]o be entitled to reargument, [the movant] must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Kunica v. St. Jean Fin., Inc., 63 F.Supp. 2d 342, 345-46 (S.D.N.Y. 1999). The latter requirement reflects the principle that a party may not use a motion for reargument 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), a limitation designed to ensure finality and prevent a motion for reargument from becoming a vehicle by which a losing party may examine a decision "and then plug? the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F.Supp. 169, 170 (S.D.N.Y. 1988).

  Koehler's motion fails entirely to satisfy these demanding criteria. His brief is replete with citations to inapposite authorities and legal or factual arguments which were not previously asserted and are unsound in any event. No extended discussion is necessary. It is sufficient to observe that Koehler identifies no factual matters or controlling decisions the Court overlooked in the March 9 Opinion in respect of its linchpin conclusions that (1) the reservation of rights doctrine does not apply "in the context of a garnishment proceeding," 2005 WL 551115, at *6, and (2) the Court's lack of in rem jurisdiction over Dodwell's share certificates bars Koehler's claims against BBL.

  One aspect of the reargument motion deserves comment. Koehler objects on procedural and substantive grounds to this Court's conclusion in the March 9 Opinion that notwithstanding his 1993 One aspect of the reargument motion deserves comment. Koehler objects on procedural and substantive grounds to this Court's conclusion in the March 9 Opinion that notwithstanding his 1993 Order, the late Judge Ward "had no authority to require BBL to transfer Dodwell's shares to Koehler." 2005 WL 551115, at *16. But Koehler glosses over the fact that Judge Ward issued his order ex parte, solely on the basis of papers presented by Koehler which did not mention that the share certificates in question were located in Bermuda and had never been in New York. Judge Ward might very well have assumed from Koehler's sketchy papers that the certificates were lodged in BBL's New York branch. Had Koehler made plain to Judge Ward that the certificates were in Bermuda and had never been within the Southern District of New York, I think it likely this able, experienced and meticulous Judge would have taken a different view of the matter.

  Accordingly Koehler's motion for reargument of the Court's March 9 Opinion is denied. The consequence is that, in accordance with that Opinion, Koehler's proceedings against BBL in this Court are dismissed with prejudice. But there is one more aspect of the case with which I must deal. The most recent correspondence of counsel*fn1 demonstrate that a counterclaim asserted in these proceedings by BBL against Koehler remains pending. In that circumstance, this Court's dismissal of Koehler's claims against BBL would be appealable only if I were to invoke Rule 54(b), Fed.R.Civ.P., and direct the Clerk to enter judgment in BBL's favor and against Koehler on those claims. Second Circuit cases require a District Court to make a statement justifying its Rule 54(b) direction for entry of a partial judgment, and the Court of Appeals, consistent with its distaste for piecemeal appeals, reserves the right to vacate the judgment as improvidently made. Koehler at this time, the judgment dismissing Koehler's claims against BBL would become appealable as a final and complete judgment, without recourse to Rule 54(b). But if BBL presses its counterclaim against Koehler (which would be litigated with appropriate pretrial discovery), then the question arises as to whether this Court should make a Rule 54(b) direction to the Clerk in respect of the ruling in BBL's favor. Counsel have not been heard on that question.

  In these circumstances, counsel for BBL are directed, not later than September 9, 2005, to file and serve a letter setting forth their intentions and their views on a Rule 54(b) direction, should that eventuality come to pass. Counsel for Koehler are directed to file and serve a letter response on or before September 20, 2005. The Court will then make such further order as is appropriate. Discovery on BBL's counterclaim is stayed pending the Court's further order.

  The foregoing is SO ORDERED.


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