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Forbes v. NAMS International

September 20, 2007

DAVID. G. FORBES, ET AL., PLAINTIFFS,
v.
NAMS INTERNATIONAL, INC., ET AL., DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiffs move for reconsideration of this Court's August 17, 2007 Decision and Order [dkt. # 38] that affirmed the portion of Magistrate Judge's Peebles's June 21, 2007 Order that granted Defendants' motion to disqualify Plaintiffs' counsel, Ronald Benjamin, Esq. [dkt. # 27]. In the alternative, Plaintiffs ask the Court to certify the disqualification decision for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and allow disqualified counsel an opportunity to discuss with Plaintiffs a plan for going "forward with retaining new counsel." See Pltf. Mem. L. p. 3.

II. STANDARD FOR REVIEW

"The standard for granting [a motion for reconsideration] 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. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Polanco v. United States, 2000 WL 1346726, at *1 (S.D.N.Y. September 19, 2000); Califano v. United States, 1998 WL 846779, at *1 (E.D.N.Y. September 4, 1998). "The high burden imposed on the moving party has been established in order to dissuade repetitive arguments on issues that have already been considered by the court and discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court [and] to ensure finality and prevent the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters." Nowacki v. Closson, 2001 WL 175239, *1 (N.D.N.Y. Jan. 24, 2001) (Munson, J.) (internal citations and quotations omitted). Reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple.' " Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998); see also Polanco, 2000 WL 1346726 at *1 (quoting Schrader, 70 F.2d at 256) (Reargument is not a vehicle to "advance new facts, issues or arguments not previously presented to the court."). The Northern District of New York "recognizes only three possible grounds upon which a motion for reconsideration may be granted:

(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct clear error of law to prevent manifest injustice." Nowacki, 2001 WL 175239, at *1 (quoting In re C-TC 9th Avenue Partnership, 183 B.R. 1, 3 (N.D.N.Y. 1995)).

U.S. v. Li, 2006 WL 2375475, at *1 (N.D.N.Y. 2006).

III. DISCUSSION

a. Reconsideration

In support of their motion for reconsideration, Plaintiffs argue the Court "has created an irrebuttable presumption of disqualification, which, without requiring a showing of [a] 'substantial relationship,' is contrary to the law of this Circuit." Pltf. Mem. L. p. 3. In this regard, Plaintiffs argue that "Judge Peebles' order appears to confirm that the NAMS defendants did not show any relationship, let alone a substantial relationship," between the instant case and the prior litigation in which Attorney Benjamin represented NAMS. Id. p. 4. Plaintiffs further argue that "Judge Peebles' order focuses on the assumption of relevant access as dispositive standing alone" on the disqualification determination. Id.

Plaintiffs merely attempt to take the "second bite at the apple" by reasserting their previous arguments. Sequa Corp., 156 F.3d at 144. On this ground, the motion should be denied.

Further, the argument borders on the frivolous. Magistrate Judge Peebles's Order did not ignore the requirement of a substantial relationship, and did not determine that access to confidential material "standing alone" was dispositive of the disqualification motion. Indeed, Magistrate Judge Peebles addressed the inter-relationship between the subject matter of the instant action and the previous action in which Attorney Benjamin represented NAMS ("the Spectra.Net litigation"), see 6/21/07 Order, pp. 4-7, cited the proper standard within this Circuit for disqualifying a party's choice of counsel, id. pp. 8-11,*fn1 and concluded:

In this case, careful scrutiny of the available information regarding Attorney Benjamin's prior representation of NAMS and the issues in the current case suggest, at least facially, the appearance of an impropriety. Without more, however, the mere appearance of impropriety is an insufficient basis to mandate disqualification. [Hickman v. Burlington Bio-Medical Corp., 371 F. Supp. 2d 225, 229 (E.D.N.Y. 2005)].

Proceeding to application of the specifics of the governing, three-part test, at the outset I find -- and no one questions this fact -- that NAMS was previously represented by Attorney Benjamin. The true battleground lies in consideration of the second and third prongs of the ...


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