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Hodge v. City of Long Beach

September 28, 2007

JAMES HODGE, PLAINTIFF,
v.
CITY OF LONG BEACH, EUGENE CAMMARATO, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, AND EDWARD EATON, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND LAWRENCE WALLACE, ALSO KNOWN AS LARRY WALLACE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

MEMORANDUM OF DECISION AND ORDER

I. PROCEDURAL SETTING

In this civil rights action, Defendants seek reconsideration of my previous Order [see DE 91] which was directed to circumstances surrounding the Rule 35 examination of Plaintiff. The issues were discussed at length at the August 22, 2006 proceeding from which the Order derived and familiarity with which is assumed here.

My August 22, 2006 Order set forth in the record that day five conditions on Plaintiff's Rule 35 examination as a result of the August 22, 2006 argument:

1. Plaintiff's Rule 35 examination would be conducted by an expert with no current or prior affiliation with the law firm of Jaspan, Schlesinger & Hoffman, LLP.

2. No third party would be permitted to be present at Plaintiff's Rule 35 examination. Rather, the only people permitted to be at the examination would be the Plaintiff and the expert. If a third party drives Plaintiff to the examination, that third party must remain outside the physical offices of the examining doctor.

3. No one is permitted to record the examination in any manner. To ensure compliance with this directive and to avoid any confusion on this issue, I directed Plaintiff's counsel to personally inform the client that tape recording is not permitted at the Rule 35 examination.

4. Any transportation costs required to bring Plaintiff to or from the examination site is to be borne by counsel for the Individual Defendants.

5. The expert's fees, including his time at deposition, is to be paid by counsel for the Individual Defendants. I also denied Plaintiff's motion seeking to have the Individual Defendants pay costs for the expert's deposition transcript.

On September 14, 2006, counsel for the individual Defendants filed a letter motion seeking reconsideration of that Order. See [DE 94]. Counsel for Defendant City of Long Beach also moved by letter motion for reconsideration. See [DE 89]. Both letter motions were denied on September 6, 2006 because they did not comply with Local Civil Rule 6.3, which requires motions for reconsideration to be made on notice of motion and accompanied by a memorandum of law. See Local Civil Rule 6.3. On September 14, 2006 Defendants filed a formal motion for reconsideration that properly complied with Local Civil Rule 6.3. Plaintiff has not submitted any opposition to this motion.*fn1 For the following reasons, Defendants' motion for reconsideration is granted in limited part with regard to the specific sanctions imposed, but is otherwise denied.

II. STANDARD OF REVIEW

Motions for reconsideration under Fed. R. Civ. P. 59(e) are governed by Local Civil Rule 6.3, which states that the motion must "set forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Local Civil Rule 6.3. A motion for reconsideration is within the sound discretion of the district court. See Metro. Opera Assoc. v. Local 100, No. 00-CV-3613, 2004 WL 1943099, at *1 (S.D.N.Y. Aug. 27, 2004); Bueno v. Gill, 237 F. Supp. 2d 447, 449 (S.D.N.Y. 2002). In the Second Circuit, "the standard for granting such a motion 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 Bell Sports, Inc. v. Sys. Software Assocs., Inc., 71 F. Supp. 2d 121, 126 (E.D.N.Y. 1999). This heightened burden imposed on the movant is "to dissuade repetitive arguments on issues that have already been considered fully by the Court." Ruiz v. Comm'r of the D.O.T. of the City of New York, 687 F. Supp. 888, 890 (S.D.N.Y. 1988), modified on other grounds, 934 F.2d 450 (2d Cir. 1991). The scope on a motion for reconsideration is, therefore, extremely narrow and has been described as an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Health Mgmt. Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000).

A decision to impose sanctions under 28 U.S.C. § 1927 or the court's inherent authority is reviewed for abuse of discretion. See Klein v. Wilson, Elser, Moskowitz, Edelman & Dicker (In re Highgate Equities, Ltd.), 279 F.3d 148, 151 (2d Cir. 2002); Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir. 2000) (citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 154 (2d Cir. 1997)). A court abuses its discretion if its conclusions are based on an erroneous determination of law or on clearly erroneous factual findings. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). Although a district court is better positioned to "marshal the pertinent facts and apply the fact-dependent legal standard that informs its determination as to whether sanctions are warranted," it always must ensure that sanctions are imposed with "restraint and discretion." Revson, 221 F.3d at 78 (citing Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir. 1999)).

III. DISCUSSION

Defendants offer several arguments in support of their motion for reconsideration. First, Defendants argue that because no adequate notice of sanctions was provided, as a matter of law, it was erroneous for the Court to impose them. Second, Defendants argue that even if a motion for sanctions was properly sub judice,the Court abused its discretion by imposing them.Because the Defendants do not point to controlling decisions or data that the Court overlooked, their motion for reconsideration must be denied. See Metro. Opera Assoc., No. 00-CV-3613, 2004 WL 1943099, at *2. Nonetheless, since the Second Circuit has cautioned that decisions concerning sanctions must be "made with restraint and ...


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