United States District Court, E.D. New York
MEMORANDUM & ORDER
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Procedural Background & Belated Discovery
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,
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.
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.
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.
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.
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.
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
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
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.
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.
Plaintiffs' Motion for Reconsideration
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.
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).
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
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).
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.
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).
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).
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).").
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 ...