United States District Court, S.D. New York
BUILDING SERVICE 32BJ HEALTH FUND; BUILDING SERVICE 32BJ PENSION FUND; BUILDING SERVICE 32BJ SUPPLEMENTAL RETIREMENT & SAVINGS FUND; BUILDING SERVICE 32 BJ LEGAL SERVICES FUND; and THOMAS SHORTMAN TRAINING & SCHOLARSHIP FUND, Plaintiffs / Counterclaim Defendants,
GCA SERVICES GROUP, INC., Defendant / Counterclaim Plaintiff.
OPINION & ORDER
A. ENGELMAYER United States District Judge
February 3, 2017, the Court issued an Opinion and Order
granting in part, and denying in part, the parties'
cross-motions for summary judgment. Dkt. 54
("Opinion"). In sum, the Court (1) granted
plaintiffs' motion to the effect that certain delinquent
benefits contributions were owed to plaintiffs by defendant
GCA Services Group, Inc. ("GCA") under a
multiemployer employee benefit plan; but (2) denied
plaintiffs' motion, and granted defendant's motion,
with respect to plaintiffs' claims for contributions due
between January 1, 2009 and August 3, 2009, which claims the
Court held untimely. On February 27, 2017, plaintiffs filed a
motion for reconsideration of the part of the Court's
decision that held those claims untimely, Dkt. 55
("Motion"), along with a memorandum of law in
support, Dkt. 56 ("Reconsideration Br."). On March
13, 2017, defendant filed a memorandum of law in opposition.
Dkt. 59 ("Reconsideration Opp.").
following reasons, the motion for reconsideration is denied.
standard governing motions 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." Analytical Surveys, Inc.
v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(citation omitted); see also S.D.N.Y. Local Rule 6.3
(requiring the movant to "set[ ] forth concisely the
matters or controlling decisions which counsel believes the
court has overlooked"). Such a motion "is neither
an occasion for repeating old arguments previously rejected
nor an opportunity for making new arguments that could have
been previously advanced." Associated Press v. U.S.
Dep 't of Def, 395 F.Supp.2d 17, 19 (S.D.N.Y. 2005);
see also Goonan v. Fed. Reserve Bankof N.Y., No. 12
Civ. 3859 (JPO), 2013 WL 1386933, at *2 (S.D.N.Y. Apr. 5,
2013) ("Simply put, courts do not tolerate such efforts
to obtain a second bite at the apple."). Rather,
reconsideration is appropriate "only when the [moving
party] identifies an intervening change of controlling law,
the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice."
KolelBeth Yechiel Mechil of Tartikov, Inc. v. YLL
Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013)
are generally barred from introducing new facts in a motion
to reconsider. See Polsby v. St. Martin's Press,
Inc., No. 97 Civ. 690 (MBM), 2000 WL 98057, at *1
(S.D.N.Y. Jan. 18, 2000) (citation omitted). 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." De Los Santos v.
Fingerson, No. 97 Civ. 3972 (MBM), 1998 WL 788781, at *1
(S.D.N.Y. Nov. 12, 1998). The purpose of Rule 6.3 is to
"ensure the finality of decisions and to prevent the
practice of a losing party examining a decision and then
plugging the gaps of a lost motion with additional
matters." Naiman v. N.Y. Univ. Hosps. Ctr., No.
95 Civ. 6469 (RPP), 2005 WL 926904, at *1 (S.D.N.Y. Apr. 21,
2005) (quoting Carolco Pictures, Inc. v. Sirota, 700
F.Supp. 169, 170 (S.D.N.Y. 1988)).
Court assumes familiarity with the facts and procedural
history of this case, as reviewed in the Court's prior
Opinion. The Court here relates only those facts necessary to
resolve this motion.
argue that the Court erred in granting summary judgment in
defendant's favor on the issue of whether plaintiffs'
claims as to contributions due before August 4, 2009 were
time-barred. The Court had held that those claims accrued
when the contributions became delinquent. Thus, the Court
held, with this lawsuit having been filed on August 4, 2015,
claims as to contributions due before August 4, 2009 fell
outside of the six-year statute of limitations governing
civil enforcement actions under 29 U.S.C. § 1132.
Opinion at 11-12. Plaintiffs now ask the Court to reconsider
this finding, and to hold that such claims accrued in 2014,
when plaintiffs discovered GCA's delinquent contributions
in the course of a payroll audit. On this reasoning, such
claims would be timely.
Court declines to revise its prior holding, for two
plaintiffs' motion for reconsideration is itself
untimely. Under Local Rule 6.3, a motion for reconsideration
must be filed within 14 days after entry of the Court's
determination of the original motion. The Court issued its
Opinion on the cross-motions for summary judgment on February
3, 2017. Plaintiffs' deadline to move for reconsideration
was February 17, 2017. Plaintiffs' motion therefore is
untimely, by some 10 days. That alone warrants denial of the
motion. See, e.g., Scarsdale Cent. Serv. v. Cumberland
Farms, Inc., No. 13 Civ. 8730 (NSR), 2014 U.S. Dist.
LEXIS 86552, *8-9 (S.D.N.Y. June 24, 2014) (denying as
untimely a motion for reconsideration); Luv n' Care,
Ltd. v. Regent Baby Prods. Corp., No. 10 Civ. 9492, 986
F.Supp.2d 400, 2014 U.S. Dist. LEXIS 8441, *l-2 (S.D.N.Y.
Jan. 23, 2014) (same); Intellectual Prop. Watch v. U.S.
Trade Representative, No. 13 Civ. 8955 (ER), 2014 U.S.
Dist. LEXIS 12958, *2-3 (S.D.N.Y. Jan. 31, 2014) (same).
even if the Court were to reach the merits, the doctrine on
which plaintiffs rely does not avail plaintiffs. Plaintiffs
are correct that courts-including those in the Second
Circuit-often apply a "discovery rule" in cases
involving delinquent benefit contributions, such that an
action accrues when a plaintiff "discovered or with due
diligence should have discovered, the injury that is the
basis of the litigation." Guilbert v. Gardner,
480 F.3d 140, 149 (2d Cir. 2007). And in support of their
motion for reconsideration, plaintiffs again point, as
before, to two cases that applied that rule and held that the
statute of limitation began to run when plaintiffs actually
discovered the deficiency in benefit contributions. See
Gesualdi v. Juda Constr., Ltd., 2011 U.S. Dist. LEXIS
124349 (S.D.N.Y. Oct. 25, 2011)
(“Gesualdi"), and U.S.W.U. Local 74
Welfare Fund v. Monticello Central Sch. Dist., No. 13
Civ. No. 1779 (ENV) (MDG), 2014 U.S. Dist. LEXIS 72785
(E.D.N.Y. May 18, 2014) ("U.S. W. U. Local 74
Welfare Fund"); see Opinion at 12. On this basis,
plaintiffs ask the Court to hold timely their claims as to
GCA's pre-August 4, 2009 contribution obligations.
See Reconsideration Br. at 3-4.
Court, however, has already held Gesualdi and
U.S. W. U Local 74 Welfare Fund inapposite. Opinion
at 12. As the Court explained, in Gesualdi, there
was unrebutted testimony that the plaintiffs lacked the
records necessary to alert them to the deficient
contributions, such that a routine compliance audit would
have not revealed the existence of plaintiffs' claims
against defendant, see Id. (citing Gesualdi
at * 10). Plaintiffs have not pointed to any such evidence in
this case. And in U.S. W. U. Local 74 Welfare Fund,
the parties agreed that plaintiffs' claims accrued within
the limitations period. See U.S. W. U. Local 74 Welfare
Fund. In contrast, here, the parties stipulated that the
delinquent payments that formed the entire basis for
plaintiffs' claims accrued "between January 1, 2009
and December 31, 2012, " not in 2014, when the audit
uncovered them. See Opinion at 12.
support of reconsideration, plaintiffs also cite Building
Service 32BJ Health Fund v. Nutrition Management Services
Company, No. 15 Civ. 3598 (S.D.N.Y. Feb. 10, 2017)
(“Nutrition Management"), a decision in a
deficient-contributions case issued a week after the
Court's Opinion in this case. There, Judge Forrest held
that the statute of limitations began to run only upon the
benefits funds' discovery of the delinquency. See
Nutrition Management at 6. But the decision there
emphasized the lack of "evidence that the [delinquent
payments] rose to a level that should have awakened an
inquiry by the Fund." Id. at 5-6 (internal
citations omitted). Here, in contrast, plaintiffs have
stipulated that they had a fiduciary duty to conduct payroll
compliance audits, of the type that would have been able
to-and indeed, ultimately did- uncover GCA's contribution
deficiencies. Joint Stipulated Facts ("JSF") ¶
This case thus aligns more closely with those holding, on the
facts at hand, that the claims for delinquent contributions
accrued on the commencement date of the delinquent
contributions. Opinion at 11; see also, e.g., Rumore v.