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Ferring B v. Ferring International Center S.A. v. Allergan, Inc.

United States District Court, Second Circuit

August 5, 2013

FERRING B V. FERRING INTERNATIONAL CENTER S.A., AND FERRING PHARMACEUTICALS INC., Plaintiffs,
v.
ALLERGAN, INC., ALLERGAN USA, INC., ALLERGAN SALES, LLC, SERENITY PHARMACEUTICALS CORPORATION, SERENITY PHARMACEUTICALS, LLC, REPRISE BIOPHARMACEUTICS, LLC, SEYMOUR H. FEIN, AND RONALD
v.
NARDI, Defendants.

Mara E. Zazzali-Hogan, Esq., William P. Deni, Jr., Esq. GIBBONS P.C., Newark, NJ,

James B. Monroe, Esq., Paul W. Browning, Esq., Adriana L. Burgy, Esq., FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP, Washington, D.C., Attorneys for Plaintiffs.

Joseph Evall, Esq., GIBSON, DUNN & CRUTCHER LLP, New York, NY,

Jeffrey T. Thomas, Esq., Jeffrey H. Reeves, Esq., GIBSON, DUNN & CRUTCHER LLP, Irvine, CA,

James Scottile, Esq., Steven M. Cohen, Esq., Noah Solowiejczyk, Esq., ZUCKERMAN SPAEDER LLP, New York, NY, Attorneys for Defendants.

OPINION

ROBERT W. SWEET, District Judge.

Ferring B.V., Ferring International Center S.A., and Ferring Pharmaceuticals Inc. (collectively, "Ferring" or the "Plaintiffs") have moved pursuant to Local Rule 6.3 for reconsideration of the Court's March 19, 2013 opinion (the "March 19 Opinion") dismissing Counts 4-17 of its complaint (the "Complaint"). In the alternative, Plaintiffs seek leave to amend its Complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure.

Defendants Allergan, Inc.; Allergan USA, Inc.; and Allergan Sales, LLC (collectively, "Allergan"); Serenity Pharmaceuticals Corporation, Serenity Pharmaceuticals, LLC (collectively, "Serenity"), Reprise Biopharmaceutics, LLC ("Reprise"), Dr. Seymour H. Fein ("Fein") and Dr. Ronald V. Nardi ("Nardi") (collectively, the "Defendants") oppose Plaintiff's motion.

Based on the conclusions set forth below, the Plaintiffs' motion is denied.

I. The Motion for Reconsideration is Denied

Standard of Review

The standards governing motions under Local Rule 6.3 along with Fed.R.Civ.P. 59 are the same, and a court may grant reconsideration where the party moving for reconsideration demonstrates an "intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Henderson v. Metro. Bank & Trust Co. , 502 F.Supp.2d 372, 375-76 (S.D.N.Y. 2007) (quotation marks and citations omitted); Parrish v. Sollecito , 253 F.Supp.2d 713, 715 (S.D.N.Y. 2003) ("Reconsideration may be granted to correct clear error, prevent manifest injustice or review the court's decision in light of the availability of new evidence.") (citing Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd. , 956 F.2d 1245, 1255 (2d Cir. 1992)).

As this Court recently confirmed, reconsideration of a court's prior order under Local Rule 6.3 or Rule 59 "is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Sikhs for Justice v. Nath , 893 F.Supp.2d 598, 605 (S.D.N.Y. 2012) (citations omitted). Accordingly, the standard of review applicable to such a motion is "strict." Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir. 1995).

The burden is on the movant to demonstrate that the Court overlooked controlling decisions or material facts that were before it on the original motion, and that might "materially have influenced its earlier decision.'" Anglo Am. Ins. Group v. CalFed, Inc. , 940 F.Supp. 554, 557 (S.D.N.Y. 1996) (quoting Morser v. AT & T Information Sys. , 715 F.Supp. 516, 517 (S.D.N.Y. 1989)). A party seeking reconsideration may neither repeat "arguments already briefed, considered and decided, " nor "advance new facts, issues or ...


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