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Childers v. New York and Presbyterian Hospital

United States District Court, S.D. New York

July 11, 2014

DR. HENRY ERLE CHILDERS IV, ET AL., Plaintiffs,
v.
THE NEW YORK AND PRESBYTERIAN HOSPITAL, ET AL., Defendants, DR. LORI SIMON, ET AL., Plaintiffs,
v.
THE NEW YORK AND PRESBYTERIAN HOSPITAL, ET AL., Defendants,

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge.

Before the Court is New York and Presbyterian Hospital's (the "Hospital") Motion for Partial Reconsideration of the Court's June 23, 2014, Motion to Dismiss Order ("Motion to Reconsider"). For the reasons discussed below, the Motion to Reconsider is denied.[1]

Also before the Court is a letter from the Hospital requesting a pre-motion conference to move for an order that the Court certify for immediate appeal whether 28 U.S.C. 7422 ("§ 7422") preempts the current actions ("Request to Certify"). For the reasons discussed below, this request is also denied.

I. Background

Drs. Henry Earle Childers, IV and George Bino Rucker, on behalf of themselves and others similarly situated filed their complaint against the Hospital on August 2, 2013, alleging fraud, constructive fraud, breach of fiduciary duty, negligent misrepresentation, negligence, breach of contract and unjust enrichment. Drs. Lori Simon, Bezalel Dantz, Peter Hahn and Tracey Marks, on behalf of themselves and others similarly situated filed their complaint against the Hospital on August 21, 2013, alleging breach of fiduciary duty and unjust enrichment. On October 9, 2013, the two cases were consolidated for pre-trial purposes.

On October 31, 2013, the Hospital moved to dismiss both complaints in their entirety under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and, in the alternative, under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim ("Motion to Dismiss"). On June 23, 2014, the Court issued an Opinion and Order denying the Hospital's Motion to Dismiss as to all claims, except the breach of contract claim ("Opinion"). On July 7, 2014, the Hospital filed its Motion to Reconsider and its Request for a Pre-Motion Conference.

II. Standard of Review

A. Motion for Reconsideration

The standard for granting a motion for reconsideration "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). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks omitted).

"[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader, 70 F.3d at 257. "A party seeking reconsideration is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings." Wechsler v. Hunt Health Sys., Ltd., No. 94 Civ. 8294, 2004 WL 2210261, at *2 (S.D.N.Y. Sept. 30, 2004) (internal quotation marks omitted). "The motion to reconsider cannot properly advance new facts, issues or arguments not previously presented to the court." Id. (internal quotation marks omitted).

B. Request to Certify

A district court should not certify an interlocutory order for appeal unless: (1) the order "involves a controlling question of law" (2) "as to which there is substantial ground for difference of opinion, " and (3) an immediate appeal "may materially advance the ultimate termination of the litigation...." U.S.C. § 1292(b). "A controlling question of law exists if: (1) reversal of the district court's opinion could result in dismissal of the action, (2) reversal of the district court's opinion, even though not resulting in dismissal, could significantly affect the conduct of the action, or (3) the certified issue has precedential value for a large number of cases." In re Lloyd's Am. Trust Fund Litig., No. 96 CIV. 1262, 1997 WL 458739, at *4 (S.D.N.Y. Aug. 12, 1997).

Certification is to be "strictly limited to the[se] precise conditions...." Gottesman v. Gen. Motors Corp., 268 F.2d 194, 196 (2d Cir. 1959). Moreover, "even if the order qualifie[s] for certification under 28 U.S.C. § 1292(b), the certification decision is entirely a matter of discretion for the district court...." In re Roman Catholic Diocese Inc., 745 F.3d 30, 36 (2d. Cir. 2014). The Second Circuit "urge[s] the district courts to exercise great care in making a § 1292(b) certification." Westwood Pharm., Inc. v. Nat'l Fuel Gas Dist. Corp., 964 F.2d 85, 89 (2d Cir. 1992).

Certification under § 1292(b) "is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation." Telectronics Proprietary, Ltd. v. Medtronic, Inc., 690 F.Supp. 170, 172 (S.D.N.Y.1987) (citation omitted). Section 1292(b) was "not intended as a vehicle to provide early review ...


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