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CMS Volkswagen Holdings, LLC v. Volkswagen Group of America, Inc.

United States District Court, S.D. New York

October 3, 2014



NELSON S. ROMN, District Judge.

Defendant moves for reconsideration and reargument of this Court's Opinion and Order of June 6, 2014 (ECF No. 39), which granted in part and denied in part Defendant Volkswagen Group of America, Inc.'s ("Defendant" or "VWoA") motion to dismiss and Plaintiffs' cross-motion for leave to amend (the "June Order"). Familiarity with the June Order is assumed. For the following reasons, the motion for reconsideration and reargument is DENIED.


Motions for reconsideration and/or reargument are governed by Local Civil Rule 6.3 and Fed.R.Civ.P. 60(b). The standard is strict. Targum v. Citrin Cooperman & Co., No. 12 Civ. 6909 (SAS), 2013 WL 6188339, at* 1 (S.D.N.Y. Nov. 25, 2013). Reconsideration "is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Allen v. Antal, No. 12-cv-8024, 2014 WL 2526913 (S.D.N.Y. June 3, 2014). "[R]econsideration will generally be denied unless the moving patty can point to controlling decisions[1] or data that the court overlooked and that might reasonably be expected to alter the conclusion reached by the court." In re Optimal U.S. Litig., 886 F.Supp.2d 298, 311-12 (S.D.N.Y. 2012) (internal quotation marks omitted); accord Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 39, 52 (2d Cir. 2012). Alternatively, a court may grant a motion for reconsideration to "correct a clear error or prevent manifest injustice." Optimal, 886 F.Supp.2d at 312 (internal quotation marks omitted). But motions for reconsideration are not "vehicle[s]... for presenting the case under new theories... or otherwise taking a second bite at the apple." Allen, 2014 WL 2526913, at *2. Rather, "Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Sys. Mgmt. Arts Inc. v. Avesta Techs, Inc., 106 F.Supp.2d 509, 521 (S.D.N.Y. 2000). "New arguments which could have been raised previously may not be raised on a motion for reconsideration." Thypin Steel Co. v. Certain Bills of Lading, No. 96-2166 (RPP), 1999 WL 108728, at *1 (S.D.N.Y. Mar. 3, 1999).


Plaintiffs seek reconsideration and reargument on all of the claims that the June Order dismissed: (1) Plaintiff CMS Volkswagen Holdings, LLC d/b/a Palisades Volkswagen's ("Palisades") claim under section 463(2)(g) of the New York Franchised Motor Vehicle Dealer Act ("Dealer Act"), N.Y. Veh. & Traf. Law § 460 et seq. (the "Subdivision (g) Claim"), (2) both Plaintiffs' claims under Dealer Act § 463(2)(ff) (the "Subdivision (ff) Claims"), and (3) both Plaintiffs' claims under Dealer Act § 463(2)(k) (the "Subdivision (k) Claims").

I. Reconsideration and Reargument Are Denied as to the Dismissal of the Subdivision (g) Claim

A. The Subdivision (g) Claim

The Subdivision (g) Claim concerns the legality of VWoA's "Variable Bonus Program." The central issue is whether the Variable Bonus Program falls within the "safe harbor" of Dealer Act § 463(2)(g), which permits only those incentives or discounts that "are reasonably available to all franchised motor vehicle dealers in this state on a proportionately equal basis. " Id. (emphasis added). The Variable Bonus Program is an incentive program that pays bonuses to Volkswagen dealers that meet certain sales objectives. (Compl. ¶ 28, ECF No. 22-1.) Those sales objectives are set by a formula-one formula that applies the same variables and constants to all dealers. Palisades has two theories for its claim that the Variable Bonus Program is unlawful. ( See Pls.' Mem. Law Supp. Mot. Recons. Rearg. at 2, ECF No. 42 [hereinafter "Pls.' Br."].)

Palisades' first theory is that the Variable Bonus Program is unlawful because it uses "regional segment-adjusted market share" as one of the variables in the formula to set sales objectives. ( Id. ) Palisades alleges that by using a market share variable that is measured at the regional level, the Variable Bonus Program does not adequately account for local variations in consumer preferences, making it harder for some dealers to meet sales objectives (and reap the benefits of the Variable Bonus Program) than other dealers in the same region. ( Id. ) For example, according to Palisades, dealers in Westchester and Rockland Counties are subject to the same regional segment-adjusted market share under the Variable Basis Program because they are both in the downstate New York region. ( Id. at 3-4.) However, it is allegedly easier for dealers in Westchester to meet sales objectives than dealers in Rockland because consumer preferences are more favorable to German and European cars (such as Volkswagen) in Westchester than in Rockland. ( Id. at 3-4.)

Palisades next complains that the Variable Bonus Program permits another type of allegedly unfair advantage to go unchecked. The Variable Bonus Program's sales objectives depend not only on regional segment-adjusted market share, but also on the size of a dealer's assigned territory. ( Id. at 3.) But although sales objectives are set by reference only to the assigned territory, dealers can sell vehicles to customers in territories that have no assigned dealer ("open points") in addition to customers in their own assigned territory. As a result, dealers located near open points have an easier time meeting sales objectives than dealers located far from any open points. ( Id. at 12.) Plaintiffs argue that this imbalance takes the Variable Bonus Program out of the safe harbor.

The June Order found that the Variable Bonus Program met the safe harbor as a matter of law and dismissed the Subdivision (g) Claim.

B. Plaintiffs' Arguments Concerning Palisades' Dismissed Subdivision (g) Claim are Unavailing

Most of Plaintiffs' present arguments concerning the Subdivision (g) Claim were raised, fully considered, and disposed of in connection with the motion to dismiss and cross-motion to amend. "[A] motion for reconsideration is not an opportunity to press more strenuously the same arguments made in the original motion." Am. Home Assurance Co. ...

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