United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER ON RECONSIDERATION
NELSON S. ROMN, District Judge.
Plaintiff Scarsdale Central Service Inc. ("Plaintiff") moves for reconsideration and/or reargument of the Court's Memorandum and Order, filed March 7, 2014, and entered on the docket March 10, 2014 ("the Order, " see Doc. 40), granting Defendants Gulf Oil Limited Partnership ("Gulf Oil") and Cumberland Farms, Inc.'s ("Cumberland") (collectively "Defendants") motion for a preliminary injunction. Plaintiff has since vacated the gasoline station it operated at 880 Central Park Avenue in Scarsdale, New York ("Premises"). In the Order, the Court found that Defendants were likely to succeed on the merits on their counterclaims alleging trademark infringement under the Lanham Act, 15 U.S.C. § 1114(1), and seeking a declaration that Defendants' actions satisfied the nonrenewal requirements of the Petroleum Marketing Practices Act ("PMPA"), 15 U.S.C. §§ 2802, 2804. Knowledge of the facts, procedural history, and terms of the preliminary injunction granted by the Order is presumed.
In its motion for reconsideration and/or reargument, Plaintiff asserts the Court overlooked factual matters and controlling case law which might reasonably be expected to have led to a different ruling had they been considered. Plaintiff also asserts that the Court disregarded the bond requirement of Federal Rule of Civil Procedure 65(c), and that Plaintiff is entitled to a stay of the preliminary injunction pending appeal. In opposition, Defendants assert that the instant motion is untimely, that Plaintiff is barred from making new arguments it could have raised when the underlying motion was initially briefed and argued, that Plaintiff's substantive arguments are meritless, that no bond was required in the instant case, and that Plaintiff is not entitled to a stay pending appeal because it has not filed a notice of appeal. For the following reasons, Plaintiff's motion for reconsideration is granted in part and denied in part.
I. STANDARD OF REVIEW
Motions for reconsideration are governed by Local Civil Rule 6.3, which requires that the moving party serve "a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court has overlooked." Local Civ. R. 6.3; accord Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012); In re Optimal U.S. Litig., 886 F.Supp.2d 298, 311-12 (S.D.N.Y. 2008). Motions for reconsideration are "addressed to the sound discretion of the district court[.]" Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990); cf. Mikol v. Barnhart, 554 F.Supp.2d 498, 500-01 (S.D.N.Y. 2008) ("Whether to grant or deny a motion for reconsideration or reargument is in the sound discretion of a district court judge.") (internal quotation marks and citation omitted). The standard for granting a motion for reconsideration is strict. Targum v. Citrin Cooperman & Company, LLP, No. 12 Civ. 6909 (SAS), 2013 WL 6188339, at *1 (S.D.N.Y. Nov. 25, 2013). "[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked, '" In re Optimal U.S. Litig., 886 F.Supp.2d at 311-12 (quoting Patterson v. United States, No. 04 Civ. 3170, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006)); accord Analytical Surveys, 684 F.3d at 52 (2d Cir.2012) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)), "and that might reasonably be expected to alter the conclusion reached by the court, '" In re Optimal U.S. Litig., 886 F.Supp.2d at 312 (quoting Rafter v. Liddle, 288 F.Appx. 768, 769 (2d Cir. 2008)); accord Shrader, 70 F.3d at 257. Alternatively, a court may grant a motion for reconsideration to "correct a clear error or prevent manifest injustice.'" In re Optimal U.S. Litig., 886 F.Supp.2d at 312 (quoting RST (2005) Inc. v. Research in Motion Ltd., 597 F.Supp.2d 362, 365 (S.D.N.Y. 2005)).
"Controlling decisions include decisions from [the United States Supreme Court and] the United States Court of Appeals for the Second Circuit; they do not include decisions from other circuits or district courts, even courts in the Southern District of New York." Heffernan v. Straub, 655 F.Supp.2d 378, 380-81 (S.D.N.Y. 2009) (citing Ades v. Deloitte & Touche, 843 F.Supp. 888, 892 (S.D.N.Y. 1994) (holding that district court decisions and decisions from other circuits are not controlling under predecessor to Local Civil Rule 6.3)); accord Langsam v. Vallarta Gardens, No. 08 Civ. 2222 (LAP), 2009 WL 2252612, at *2 (S.D.N.Y. July 28, 2009); Alzamora v. Vill. of Chester, 534 F.Supp.2d 436, 439 (S.D.N.Y. 2008); see also Women's Integrated Network, Inc. v. U.S. Specialty Ins. Co., No. 08-CV-10518 (LAP), 2011 WL 1347001, at *1 (S.D.N.Y. Apr. 4, 2011); Cobalt Multifamily Investors I, LLC v. Shapiro, No. 06 Civ. 6468 (KMW) (MHD), 2009 WL 4408207, at *2 (S.D.N.Y. Dec. 1, 2009); Analytical Surveys, Inc. v. Tonga Partners, L.P ., No. 06 Civ. 2692 (KMW) (RLE), 2009 WL 1514310, at *3 n.9 (S.D.N.Y. May 29, 2009); In re Evergreen Mut. Funds Fee Litig., 240 F.R.D. 115, 118 (S.D.N.Y. 2007).
"A motion for reconsideration is not intended as a vehicle for a party dissatisfied with the Court's ruling to advance new theories that the movant failed to advance in connection with the underlying motion.'" WestLB AG v. BAC Fla. Bank, 912 F.Supp.2d 86, 95 (S.D.N.Y. 2012) (quoting Parrish v. Sollecito, 253 F.Supp.2d 713, 715 (S.D.N.Y. 2003)); see also Analytical Surveys, 684 F.3d at 52 (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)) (holding that motion for reconsideration "is not a vehicle for... presenting the case under new theories... or otherwise taking a second bite at the apple'"); Koehler v. Bank of Bermuda, Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1 (S.D.N.Y. May 10, 2005) (citing Kunica v. St. Jean Fin., Inc., 63 F.Supp.2d 342, 346 (S.D.N.Y. 1999)) (stating that on motion for reconsideration, movant "cannot assert new arguments or claims which were not before the court on the original motion"); SEC v. Ashbury Capital Partners, LP, No. 00 CV 7898 (RCC), 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001) (stating that "parties may not present new facts or theories" on motion for reconsideration). Reconsideration of a court's previous order is "an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Initial Pub. 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. May 19, 2006).
Defendants contend that the instant motion was untimely filed under Local Civil Rule 6.3, which states in pertinent part:
Unless otherwise provided by the Court or by statute or rule (such as Fed.R.Civ.P. 50, 52, and 59), a notice of motion for reconsideration or reargument of a court order determining a motion shall be served within fourteen (14) days after the entry of the Court's determination of the original motion....
The Order was filed March 7, 2014, and entered on the docket by the Clerk's office on March 10, 2014. Plaintiff electronically filed the instant motion on March 25, 2014, thus effecting service on Defendants fifteen days after entry of the Order. Plaintiff did not seek an extension of the fourteen-day deadline. Defendants assert that because Plaintiff filed and served the instant motion eighteen days after the Order was filed and fifteen days after it was entered, the motion should be denied. See Luvn' Care, Ltd. v. Regent Baby Prods. Corp., No. 10 Civ. 9492, 2014 U.S. Dist. LEXIS 8441, at *1-2 (S.D.N.Y. Jan. 23, 2014) (denying as untimely motion for reconsideration filed fifteen days after initial order where movant did not seek extension of deadline from court); see also Intellectual Prop. Watch v. U.S. Trade Representative, No. 13 Civ. 8955 (ER), 2014 U.S. Dist. LEXIS 12958, at *2-3 (S.D.N.Y. Jan. 31, 2014) (denying as untimely motion for reconsideration filed twenty-three days after entry of initial order where movant did not seek extension of deadline from court); EEOC v. Bloomberg L.P., No. 07 Civ. 8383 (LAP), 2014 U.S. Dist. LEXIS 18133, at *3 (S.D.N.Y. Jan. 24, 2014) (denying as untimely motion for reconsideration of two motions entered three and a half months and over three years, respectively, before motion for reconsideration filed). Adhering to the strict confines of Local Civil Rule 6.3, Plaintiff's motion for reconsideration must be deemed untimely.
III. INAPPROPRIATENESS OF ARGUMENTS
Defendants contend that Plaintiff's assertions for why the Court overlooked controlling decisions or data amount to new arguments which Plaintiff could have but failed to make in opposing Defendants' initial application for the preliminary injunction. Thus, Plaintiff's instant motion should be denied. See Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012); WestLB AG v. BAC Fla. Bank, 912 F.Supp.2d 86, 95 (S.D.N.Y. 2012). Specifically, Defendants contend Plaintiff's assertion that the contract offered by Defendants on August 27, 2013 - for which Plaintiff, by letter on October 11, 2013, indicated it would exercise its right of first refusal - did not comply with the PMPA because Defendants' offer required the removal of underground storage tanks, fuel pumps, and other property associated with pumping gasoline as a condition of the sale is newly raised and not properly before the Court. Accordingly, Defendants contend that Plaintiff asserts for the first time on reconsideration that the right-of-first-refusal provision, 15 U.S.C. § 2802(b)(3)(D)(iii)(II) ("Subclause II"), was in fact inapplicable, and that Defendants were instead required but failed to make a "bona fide" offer to sell the station, 15 U.S.C. § 2802(b)(3)(D)(iii)(I) ("Subclause I"). Defendants additionally contend that Plaintiff's assertion that the $1.3 million sales price was inflated to account for the removal of the underground storage tanks and related equipment is newly raised and not properly before the Court.
To the extent Plaintiff previously argued in opposition to the preliminary injunction motion that the sales contract Defendants offered Plaintiff was insufficient to satisfy the "good faith" test of 15 U.S.C. § 2802(b)(3)(D), Plaintiff's arguments centered entirely around Subclause II's right of first refusal requirement. More specifically, Plaintiff argued that an amended contract offered on October 28, 2013, did not properly provide a right of first refusal because it contained materially different terms from those offered to third-party purchaser 880 Central Park Avenue LLC ("880 CPA"), those terms being (a) a different financing provision and (b) an additional Mutual Termination agreement which would terminate the franchise relationship between Plaintiff and Gulf Oil. (Pl.'s Br. in Opp'n to Prelim. Inj. Mot. 2, 6.) Thus, Plaintiff's assertion that Defendants did not provide it with a bona fide offer to purchase the Premises under Subclause I is an entirely new theory which Plaintiff failed to advance in opposition to the underlying motion. Analytical Surveys, 684 F.3d at 52; WestLB AG, 912 F.Supp.2d at 95. Previously, Plaintiff relied on Greco v. Mobil Oil Corp., 597 F.Supp. 468 (N.D. Ill. 1984), in ...