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Vicuna v. O.P. Schuman & Sons, Inc.

United States District Court, E.D. New York

October 31, 2017

FEDERICA VICUNA and MARTIN VARELAS, Plaintiffs,
v.
OP. SCHUMAN& SONS, INC., S.K.S. EQUIPMENT CO., and AMERIPAK INC., Defendants.

          MEMORANDUM & ORDER

          KORMAN, J.

         Plaintiffs Federica Vicuna and her husband Martin Varelas bring this action against S.K.S. Equipment Co. ("S.K.S"), AmeriPak, Inc. ("AmeriPak"), and O.P. Schuman & Sons, Inc. ("Schuman"). Plaintiffs allege numerous claims sounding in products liability based on a workplace injury that plaintiff Vicuna sustained while using a machine that S.K.S. manufactured under its AmeriPak brand name. S.K.S. is now a defunct company. Schuman has purchased much of the assets once under the control of S.K.S., including the AmeriPak brand name.

         There are currently four motions pending. First, the plaintiffs move for reconsideration of my order dated May 19, 2015. That order granted Schuman's motion for summary judgment on the plaintiffs' so-called independent failure to warn claim. Second, Schuman moves to preclude the plaintiffs' proffered expert witness. Third, Schuman moves for summary judgment seeking dismissal of nearly all remaining claims outstanding against it. Fourth is the plaintiffs' motion for leave to amend their complaint.

         BACKGROUND

         I. Factual Background

         On February 22, 2012, plaintiff Vicuna was injured while using a Model 60 packaging machine manufactured by S.K.S. See First Federica Vicuna Depo., Sept. 5, 2014, 10:1-17:17, ECF No. 47-2. This occurred during the course of her work for Muffins 'n' More, Inc. in Brooklyn, New York ("Muffins 'n' More" or "plaintiffs employer"). Id. The Model 60 is known in the packaging industry as a "horizontal wrapper." See Eng'g Report, Eric Heiberg, July 29, 2016, ECF No. 94-14, at 2-4. Model 60s use a conveyor belt to move baked goods towards a point of operation where plastic film is wrapped around them. Id. Once the plastic film covers the baked goods, the machine then cuts and seals the plastic film with a descending heating element that forms a pinch point. Id.

         While operating a Model 60 in "manual mode, " the plaintiff crushed and burned three of her fingers, requiring amputation. See AmeriPak Model 60 Operator's Manual, ECF No. 89-9, at 1-9; First Sterner Depo., Sept. 19, 2014, 115:5-7, ECF No. 47-5; First Vicuna Depo. 10:23-11:9; 37:4-18. Unlike when in "automatic mode, " the Model 60 can run in manual mode without a polycarbonate guard in place to protect operators from contacting the pinch point. See Operator's Manual, at 1-9; First Sterner Depo. 47:18-49:16. Without the polycarbonate guard in place, the pinch point is exposed and an operator is free to place his or her hand into that area. Indeed, Vicuna's employer directed her to sometimes operate the Model 60 in manual mode so that she could place her hand very close to the pinch point area. This allowed her to adjust certain "small" baked goods so that they would not "bounce around" and become damaged at the pinch point. See First Vicuna Depo. 54:10-25. The plaintiff was performing this precise task when her accident occurred.

         The operator's manual for the Model 60 expressly contemplates that operators will use the machine in manual mode for "setup" as well as for "jogging" of the machine. See Operator's Manual, at 1 -9. The operator's manual also states that "GUARDS MUST BE IN PLACE BEFORE OPERATING." Id. at 1-7. Plaintiff Vicuna was apparently never given a copy of the operator's manual, nor any other written instructions for the machine. First Vicuna Depo. 29:22-30:15; 32:7-18. The plaintiff testified that she did not realize that placing her fingers near the machine's moving parts was dangerous. Id. at 49:18-50:19; 53:8-14. She testified that she would not have operated the machine in such a manner had she known of the danger. Id. She did not remember seeing any warning decals on the machine the day of the accident. Id. at 49:12-17.

         A decal of some sort was in fact present on the Model 60 based on my review of a photograph taken in December 2012, roughly 9 months after the plaintiffs accident. In the photograph, the decal is difficult, if not impossible, to decipher. See Photograph AmeriPak Model 60, Dec. 4, 2012, ECF No. 98-1. Schuman asserts that the decal warned against placing an operator's hand near the pinch point. See Def's Reply Mem. Supp. Mot. Summ. J., Feb. 17, 2017, ECF No. 99, at 8-9. Importantly, whatever the decal portrayed, it appears that the decal was positioned such that an operator could see it only when the protective guard was horizontal and already secured in place, and not when the guard was vertical and unsecured-i.e., when a warning would be useful. See Photograph AmeriPak Model 60.

         The Model 60 horizontal wrapper was the first in a line of wrapping machines that S.K.S. manufactured and marketed under the AmeriPak brand name. See First Sterner Depo. 34:15-24. S.K.S. discontinued the Model 60 around 1999. S.K.S. then sold the last machine of that model in 2004, though production continued on other models within the AmeriPak line. See William Schuman Aff, Sept. 12, 2013, ECF No. 47-7, at ¶ 10. Although S.K.S. thrived for a period, by 2004 its sales had decreased and it was forced to either sell the business or allow a bank takeover. See First Sterner Depo. 37:14-21; 38:13-21.

         Around December 2004, defendant Schuman purchased certain S.K.S. assets for approximately $300, 000. See Asset Purchase Agreement, ECF No. 47-1, at ¶¶ 1, 2. The primary purpose of the asset sale was for Schuman to obtain the AmeriPak product line and continue the line under its own control. See William Schuman Depo., Sept. 18, 2014, ECF No. 74-3, 22:4-15; 51:20-24. Indeed, Schuman obtained blueprints and patents for the AmeriPak line of machines. See First Sterner Depo. 75:11-76:19. Schuman also obtained the goodwill that came with the AmeriPak line along with a list of customers and purchase records. See Schuman Depo. 40:2-19; 60:2-8; 60:23-61:19. After Schuman purchased the assets of S.K.S., all eight S.K.S. employees joined Schuman. See First Sterner Depo. 36:3-14; Schuman Depo. 63:19-22; Jim O'Shea Depo., Sept. 19, 2014, ECF No. 49-4, 17:1-7; 55:23-57:20.

         Numerous documents were brought from the S.K.S. facility to the Schuman facility following the asset purchase. Specifically, an engineering folder was brought to the Schuman facility. This folder contained a one-page "alternative electronic schematic" for the S.K.S. manufactured Model 60. See O'Shea Depo. 23:11-22; 27:2-5; 27:21-28:9; 53:6-15; 60:18-21; 61:2-12; Resp. to Pls.' Supp. Not. to Produce, June 27, 2016, ECF No. 98-4, at 5; Second Sterner Depo., July 5, 2016, ECF No. 89-5; 257:4-8. The alternative schematic provided a workaround design that, through rewiring, altered the Model 60. This alteration made it so that the Model 60 could not operate in any mode-neither automatic nor manual-without the polycarbonate guard in place to protect operators. See Second Sterner Depo. 255:10-256:5.

         Whether Schuman technically purchased this engineering folder and the alternative schematic is unresolved on the record. Schuman asserts repeatedly that the folder and schematic are "S.K.S. documents" and "not Schuman documents." See, e.g., William Schuman Aff., Jan. 18, 2017, ECF No. 90-1, at ¶ 15. Schuman further claims that it was not aware of these documents until as late as July 2016, roughly three years after this litigation began. See, e.g., Def's Mem. Opp'n Pls.' Mot. for Reconsideration, Jan. 20, 2017, ECF No. 90, at 6. Nevertheless, the documents have been stored at Schuman's facility since around the time of the S.K.S. asset sale in 2004. Moreover, at least two of Schuman's long-time employees testified that, at all pertinent times, they were readily familiar with these documents. See O'Shea Depo. 23:11-22; 27:2-5; 27:21-28:9; 53:6-15; 60:18-21; 61:2-12; First Sterner Depo. 16:1-8; 36:12-17; 44:10-13; Def's Mem. Opp'n Pls.' Mot. for Reconsideration, at 6.

         Since its asset purchase in 2004, Schuman has continued designing and manufacturing the line of AmeriPak horizontal wrappers originally created by S.K.S. Today, however, Schuman incorporates rewiring similar (if not identical) in nature to that set out in the S.K.S. alternative electronic schematic mentioned above. See Eng'g Report, at 11. Thus, new wrappers manufactured by Schuman cannot operate in either automatic or manual mode unless the protective guard is secured in place. See Second Sterner Depo. 257:19-258:11.

         Around January 2012, roughly seven years after the asset purchase and approximately seven weeks before plaintiff Vicuna's injury, her employer, Muffins 'n' More, contacted Schuman to request spare parts and an operator's manual for its Model 60 horizontal wrapper. See Schuman Depo. 105:14-106:17; 110:10-24; Manual Invoice, Jan. 5, 2012, ECF No. 49-12; Parts Invoice, Jan. 12, 2012, ECF No. 49-13. Soon after the request from Muffins 'n' More, Schuman mailed the desired spare parts and operator's manual. Muffins 'n' More had not purchased any parts from Schuman prior to this time. Nor is there any evidence of contact after this point. See Schuman Depo. 112:6-113:14.

         The operator's manual included a personalized cover page designating AmeriPak as "a division of OP. Schuman and Sons, Inc., " although the substance of the manual was written by S.K.S. See Operator's Manual, at 1; First Sterner Depo. 44:19-45:17. The second page of the manual was also personalized. It stated in effect that "this manual has been prepared for Muffins 'n' More" and then listed the contact information for the Schuman sales department. Operator's Manual, at 2. The operator's manual did not include any alternative schematics, not even the one-page alternative schematic that had been stored within the engineering folder described earlier. See Id. The parties agree that Muffins 'n' More never contacted Schuman directly about servicing the Model 60 horizontal wrapper in question. They further agree that Schuman never made a service call to Muffins 'n' More. See generally Pls.' Mem. Opp'n Def's 1st Mot. Summ. J., March 16, 2015, ECF No. 49-18.

         Review of the exhibits filed with the instant motions reveals that at least two other known accidents in addition to plaintiff Vicuna's have occurred involving Model 60 horizontal wrappers. First, depositions indicate that another accident occurred at Muffins 'n' More in 2014, two years after plaintiff Vicuna's accident. That accident involved the same exact underlying machine and resulted in another amputation. See Isabella Ortega Depo., March 17, 2016, ECF No. 98-7, 31:23-33:12. Second, plaintiffs have discovered that, in or around 1995, S.K.S. was sued in an Iowa lawsuit styled Lindsey v. S.K.S. Equipment Co. Pls.' Mem. Supp. Mot. for Reconsideration, at 8-9. That case involved another workplace accident. The machine in question there was a Model 60 with serial number 102-just one serial number higher than the Model 60 underlying this litigation, number 101. See Id. The plaintiffs in the present case suspect that S.K.S. created the one-page alternative design schematic addressed earlier in response to the Lindsey case, possibly as part of a settlement there. See id.

         II. Procedural Background & Belated Discovery Production

         Plaintiffs filed suit against Schuman on May 14, 2013 for its role in plaintiff Vicuna's injuries, including Schuman's role as successor to S.K.S. The complaint asserted claims sounding in strict products liability, failure to provide proper warnings, breach of express warranty, breach of implied warranty, negligence, and loss of services on behalf of Vicuna's husband, Martin Varelas. See generally Compl., May 14, 2013, ECF No. 1. Plaintiffs later filed an amended complaint, which added S.K.S. and AmeriPak as defendants. See Am. Comp., July 17, 2013, ECF No. 4, at 1.

         Schuman then filed a cross-claim against S.K.S. See Answer, Aug. 8, 2014, ECF No. 36, at 5. Schuman additionally filed a third-party complaint against Muffins 'n' More, plaintiffs employer. See 3d Party Compl., June 19, 2015, ECF No. 55. In turn, Muffins 'n' More filed counterclaims against Schuman. See Answer to 3d Party Compl., Aug. 6, 2015, ECF No. 61. Plaintiffs have voluntarily dismissed defendant AmeriPak. See Stip. & Order, June 30, 2014, ECF No. 30. The court clerk has entered default against S.K.S. for failure to plead or otherwise defend the action. See Entry of Default, Aug. 15, 2014, ECF No. 40. Thus, Schuman, Muffins 'n' More, and the plaintiffs are the only parties that remain active in this litigation.

         On March 16, 2015, Schuman moved for summary judgment on the issue of successor liability. Schuman additionally moved for summary judgment as to plaintiffs' claim against Schuman for its "independent" failure to warn (i.e., Schuman's failure to warn plaintiffs employer about defects in the Model 60, notwithstanding that S.K.S. and not Schuman manufactured that machine). See Def's Mot. Summ. J., March 16, 2015, ECF No. 47. On May 19, 2015, applying Pennsylvania law, I denied Schuman's motion for summary judgment on successor liability. See Vicuna v. O.P. Schuman & Sons, Inc., 106 F.Supp.3d 286, 294-95 (E.D.N.Y. 2015). Applying New York law, I granted Schuman's motion on the independent failure to warn claim, finding that the record did not show the requisite "special relationship" between Schuman and plaintiff Vicuna or her employer. Id. at 16-18. In short, while noting that Schuman might still be liable for warning failures as a successor to S.K.S., I held that New York law placed no independent duty to warn on Schuman, given its limited contact with the plaintiff and her employer. See id.

         The plaintiffs ask me to reconsider today my independent failure to warn holding based on new evidence. The new evidence is that Schuman was in possession of the alternative electronic schematic at the time it provided plaintiffs employer with the operator's manual for the Model 60. See Pls.' Mem. Supp. Mot. for Reconsideration, at 8-9. Thus, the plaintiffs assert that, under the circumstances taken as a whole, this new evidence of Schuman's possession of the alternative design schematic tips the scale in favor of the plaintiffs on the issue of whether Schuman had an independent duty to warn. See Id. at 22-24.

         Critical to plaintiffs' assertion is their contention that Schuman withheld from discovery the alternative design schematic. See Id. at 8-9. Indeed, discovery here has been long and convoluted. On May 28, 2014, plaintiffs served on Schuman a request for production. In that request, plaintiffs demanded "all documents, memorandum, notes, letters and/or complaints prepared by O.P. Schuman, received by O.P. Schuman, or maintained by O.P. Schuman related to the safety guards of the Model 60 Horizontal Wrapper" or "related to operating the Model 60 Horizontal Wrapper in manual mode." See Pls.' Not. to Produce, May 28, 2014, ECF No. 89-3, at ¶¶ 14, 15. Schuman responded to that request three months later, on August 28, 2014. See Schuman Supp. Resp. Not. to Produce, Aug. 28, 2014, ECF No. 89-4, at ¶¶ 14, 15. Schuman asserted that "none" of the plaintiffs' requested documents existed. Id.

         Next, on September 19, 2014, during the deposition of a long-time Schuman employee, it appeared that, contrary to its earlier discovery responses, Schuman might be maintaining an engineering folder on the Model 60. Over the course of the deposition, it became clear that the folder might contain information relevant to the functionality and design of the Model 60, and possibly its safety guard. See O'Shea Depo. 60:13-66:11. During that deposition, counsel for the plaintiffs demanded that, if the engineering folder in fact existed at the Schuman facility, it be preserved and produced. See Id. at 65:17-66:11. Schuman's counsel and Schuman's president both acknowledged this demand on the record. Id. The plaintiffs additionally followed-up regarding this matter with counsel for Schuman after the deposition, though the record does not detail the nature of the plaintiffs' follow-up. Ultimately, the plaintiffs were forced to seek an order from Magistrate Judge Kuo on June 2, 2016, directing Schuman to search for and produce the engineering folder. See Minute Entry, June 2, 2016. In short, Schuman did not provide the engineering folder-nor the one-page alternative schematic contained within that folder-until roughly two years after the September 2014 deposition. Indeed, Schuman's supplemental production of these documents as well as other previously unproduced documents began around June 27, 2016 and continued as late as September 12, 2016. See Resp. to Pls.' Supp. Not. to Produce, June 27, 2016, ECF No. 89-6, at ¶ 3; Supp. Resp. to Pls.' Post-Depo. Demands, Sept. 12, 2016, ECF No. 89-7, at 5.

         By the time Schuman completed its supplemental production on September 12, 2016, it had been roughly 1.5 years since I granted Schuman's motion for summary judgment on the plaintiffs' independent failure to warn claim. Plaintiffs now argue that, had they possessed the engineering folder and alternative schematic at the time of Schuman's motion for summary judgment, they would have successfully defeated that motion. See generally Pls.' Mem. Supp. Mot. for Reconsideration. They emphasize that the engineering folder contained the one-page alternative schematic that provided a workaround to prevent the Model 60 from operating in manual mode without proper guarding. Id. at 22-24. Plaintiffs further highlight that the alternative design set out in the one-page schematic is similar or identical to the current design of the AmeriPak wrappers that Schuman now produces. This information, plaintiffs argue, would have defeated Schuman's motion for summary judgment because Schuman's knowledge of a feasible alternative design helps to trigger an independent duty to warn under New York law. Id.

         As for why Schuman failed to provide these documents upon plaintiffs' original request in May 2014, Schuman has offered no sound excuse. Instead, Schuman continues to argue that these documents are "not Schuman document[s]" and that Schuman's president was unaware of the existence of these documents until July 2016. See William Schuman Aff, Jan. 18, 2017, at ¶ 15. What is concerning here is that, in response to plaintiffs' May 2014 request for production, the record does not establish that Schuman put forth any particular effort that would have led to the discovery and production of the engineering folder or the alternative schematic.

         Indeed, a long-time Schuman employee familiar with these documents testified that no one asked him to search for responsive documents. See O'Shea Depo. 62:1-3. Certainly, Schuman has not specified what actions, if any, it took to locate responsive documents in the time following plaintiffs' May 2014 request. Nor is there reason to believe that Schuman put forth any effort to locate responsive documents following the September 19, 2014 deposition, at which Schuman was informed that responsive documents might exist in its facility. See O' Shea Depo. 60:13-66:11.

         Had it not been for the plaintiffs' investigatory work and its follow-up efforts, Schuman never would have made a supplemental production. Indeed, though I will not go into detail here, it was apparently through a third-party source that the plaintiffs found out about Schuman's likely discovery failures. See Pls.' Mem. Supp. Mot. for Reconsideration, at 8-9. Upon uncovering Schuman's potential discovery failures, the plaintiffs quickly began serving renewed demands for depositions and document productions. Id. This eventually led to Schuman's supplemental productions of documents that had been within its custody and control all along. Id.

         DISCUSSION

         I. Plaintiffs' Motion for Reconsideration

         A. Procedure

         The plaintiffs move for reconsideration of my May 19, 2015 order based on the newly discovered one-page alternative design schematic that Schuman maintained during all pertinent times but did not produce until 2016. The plaintiffs move pursuant to Rules 60(b) and 59(e) of the Federal Rules of Civil Procedure. See Pls.' Mem. Supp. Reconsideration, at 2.1 address each Rule in turn.

         Rule 60(b) is not a proper avenue for reconsideration here. The Rule provides that a district court may grant a party relief from certain "final" orders in the event of, among other things, new evidence:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)

Fed. R. Civ. Pro. 60(b). The Advisory Committee Notes following Rule 60 state unequivocally that only final orders fall within the scope of Rule 60(b). The Notes state that "[t]he addition of the qualifying word 'final' emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief." Fed.R.Civ.P. 60(b), Advisory Committee Notes 1946 Amendment; see also Fennell v. TLB Kent Co., 865 F.2d 498, 501 (2d Cir. 1989) (analyzing Rule 60 Advisory Committee Notes).

         Judge Schofield recently addressed this issue, collecting a great number of useful authorities. Like the Advisory Committee Notes, Judge Schofield concludes that Rule 60(b) applies only to final orders. Importantly, Judge Schofield concludes that the question of whether an order is final-and thus within the scope of Rule 60(b)-turns on whether it is appealable. Only orders that are appealable will be considered final within Rule 60(b). Put differently, nonappealable orders are generally considered interlocutory, and therefore outside the scope of Rule 60(b):

Because Rule 60(b) enumerates grounds for relief from a "final judgment, order or proceeding, " the threshold question is whether [my previous order] is "final." Fed.R.Civ.P. 60(b) (emphasis added and capitalization altered). Contrary to the parties' assumption, [my previous order] is not "final" within the meaning of Rule 60(b).
The prevailing rule in this Circuit and elsewhere is that an order is final for purposes of Rule 60(b) when it is appealable. "The standard test for whether a judgment is 'final' for Rule 60(b) purposes is . . . whether the judgment is sufficiently 'final' to be appealed." 12 James Wm. Moore et al., Moore's Federal Practice § 60.23 (cited in, inter alia, Luv n' Care, Ltd. v. Regent Baby Prods. Corp., 986 F.Supp.2d 400, 411 n.3 (S.D.N.Y. 2013), reconsideration denied, (S.D.N.Y. 2014); Bank Leumi USA v. Ehrlich, No. 12 Civ. 4423, Dkt. No. 58, at 2 (S.D.N.Y. Feb. 18, 2014); Floyd v. City of New York, 813 F.Supp.2d 457, 464 n.65 (S.D.N.Y. 2011); Alvarez v. Am. Airlines, Inc., No. 98 Civ. 1027, 2000 WL 145746, at *1 (S.D.N.Y.Feb. 8, 2000); see also Gucci Am., Inc. v. Weixing Li, No. 10 Civ. 4974, 2012 WL 1883352, at *2 (S.D.N.Y. May 18, 2012) (collecting cases), vacated on other grounds, 768 F.3d 122 (2d Cir. 2014). The Second Circuit has not expressly articulated this rule, but has adopted it by implication. See In re U.S. Lines, Inc., 216 F.3d 228, 235 (2d Cir. 2000) (citing cases equating finality to appealability in finding district court's venue order in a bankruptcy case, which fell under district court's "original" rather than "appellate" jurisdiction, as not final for Rule 60(b) purposes). At least three other circuits have stated that Rule 60 applies only to appealable final orders or judgments. See Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571 (7th Cir. 2006) ("Rule 60(b) of the Federal Rules of Civil Procedure ... by its terms limited to 'final' judgments or orders, is inapplicable to interlocutory orders."); Perm W. Assocs., Inc. v. Cohen, 371 F.3d 118, 125 (3d Cir. 2004) (same); Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000) (explaining that "a preliminary injunction is not a 'final judgment, order, or proceeding' that may be addressed by a motion under Rule 60(b)" because it is "interlocutory").
As is well established, for purposes of an appeal, "[a] final judgment or order is one that conclusively determines all pending claims of all the parties to the litigation, leaving nothing for the court to do but execute its decision." Petrello v. White, 533 F.3d 110, 113 (2d Cir.2008). The "core application" of the statute that confers appellate jurisdiction, 28 U.S.C. § 1291, "is to rulings that terminate an action." Gelboim v. Bank of America Corp., 135 S.Ct. 897, 902 (2015). Barring a district court's entry of a partial final judgment based on an express determination that "there is no just reason for delay, " "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties. " Fed. R. Civ. P. 54(b) (emphasis added).

In re Shengdate, Inc. Sec. Litig., No. 11-cv-1918, 2015 WL 3422096, at *3-4 (S.D.N.Y. May 28, 2015).

         Here, it is clear that my May 19, 2015 order was not appealable. The order was thus interlocutory and not final within the meaning of Rule 60(b). Indeed, my order did not adjudicate all of the claims before me, and it did not dismiss any party from the litigation. Nor did I enter a partial final judgment or a determination that "there is no just reason for delay." See id; see also In re World Trade Center Disaster Site Litig., 521 F.3d 169, 178 (2d Cir. 2008) (describing what constitutes a final order). Thus, Rule 60(b) cannot provide the plaintiffs with relief.

         Next for consideration is Rule 59(e). That Rule permits parties to file motions to "alter or amend a judgment." See Fed. R. Civ. P. 59(e). There is again a threshold question here: whether my May 19, 2015 order granting partial summary judgment qualifies as "a judgment" within the scope of Rule 59(e). This question is not entirely settled. Some courts hold that summary judgment orders fall outside Rule 59(e) because, in general, Rule 59 addresses post-trial motions. See, e.g., Hill v. Bethlehem Steel Corp., 729 F.Supp. 1071, 1072 n.l (E.D. Pa. 1989), aff'd, 902 F.2d 1560 (3d Cir. 1990). Other courts hold that Rule 59(e) applies to summary judgment orders because subsection (e) in particular does not limit itself to post-trial motions. See, e.g., Larry Spier, Inc. v. Bourne, Co., No. 90-cv-1065, 1991 WL 51146, at *1 (S.D.N.Y. Apr. 3, 1991) (considering motion to amend judgment under Rule 59(e) even though "there is some force to the suggestion" that motion for summary judgment "does not fall within the rule."); Travelers Ins. Co. v. Buffalo Reins. Co., 739 F.Supp. 209, 210 (S.D.N.Y. 1990) (vacating summary judgment order upon Rule 59(e) motion).

         Even assuming that my May 19, 2015 order of partial summary judgment falls within the scope of Rule 59(e), I still decline to grant reconsideration under that Rule. Courts impose an exacting 28-day time limit within which parties must file a motion under Rule 59(e). "A district court is not empowered to extend the time to file a Rule 59(e) motion." Corines v. Am. Physicians Ins. Trust, 615 Fed.App'x 708, 708 (2d Cir. 2015) (summary order). In fact, Rule 6(b)(2) expressly prohibits time extensions under Rule 59(e): "A court must not extend the time to act under" Rule 59(e). In this case, plaintiffs filed their motion roughly 1.5 years after my May 19, 2015 decision. Plaintiffs may not proceed under Rule 59(e).

         Plaintiffs may nonetheless proceed under Rule 54(b), pursuant to which I have express authority to reconsider all interlocutory orders. See United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982) (addressing both civil and criminal cases and stating that "district court has the inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment"). Rule 54(b) provides that an "order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment. . . ." Fed.R.Civ.P. 54(b) (emphasis added); see also Parmar v. Jeetish Imports, Inc., 180 F.3d 401, 402 (2d Cir. 1999) ("All interlocutory orders remain subject to modification or adjustment prior to the entry of a final judgment adjudicating the claims to which they pertain."); Kotlicky v. U.S. Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987) (indicating that all district court orders will be subject to modification and revision to the extent they are non-final, especially where an order was not relied upon by the parties); 11 Wright, Miller & Kane Federal Practice and Procedure § 2852, 292-93 (3d ed. 2012) ("[T]he power of a court to modify an interlocutory judgment or order at any time prior to final judgment remains unchanged and is not limited by the provisions of Rule 60(b).").

         While a district court may revise decisions under Rule 54(b), it is not obligated to do so. Rather, the "law of the case doctrine" controls. According to this doctrine, a district court may reconsider prior adjudications where to do so would not be inconsistent with the objectives of efficiency and finality. See Virgin Ail. Airways, Ltd. v. Nat 7Mediation Bd.,956 F.2d 1245, 1255 (2d Cir. 1992); Tri-Star Pictures, Inc. v. Leisure Time Prod, B.V., 88-cv-9127, 1992 WL 296314, at *2 (S.D.N.Y. Oct. 6, 1992). In other words, the doctrine provides district courts with discretion to revisit earlier rulings "subject to the caveat that 'where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.'" Offi ...


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