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Rates v. Mediatrix Telecom

March 3, 2011


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


In its January 5, 2010 Order (the "Sanctions Order"), the Court adopted in their entirety Magistrate Judge A. Kathleen Tomlinson's (1) Report and Recommendation, dated March 31, 2008 ("R&R") (Docket Entry 155), and (2) Supplemental Report and Recommendation dated September 2, 2009 ("Supplemental R&R") (Docket Entry 165) (collectively, the "R&Rs"). The R&Rs recommend that the Court sanction, pursuant to Rule 37, Plaintiff Rates Technology, Inc. and Plaintiff's counsel, James B. Hicks, Esq. ("Hicks"), and dismiss Plaintiff's Amended Complaint in its entirety. Mistakenly, because the underlying motion contained sensitive information and was sealed, the Sanctions Order was also filed under seal. Defendants Mediatrix Telecom, Inc. and Media5 Corporation's (collectively, "Mediatrix") motion to unseal the Sanctions Order is GRANTED based on Defendants' representation that the Order contains no confidential information. (See Docket Entry 179 at 1.)

Also pending before the Court are (1) Hicks' motion for reconsideration; (2) Defendants' accounting of the legal fees and expenses it incurred in connection with this litigation (the "Fee Application"); (3) Plaintiff's motion for leave to file a sur-reply concerning the Fee Application; and (4) Hicks' motion to strike Defendants' reply brief regarding the Fee Application.

For the reasons that follow, Hicks' motion for reconsideration is granted only insofar as the Court acknowledges an incorrect reference to Federal Rule of Civil Procedure 11 in the Sanctions Order. It is DENIED in all other respects. Defendants are awarded $91,587.68 in reasonable legal fees and expenses. Plaintiff's motion to file a sur-reply is DENIED AS MOOT, and Hicks' motion to strike Defendants' reply concerning the Fee Application is DENIED.


The Court assumes familiarity with the facts and posture of this litigation, which are discussed at length in the R&Rs and the Orders cited therein.

I. Plaintiff's Motion for Reconsideration

Hicks' motion to reconsider the January 2010 Order is granted insofar as it asks the Court to correct an erroneous reference to Federal Rule of Civil Procedure 11. As Hicks correctly points out, the Order awards fees pursuant to Federal Rule 37. Thus, the language on page five of the January 2010 Order that reads "Plaintiff's case should be dismissed as a Rule 11 sanction" was meant to refer instead to Rule 37. Hicks' reconsideration motion is DENIED in all other respects.

A. Legal Standard

Motions for reconsideration may be brought pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure and Local Rule 6.3. See Wilson v. Pessah, No. 05-CV-3143, 2007 U.S. Dist. LEXIS 17820, at *4 (E.D.N.Y. March 14, 2007). Rule 59(e) permits a moving party to file a motion for reconsideration when it believes the Court overlooked important "matters or controlling decisions" that would have influenced the prior decision. Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999). Reconsideration is not a proper tool to repackage and relitigate arguments and issues already considered by the Court in deciding the original motion. See United States v. Gross, No. 98-CR-0159, 2002 WL 32096592, at *4 (E.D.N.Y. Dec. 5, 2002) ("A party may not use a motion to reconsider as an opportunity to reargue the same points raised previously."). Nor is it proper to raise new arguments and issues. See Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997). Reconsideration may only be granted when the Court did not evaluate decisions or data that might reasonably be expected to alter the conclusion reached by the Court. Wechsler v. Hunt Health Sys., 186 F. Supp. 2d 402, 410 (S.D.N.Y. 2002).

Rule 60(b) of the Federal Rules of Civil Procedure provides relief from a judgment for, inter alia, mistakes, inadvertence, excusable neglect, newly discovered evidence, and fraud. Fed. R. Civ. P. 60(b). Rule 60(b) provides "extraordinary judicial relief" that may "only be granted upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).

B. The Remainder of Hicks' Reconsideration

Motion is Denied Hicks asserts three principal reasons why the Sanctions Order should be reconsidered: (1) Plaintiff and Hicks could not provide an interrogatory answer because it did not have the information sought; (2) there is no evidence that Hicks was personally responsible for the discovery violation; and (3) the Court improperly denied Hicks the opportunity for oral argument on its decision to adopt the R&Rs. Plaintiffs' arguments fail under either Rule 59(e) or 60(b).

Hicks' first argument is simply an attempt to re-litigate an issue that the Court considered at length in the Sanctions Order. See Sanctions Order at 13-15. Similarly, the Court also considered and rejected Hicks' second argument when it found that Plaintiff and Hicks were both responsible for the sanctionable conduct. See id. at 17. In his current motion, Hicks offers nothing to change the Court's initial conclusion. Further, the Court notes that Hicks had ample notice that Judge Tomlinson was contemplating sanctions (see Sanctions Order at 16), and he could have advised his client to comply with Judge Tomlinson's discovery orders, asked to withdraw from the representation, or counseled his client to drop the underlying infringement lawsuit. In light of Hicks' stance that his client was unable to articulate an element-by-element analysis of the claimed infringement, perhaps this would have been the most appropriate course. Hicks' third argument is unpersuasive because by denying a litigant who filed written briefs the ...

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