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Gerald Oscar, Individually and On Behalf of All Others Similarly Situated v. Bmw of North America

January 25, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Plaintiff Gerald Oscar ("Oscar") moves pursuant to S.D.N.Y. Local Civil Rule 6.3 for reconsideration of the Court's Opinion and Order, dated December 20, 2011 (the "December 20 Opinion"), denying his motion for leave to amend the complaint. See Dkt. 85. For the following reasons, Oscar's motion for reconsideration is denied.

A.Applicable Legal Standard

The standard governing motions for reconsideration under S.D.N.Y. Local Civil Rule 6.3 "is strict, and 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). Such a motion is "neither an occasion for repeating old arguments previously rejected nor an opportunity for making new arguments that could have previously been made." Associated Press v. U.S. Dep't of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005). Accordingly, "[c]courts have repeatedly warned parties that motions for reconsideration should not be made reflexively in order to reargue those issues already considered when a party does not like the way the original motion was resolved." Families for Freedom v. U.S. Customs & Border Prot., No. 10-cv-2705, 2011 U.S. Dist. LEXIS 113143, at *7 (S.D.N.Y. Sept. 30, 2011) (citing Makas v. Orlando, No. 06-cv-14305, 2008 U.S. Dist. LEXIS 40541, at *1 (S.D.N.Y. May 19, 2008)) (internal quotation marks and additional citation omitted). Oscar's motion constitutes an attempt to relitigate issues resolved by both this Court in the December 20 Opinion and Judge Holwell in his June 2011 opinion denying class certification, and does not meet the demanding standard of S.D.N.Y. Local Civil Rule 6.3.


In support of his motion for reconsideration of the December 20 Opinion, Oscar makes three principal arguments: (1) that the Court misapprehended certain portions of his argument in support of his motion to amend; (2) that he cannot be faulted for failing to amend his complaint earlier because he reasonably believed that he would be able to demonstrate numerosity on the New York sub-class of MINI purchasers defined in his original complaint; and (3) that BMW NA would not be unduly prejudiced by the proposed amendment because Oscar's newly-styled claims and damage theory may be proven by evidence already produced, and hence there is no need for new discovery.*fn1 The Court addresses each argument in turn.

1.The Court's Alleged Misapprehension of Oscar's Argument

Oscar first argues that the Court misapprehends his theory of the case and therefore his ability to make a showing of damages and predominance under Fed. R. Civ. P. 23(b)(3). This misunderstanding, he submits, is primarily evinced by footnote 3 of the Court's December 20 Opinion. That footnote reads:

As an aside, the Court is puzzled as to why, if the PAC asserts only a purchase-price injury, Oscar has continued to limit his class definition to purchasers of MINIs who subsequently suffered flat tires. That additional qualification only makes the class smaller and its members harder to identify, and appears utterly unrelated to the theories of liability and damages that Oscar claims he would pursue in the PAC.

Oscar v. BMW of N. Am., No. 09-cv-11, 2011 U.S. Dist. LEXIS 146395, at *19 n.3 (S.D.N.Y. Dec. 20, 2011) ("Oscar II"). Oscar claims that he has not asserted only a purchase price injury, and that the requirement for class membership that a plaintiff have suffered a flat tire "is necessary to state the injury that the class as a whole suffered." Oscar Br. 5 (Dkt. 87). This is because, as Oscar puts it, the damages suffered by the class flow from the unexpectedly high cost of repairing or replacing a run-flat tire. But the narrowing of Oscar's theory of injury to purchase-price injury was necessitated by Judge Holwell's ruling on class certification. Judge Holwell held that assessing injury and damages based on the circumstances of each class member's flat tire repairs implicated individualized questions of fact and that such a putative class therefore failed to satisfy the predominance requirement of Rule 23(b)(3). See Oscar v. BMW of N. Am., 274 F.R.D. 498, 513 (S.D.N.Y. 2011) ("Oscar I").

As noted in the December 20 Opinion, Judge Holwell left open the possibility of class certification based on the narrow theory that MINI owners might have negotiated differently and paid less for their cars had they been fully informed of the possible downsides of run-flat tires, i.e., a higher probability of flat tires and attendant costs of repair and replacement. Id. That is a purchase price injury. Oscar's theory, in this motion for reconsideration, now appears to be that MINI purchasers who later experienced a flat tire perforce would have paid less for their vehicles had they known what lay in store. That class definition, however, fails the predominance requirement, as Judge Holwell aptly explained: It necessarily would require an individualized inquiry as to the particular episode of tire damage. That is why this Court construed Oscar's less-than-pellucid submission in support of his motion to amend to now assert purely a purchase price injury-it was the only viable route to class certification left open by Judge Holwell in his opinion denying certification. To the extent Oscar urges this Court to reconsider not only the December 20 Opinion, but also Judge Holwell's analysis as to why a class definition that required a showing of a flat tire injury inevitably would fail the predominance requirement, that invitation is declined.

In any event, as Oscar's brief acknowledges, this Court did not base its denial of the proposed amendment on a finding of futility. See Oscar II, 2011 U.S. Dist. LEXIS 146395, at *17. Thus, even if Oscar's theory of injury had been misconstrued, correcting it would not "reasonably be expected to alter the conclusion reached by the court," and cannot be the basis for granting reconsideration. Shrader, 70 F.3d at 257.


Oscar next renews his argument that he "reasonably believed he had enough information . . . to satisfy the numerosity requirements for both the nationwide and New York classes," and therefore that he cannot be faulted for waiting to amend his complaint until his numerosity claim was rejected by Judge Holwell. Oscar Br. 9 (Dkt. 87). That argument-rejected in the December 20 Opinion-is meritless. Judge Holwell's numerosity analysis with regard to Oscar's New York sub-class was generous to Oscar, yet Judge Holwell still determined that Oscar had failed to satisfy the numerosity requirement. See Oscar I, 274 F.R.D. at 505--06. Oscar's ...

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