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Meenu Gaind, S.A v. Angel Garcia Cordero and Anta Inversions Y Asesoramiento

December 16, 2011

MEENU GAIND, S.A.,
PLAINTIFF,
v.
ANGEL GARCIA CORDERO AND ANTA INVERSIONS Y ASESORAMIENTO,
DEFENDANTS.



OPINION

The court granted defendants' motion for summary judgment on August 25, 2011. See Gaind v Cordero, 2011 U.S. Dist. LEXIS 95308, No. 04 Civ. 9407, at *2-5 (S.D.N.Y. Aug. 25, 2011). Plaintiff now moves for reconsideration of that decision pursuant to Local Rule 6.3.

Plaintiff's motion is denied.

Discussion

1) Standard of Review

A motion for reconsideration under Local Rule 6.3 "may be granted to correct clear error, prevent manifest injustice or review the court's decision in light of the availability of new evidence." Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003). Such motions should 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). These motions "must be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court," Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 391-92 (S.D.N.Y. 2000), and a losing party may not use a motion for reconsideration "to advance new theories that the movant failed to advance in connection with the underlying motion[.]" Sollecito, 253 F. Supp. 2d at 715. Ultimately, the decision whether to grant a motion for reconsideration rests within the court's discretion. See McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).

2) Plaintiff's Claims

The court assumes the parties' familiarity with the facts in this case, an account of which can be found in this court's opinion granting defendants' motion for summary judgment.

A) New Evidence

Plaintiff offers four new exhibits, which she labels exhibits A-D, that purport to support her contention as to the existence of the 1994 contract. The parties dispute whether a motion for reconsideration may refer to new evidence or contain exhibits at all. This dispute, however, is largely academic given the patent inadmissibility and irrelevance of the new evidence.

Exhibit A contains a clutch of documents demonstrating that non-party witness Karl Kripke neglected to sign his deposition. However, Kripke's signature was not needed. Rather, "a deponent is required to sign the deposition transcript only if review of the transcript is requested before the deposition is completed and changes are made by the deponent." See EEOC v Nat'l Clearing Contractors, Inc., No. 90 Civ. 6398, 1996 U.S. Dist. LEXIS 7026, at *4 (S.D.N.Y. May 23, 1996). Plaintiff has not argued that Kripke did so. Exhibit B consists of the affidavit of Bijon Mehta. Mehta relays statements from Citibank's general counsel concerning statements made by notary Carol Bumgarner, who allegedly told the general counsel that she did, in fact, notarize the 1994 contract. However, these nested statements clearly constitute inadmissible compound hearsay, which this court cannot credit when deciding or reconsidering summary judgment. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008).

Exhibit C consists of the affidavit of Maria Travis. While this exhibit contains many interesting anecdotes from plaintiff's career, it mentions plaintiff's venture with Pierot, Sr. only once and in passing. Travis' simple assertion that "Ms. Gaind visited me in Hong Kong in the very early 1990s after she had started her trading venture with Robert Pierot" does nothing to establish the validity of the contract upon which plaintiff's case rests.

Exhibit D contains an email and attachment from Joseph A. Field, in which he reminisces about an encounter in February 1999 where plaintiff "brought me a notarized agreement between Mr. Pierot and [herself.]" Id. But Field's observation does not attest to the nature or contents of that agreement. The observed agreement could well have been another agreement entirely or the very photocopy produced for this litigation.

B) The Oral Contract Theory

Plaintiff now proposes that she and Pierot, Sr. formed an oral contract in 1994 featuring the same terms and conditions as the written 1994 contract. She claims that such a contract would be the inevitable result of the ...


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