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ANTONMARCHI v. EDISON

United States District Court, S.D. New York


December 8, 2005.

ARIEL ANTONMARCHI, Plaintiff,
v.
CON EDISON, Defendant.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM AND ORDER

INTRODUCTION

Before the Court is the defendant's motion made pursuant to Local Civil Rule 6.3 of this court. Through that motion, the defendant has requested that the Court reconsider and/or clarify an order it issued previously. The plaintiff opposes the motion; it is addressed below.

  BACKGROUND

  On November 2, 2005, the Court convened a telephonic conference to address a discovery dispute that had been brought to the Court's attention via correspondence dated November 1, 2005, from counsel to the plaintiff. In that writing, counsel to the plaintiff explained that "[o]n Friday, October 28, 2005, two months after the close of discovery, and only one week prior to the deadline for service of Defendant's dispositive motion, Defendant served the Plaintiff's counsel with a stack of documents approximately 4-inches thick, none of which was bates-stamped." Counsel to the plaintiff explained that the "letter from Defendant's counsel [that accompanied the documents] represents that he is `certain the enclosed documents have already been produced[;]' a preliminary review of the voluminous materials [made by the plaintiff's counsel] revealed otherwise." In his November 1, 2005 correspondence, the plaintiff's counsel made citation to Fed.R.Civ.P. 37(c) and requested that the Court convene a conference "to address Defendant's use of these documents in its motion for summary judgment."

  During the telephonic conference noted above, counsel to the defendant explained that, during the pretrial discovery phase of this litigation, documents in the possession of the defendant that were responsive to the plaintiff's discovery demands came to him in "dribs and drabs." Counsel to the defendant explained further that, during the same period, he was very busy with other matters and, as a consequence, discovery pertinent to the instant litigation "lost its urgency" as he focused on other pressing matters. In preparing to serve and file a dispositive motion by November 4, 2005, as required by the parties' case management plan, counsel to the defendant became aware that his own file did not contain complete and accurate information respecting exactly what documents had been disclosed by the defendant to the plaintiff during the pretrial discovery phase of the litigation. Therefore, on October 28, 2005, the defendant's counsel disclosed the documents noted above, some of which the defendant's counsel was confident had been disclosed to the plaintiff previously. However, which of the documents disclosed to the plaintiff on October 28, 2005, had been disclosed to him before that date remained a mystery to the defendant's counsel.

  During the telephonic conference, the defendant's counsel offered to travel to his adversary's office to review the material disclosed on October 28, 2005, to determine what quantum of that material had been provided previously to the plaintiff, that is, in advance of the date on which the Court had ordered that all discovery efforts cease, and what quantum of that material was "newly" disclosed material. However, counsel to the defendant advised the Court that no review of the material disclosed on October 28, 2005, could be made by him prior to the date on which the summary judgment motion papers were due to be filed with the court. Counsel to the defendant also advised the Court that he had requested that the assigned district judge enlarge the time for dispositive motion practice, but that application had been denied. Counsel to the defendant indicated to the Court that an application for reconsideration would be made to the assigned district judge but, at the time of the above-noted telephonic conference, no such application had been made.

  For his part, counsel to the plaintiff indicated that, inasmuch as the time period for the parties to engage in pretrial discovery activities had terminated, the plaintiff could not analyze the materials disclosed on October 28, 2005 effectively; more specifically, if the plaintiff determined that it was necessary to explore any "newly" disclosed information, he could not do so using the discovery tools provided by the Federal Rules of Civil Procedure. Therefore, the untimely disclosure of documents placed the plaintiff at a disadvantage and prejudiced the plaintiff.

  During the telephonic conference, the Court discussed Fed.R.Civ.P. 37(c) with the parties and, in particular, the "substantial justification" standard which insulates a party that fails to disclose information required to be disclosed by Fed.R.Civ.P. 26(a) or Fed.R.Civ.P. 26(e)(1) from the self-executing sanction that Fed.R.Civ.P. 37(c)(1) contains. The Court advised the defendant's counsel that the law office difficulties and pressures that he experienced did not amount to "substantial justification" for failing to disclose material to the plaintiff timely. After the telephonic conference concluded on November 2, 2005, the Court issued an order pursuant to Fed.R.Civ.P. 37(c)(1) precluding the defendant "from using as evidence at trial, at a hearing, or on a motion, any information contained in documents disclosed to the plaintiff on October 28, 2005." That order is the subject of the defendant's motion.

  The defendant seeks reconsideration of the Court's November 2, 2005 order because it maintains that: (1) by precluding the defendant from using information disclosed to the plaintiff on October 28, 2005, "at trial, at a hearing, or on a motion," the Court granted the plaintiff relief in excess of that which the plaintiff requested; (2) the plaintiff's discovery demands contained language that allowed the defendant to supplement its responses to those discovery demands until one week before the date fixed for the commencement of the trial of the action. As a result, since the trial was scheduled to commence approximately seven months from October 28, 2005, the disclosure made by the defendant on October 28, 2005, was timely and comported with the request made by the plaintiff that any supplemental disclosure be made to it no later than one week before the date fixed for the beginning of the trial; and (3) since the Court convened the telephonic conference on November 2, 2005, — one day after receiving correspondence from the plaintiff's counsel — the defendant's counsel, who was busy preparing the defendant's motion for summary judgment that was due to be filed with the court on November 4, 2005, did not have adequate time to research the issue raised in his adversary's correspondence and, thus, was not prepared to present all pertinent facts and arguments to the Court.*fn1

  DISCUSSION

  Local Civil Rule 6.3 of this court provides, in pertinent part, that a notice of motion for reconsideration or reargument "shall be served with . . . a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." "Thus, to be entitled to reargument and reconsideration, the movant must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion. . . . [A] party may not `advance new facts, issues or arguments not previously presented to the Court.'" Hamilton v. Garlock, Inc., 115 F. Supp. 2d 437, 438-9 (S.D.N.Y. 2000). A motion for reconsideration "is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved." In re Initial Public Offering Antitrust Litigation, No. 01 Civ. 2014, 2004 WL 789770, at *1 (S.D.N.Y. Apr. 13, 2004) (quoting Yurman Design Inc. v. Chaindom Enterprises, Inc., No. 99 Civ. 9307, 2003 WL 22047849, at * 1 [S.D.N.Y. Aug. 29, 2003]). The decision to grant or deny a motion such as the one before the Court is within the sound discretion of the Court. Id.

  In the instant case, the defendant has presented to the Court factual matters and made citation to case law that were not put before the Court when it entertained the underlying application by the plaintiff. The defendant's presentation of this material to the Court is improper. See Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993) (analyzing former Local Civil Rule 3[i], the predecessor to Local Civil Rule 6.3 of this court). The Court finds that when these factual matters and decisional law are excised from defendant's submission to the Court in support of its request for reconsideration, no controlling decisions or factual matters that were put before it on the underlying application made by the plaintiff were overlooked.

  The defendant has expressed surprise that the Court barred it from using "at a trial, at a hearing or on a motion" information that was not disclosed to the plaintiff until October 28, 2005, just days before the parties were directed to file any dispositive motion with the court. The defendant's surprise is curious because the plaintiff drew the defendant's attention to Fed.R.Civ.P. 37(c) in writings he submitted to the assigned district judge in late October 2005 and to the undersigned magistrate judge in connection with the controversy over the October 28, 2005 disclosure made by the defendant. Furthermore, the first sentence of the applicable provision of the Rule contains the following text:

A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing or on a motion, any witness or information not so disclosed.
Fed.R.Civ.P. 37(c)(1).

  Since a simple review of the express language of Fed.R.Civ.P. 37(c)(1) would have alerted the defendant that its failure to disclose material to the plaintiff during the period fixed by the Court for pretrial discovery, absent substantial justification, would expose it to the consequence that befell it, the defendant's surprise that the Court incorporated the sanction language found in Fed.R.Civ.P. 37(c)(1) into the November 2, 2005 order, is incredible. Moreover, as the Court noted, during the telephonic conference with the parties, the sanction imposed by Fed.R.Civ.P. 37(c)(1), for failing, without substantial justification, to make a disclosure timely, is self-executing. The Advisory Committee Notes to the 1993 Amendments to Fed.R.Civ.P. 37(c) make that clear:

The revision [to Fed.R.Civ.P. 37(c)] provides a self-executing sanction for failing to make a disclosure required by Rule 26(a), without need for a motion under subdivision (a)(2)(A). . . . This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing or on a motion, such as one under Rule 56.
  In resolving the dispute that was brought to the Court's attention, the Court did no more than incorporate into its order the relevant sanction language from Fed.R.Civ.P. 37(c)(1). The defendant's contention that the Court granted greater relief to the plaintiff than he requested, overlooks the conjunctive nature of the sanction language found in the pertinent provision of Fed.R.Civ.P. 37 that is reproduced above.

  The defendant maintains that its October 28, 2005 disclosure was timely because it was made within the period fixed by the plaintiff for supplementing pretrial disclosures. However, the defendant's position ignores the authority and responsibility of the Court to manage the cases before it. In the instant case, the Court directed that all discovery cease on or before September 2, 2005.

  In addition to requesting that the Court reconsider its November 2, 2005 order, the defendant has also asked the Court to clarify that order to make clear that the bar imposed upon the defendant's use of material disclosed to the plaintiff on October 28, 2005, is limited to that information that was "newly" disclosed to the plaintiff and does not extend to material disclosed to the plaintiff by the defendant during the period fixed by the Court for the parties to engage in pretrial discovery activities.

  The order issued by the Court immediately following the telephonic conference was intended to memorialize the Court's oral directive given to the defendant during the conference. That directive pertained solely to that quantum of information disclosed to the plaintiff by the defendant, for the first time, on October 28, 2005. The Court's written order inadvertently addressed all documents disclosed to the plaintiff on October 28, 2005. Disclosures made by the defendant to the plaintiff, prior to October 28, 2005, during the period fixed by the Court for pretrial discovery activities, are not subject to the order of the Court dated November 2, 2005.

  CONCLUSION

  In summary, the defendant's application, that the Court reconsider its order dated November 2, 2005, is denied. However, the November 2, 2005 order is hereby modified to make clear that the Fed R. Civ. P. 37(c)(1) sanction imposed on the defendant by that order pertains solely to information disclosed to the plaintiff by the defendant, for the first time, on October 28, 2005.

  SO ORDERED.

20051208

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