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Palm Beach Strategic Income, Lp v. Stanley P. Salzman

June 23, 2011

PALM BEACH STRATEGIC INCOME, LP, PLAINTIFF,
v.
STANLEY P. SALZMAN, P.C., STANLEY P. SALZMAN, AND MARILYN SALZMAN,
DEFENDANTS.



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

MEMORANDUM AND DECISION

This case has a convoluted history. In brief, Plaintiff Palm Beach Strategic Income L.P. ("PBSI") pled five separate complaints across two actions. In none of those complaints did PBSI sufficiently plead a claim. So, on May 2, 2011, the Court dismissed the final iteration of PBSI's pleadings (the Amended Complaint in this action) with prejudice. See 2011 WL 1655575, 2011 U.S. Dist. LEXIS 46867. PBSI now moves for reconsideration and/or relief from judgment. For the following reasons, that motion is DENIED. PBSI's remedy, if any, lies with the Second Circuit.

BACKGROUND

The May 2 Order recounted this dispute's procedural history in detail. See 2011 WL 1655575 at *1-4, 2011 U.S. Dist. LEXIS 46867 at *1-13. So the Court will not repeat it again.

DISCUSSION

I. Standard of Review

PBSI moves for reconsideration and/or relief from judgment.

Motions for reconsideration may be brought pursuant to FED. R. CIV. P. 59(e) and Local Civil 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). A motion for reconsideration will not succeed 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." In re BDC 556 LLP, 330 F.3d 111, 123 (2d Cir. 2003). Thus, 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, 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).

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). Accordingly, granting Rule 60(b) relief is "disfavored." Empresa Cubana Del Tabaco v. General Cigar Co. Inc., 385 Fed. Appx. 29, 31 (2d Cir. 2010).

II. PBSI's Motion for Reconsideration

PBSI's motion for reconsideration does not identify any "controlling decisions or data that the court overlooked."

In re BDC 556 LLP, 330 F.3d 111, 123 (2d Cir. 2003). Instead, PBSI largely presents new facts and information that it failed to plead in any of its five complaints, or in opposing Defendants' serial motions to dismiss. None of this material is newly discovered evidence. Instead, it consists entirely of facts that have been within PBSI's possession the whole time, but it never saw fit to bring to the Court's or Defendants' attention. PBSI then uses this new material to relitigate Defendants' motions to dismiss, and argue that the Court erred. This is not proper on a reconsideration motion. See generally Gross, 2002 WL 32096592 at *4.

III. Relief from Judgment

PBSI's motion is somewhat more cognizable as a Rule 60(b) motion for relief from judgment. As noted above, the Court can grant Rule 60(b) relief for mistakes, inadvertence, excusable neglect, newly discovered evidence, and fraud. Here, PBSI argues: (i) the Court erred when it concluded that the PBCM escrow agreement was the operative contract between the parties; (ii) the Court erred in supposedly raising several legal issues sua sponte, and then deciding them against PBSI; (iii) the Court erred when it found that PBSI did not sufficiently allege PBCM's role as its agent; and (iv) ...


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