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Donald G. Drapkin v. Mafco Consolidated Group

November 17, 2011

DONALD G. DRAPKIN,
PLAINTIFF,
v.
MAFCO CONSOLIDATED GROUP, INC.,
DEFENDANT.
MACANDREWS & FORBES LLC, PLAINTIFF,
v.
DONALD G. DRAPKIN,
DEFENDANT.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:

MEMORANDUM OPINION & ORDER

Donald Drapkin has requested reconsideration of this Court's September 23, 2011 Memorandum Opinion & Order ("Order") (09 Civ. 1285, Dkt No. 74; 09 Civ. 4513 Dkt No. 80) granting in part and denying in part his motion for summary judgment. Familiarity with the Order is presumed. For the reasons set forth below, Drapkin's motion for reconsideration is DENIED.

BACKGROUND

These two breach of contract actions are mirror images of each other: Drapkin alleges that Mafco Consolidated Group, Inc. breached a separation agreement by failing to pay him $2.5 million, while MacAndrews & Forbes LLC -- successor to MacAndrews & Forbes, Inc., and parent of Mafco Consolidated Group, Inc. (together, the "Company") -- claims that Drapkin violated the separation agreement by breaching provisions concerning return of Company files and documents, reimbursement of medical expenses, non-disparagement, and attempts to induce or influence employees to leave the Company.

The Court's decision on summary judgment permits two alleged breaches to proceed to trial: (1) Drapkin's failure to return company documents stored on his assistant's laptop, in alleged violation of Section 6(h) of the separation agreement, and (2) Drapkin's alleged attempt to influence Dr. Eric Rose to leave his position at M&F, in violation of Section 6(c) of the separation agreement. In denying summary judgment, the Court held that if any breach of these provisions occurred, the materiality of any such breach presented a question of fact for a jury. (Order at 21-25) Drapkin now seeks reconsideration of these determinations, arguing that materiality may be decided as a matter of law.

DISCUSSION

I.LEGAL STANDARD

A motion for reconsideration is "an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources," In re Initial Public Offering Sec. Litig., 399 F.Supp.2d 298, 300 (S.D.N.Y. 2005) (internal citation and quotation omitted), aff'd sub nom Tenney v. Credit Suisse First Boston Corp., Nos. 05 Civ. 3430, 05 Civ. 4759, & 05 Civ. 4760, 2006 WL 1423785, at *1 (2d Cir. 2006), and may be granted only where a court has overlooked "controlling decisions or factual matters that were put before it on the underlying motion" and which, if examined, might reasonably have led to a different result. Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000). "Reconsideration should not be granted where the moving party seeks solely to relitigate an issue already decided; in addition, the moving party may not 'advance new facts, issues or arguments not previously presented to the Court.'" Christoforou v. Cadman Plaza N., Inc., No. 04 Civ. 08403 (KMW), 2009 WL 723003, at *7 (S.D.N.Y. March 19, 2009) (quoting Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999)).

Motions for reconsideration are properly granted only if there is a showing of: (1) an intervening change in controlling law; (2) the availability of new evidence or (3) a need to correct a clear error or prevent manifest injustice. Bergerson v. New York State Office of Mental Health, Central New York Psychiatric, 652 F.3d 277 (2d Cir. 2011) (citing Virgin Atlantic Airways, Ltd. v. National Mediation Bd, 956 F.2d 1245, 1255 (2d Cir. 1992); Almonte v. City of Long Beach, 2005 WL 1971014 *1 (E.D.N.Y.2005)).

II.ANALYSIS

Drapkin claims that the Court "overlooked controlling case law that mandates a finding here that the remaining alleged 'breaches' of the Separation Agreement, under the circumstances presented, are immaterial as a matter of law." (Drapkin Reconsideration Br. at 1) However, Drapkin has not cited any "overlooked controlling case law." Instead, he rehashes arguments previously rejected and presents several new arguments that could have been, but were not, presented at summary judgment. A motion for reconsideration is not the proper vehicle for any of these arguments. Accordingly, the motion will be denied.

A.Drapkin May Not Relitigate Issues Which Have Already Been Decided

In his brief in support of his motion for summary judgment, Drapkin argued that any retention of Company documents did not go to the root of the separation agreement and that the Company could not show any harm resulting from the retention of these documents. (Drapkin Br. at 22-23) The Court addressed these arguments in its Order and found that, on the present record, it could not determine as a matter of law that any breach of Section 6(h)was immaterial. (Order at 21-22) ("Drapkin's argument that any breach of Section 6(h) is not material likewise cannot be resolved, at this stage of the litigation, as a matter of law.") Drapkin cannot re-litigate that determination on a motion for reconsideration.

Drapkin likewise may not use a motion for reconsideration to strengthen arguments he made in his original briefing. Drapkin now cites to case law and the Restatement (Second) of Contracts for his contention that the Court must consider the "disparity in the consequences of an alleged breach of contract in determining whether a breach is material." (Drapkin Reconsideration Br. at 13-14) This is an expansion of the disparity argument which he made on summary judgment. (Drapkin Br. at 22-23) ("In essence, the Company contends that the inadvertent retention of 79 largely inconsequential documents excuses the Company's obligation to pay Drapkin $18 million and justifies rescission of the Separation Agreement. It does not.") A motion for reconsideration "is not a vehicle to ...


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