The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs Kevin Trudeau, Alliance Publishing Group, Inc. and Shop America (USA) L.L.C. (collectively, "Trudeau") have moved for reconsideration of the court's November 30, 2007 Memorandum-Decision and Order. The motion for reconsideration is granted; however, for the reasons that follow, the court affirms the grant of summary judgment in favor of the defendants.
II. Facts and Procedural History
The relevant facts are recited in the court's November 30, 2007 Memorandum-Decision and Order, (see Dkt. No. 145),*fn1 and will not be repeated in detail here. In summary, Trudeau, an author and consumer advocate, brought this action seeking, inter alia, a permanent injunction prohibiting the defendants, employees of the New York State Consumer Protection Board (the "CPB"), from contacting cable and broadcast media carriers and requesting that they refuse to carry advertisements for Trudeau's book, Natural Cures "They" Don't Want You to Know About (the "Natural Cures book"). The action was spurred by Trudeau's concern that the CPB, having received consumer complaints, might take steps to persuade or coerce media outlets from airing his infomercials. Trudeau's fears were ultimately realized when, subsequent to the filing of the instant suit, but prior to entry of any provisional relief, CPB officials sent a letter (the "CPB Letter") to approximately 102 cable and broadcast stations stating the CPB's belief that the infomercials for the Natural Cures book were misleading. The court subsequently issued a temporary restraining order and preliminary injunction prohibiting the CPB from having further contact with cable or broadcast stations regarding the Natural Cures book.
In its prior decision, the court granted the defendants' motion for summary judgment on the grounds that Trudeau had conceded that the challenged conduct by CPB officials did not result from a CPB "policy or custom," as required for an official capacity suit for injunctive relief. (See Memorandum-Decision and Order, pp. 9-11; Dkt. No. 145 (citing Kentucky v. Graham, 473 U.S. 159 (1985) and Reynolds v. Giuliani, 506 F.3d 183 (2d Cir. 2007)).) Trudeau moves for reconsideration of the court's ruling, arguing that although he conceded that the challenged conduct did not result from a CPB "custom or practice," he nowhere conceded that the conduct did not result from a CPB "custom or policy."
The standard for granting a motion for reconsideration is strict. Motions for 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). Courts in the Northern District of New York have recognized 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 a clear error of law or prevent manifest injustice. See, e.g., C-TC 9th Ave. P'Ship v. Norton Co. (In re C-TC 9th Ave. P'Ship), 182 B.R. 1, 3 (N.D.N.Y. 1995) (citations omitted).
Of significance here, "[a] motion for reconsideration is not an opportunity for a losing party to advance new arguments to supplant those that failed in the prior briefing of the issue." Fredericks v. Chemipal, Ltd., No. 06-cv-966, 2007 WL 1975441, at *1 (S.D.N.Y. July 6, 2007). Such a motion does not present an opportunity for taking a "second bite at the apple." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). Thus, "[w]hen faced with a motion for summary judgment, a responding party is not entitled to try out one theory of defense and, if that theory proves unavailing, to then seek reconsideration by offering a different theory." Bell v. Eastman Kodak Co., No. 95-cv-4687, 1998 WL 801842, at *3 (N.D. Ill. Nov. 12, 1998); see In re Bird, 222 B.R. 229, 235 (Bankr. S.D.N.Y. 1998) ("A motion for reconsideration is not a forum for new theories or for plugging the gaps of a lost motion with additional matters.") (quotations and citation omitted).
A. Motion for Reconsideration
Based on the standard and principles recited above, the court would be justified in denying Trudeau's motion for reconsideration. Regardless of their validity, the arguments raised by Trudeau in his motion for reconsideration were never mentioned in the briefing on the underlying motion for summary judgment. In their brief in support of summary judgment, the defendants argued as follows:
Moreover, plaintiffs cannot demonstrate that the sending of one letter on August 30, 2005 was motivated by a state policy or practice. In fact, the CPB did not, and does not, have any policy in place with respect to direct contact with cable and broadcast stations regarding advertisements. . . . Even if plaintiffs could establish that their rights were violated, they cannot establish that a state policy or custom was the "moving force" behind the violation and thus, are barred from obtaining a permanent injunction against defendants. (Dkt. No. 130, p. 6.) In his response brief, Trudeau's argument on the "policy or custom" issue was limited to the following passage:
Second, the CPB contends that the constitutional violation at issue must be the result of a state policy or custom that was the "moving force behind ...