Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Demirovic v. Ortega

United States District Court, E.D. New York

November 9, 2017

KUJTIM DEMIROVIC et al., Plaintiffs,
FRANKLIN ORTEGA et al., Defendants.


          Cheryl L. Pollak United States Magistrate Judge.

         The defendants in this retaliation and wage-and-hour action seek reconsideration of the Court's post-trial Memorandum and Order restraining the defendants' assets and enjoining the defendants from dissipating those assets except as allowed by New York law or further order of the Court. In their motion for reconsideration, the defendants do not point to any controlling decisions or material facts that the Court overlooked in rendering its decision, and none of the arguments they have presented would alter the Court's decision to issue a post-verdict restraining order that includes defendant Rocio Uchofen. The defendants thus fail to meet the strict standard for reconsideration embodied in Local Civil Rule 6.3, and the Court therefore denies defendants' motion for reconsideration.


         This action was commenced on January 21, 2015, by plaintiffs Kujtim Demirovic, Richard Reinoso, Murto Avdalovic, and Senad Perovic (collectively, “plaintiffs”) against Franklin Ortega, Rocio Uchofen, and P.O. Italianissimo Ristorante Inc. (the “Restaurant” or “Italianissimo”) (collectively, “defendants”), pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”) § 650 et seq. The plaintiffs sought to recover unpaid overtime and minimum wages, along with applicable liquidated damages, under both the FLSA and NYLL, as well as damages for defendants' unlawful withholding of gratuities, failure to provide wage notices, and retaliation.[1] On September 21, 2015, the parties consented to have the case re-assigned to the undersigned for all purposes.

         The Court bifurcated the trial of this matter so that wage and hour claims under the FLSA and NYLL were presented in the first trial, while retaliation claims under those same statutes were presented in a second trial. The first trial began on October 23, 2017 and continued until October 25, 2017. On October 26, 2017, the jury returned a verdict against the Restaurant and Ortega, but found Uchofen was not an “employer” and therefore was not liable for the unpaid wages. In the second trial, held on the same day, the jury returned a verdict in favor of the plaintiffs against all defendants, including Uchofen, on the retaliation claim.

         On November 3, 2017, the Court issued an Order restraining the defendants' assets and enjoining the defendants from dissipating such assets under New York CPLR § 5229 and Federal Rule of Civil Procedure 64. See Demirovic v. Ortega, No. 15 CV 327, 2017 WL 5135573 (E.D.N.Y. Nov. 3, 2017) (ECF No. 105). By letter motion dated November 7, 2017, the defendants seek reconsideration of the decision to issue the restraining order. (See Defs.' Mot., [2]Nov. 7, 2017, ECF No. 106). The plaintiffs filed an opposition on the same day. (See Pls.' Opp'n, [3] Nov. 7, 2017, ECF No. 107).


         A. Legal Standard Governing Motions for Reconsideration

         Local Civil Rule 6.3 allows parties to file motions for reconsideration within 14 days of a court order regarding “matters or controlling decisions which counsel believes the court has overlooked.” “The standard for granting such a motion 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.” Hastings Dev., LLC v. Evanston Ins. Co., No. 14 CV 6203, 2016 WL 3632708, at *2 (E.D.N.Y. June 29, 2016) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)); accord Salveson v. JP Morgan Chase & Co., 663 Fed.Appx. 71, 75- 76 (2d Cir. 2016), cert. denied, 137 S.Ct. 1826 (2017).

         Generally, courts have found that the main 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.” Id. (quoting Virgin Atl. Airways Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). Thus, the “moving party may not advance new facts, issues[, ] or arguments not previously presented to the Court.” Haggar Int'l Corp. v. United Co. for Food Indus. Corp., No. 03 CV 5789, 2013 WL 3356953, at *1 (E.D.N.Y. July 3, 2013) (quoting Winkler v. Metro. Life Ins. Co., 340 F.Supp.2d 411, 413 (S.D.N.Y. 2004)); see also City of New York v. Milhelm Attea & Bros., Inc. et al, 591 F.Supp.2d 234, 236 (E.D.N.Y. 2008) (finding that “[a] motion for reconsideration” is not “an occasion for repeating old arguments previously rejected”) (quoting Associated Press v. United States Dep't of Def., 395 F.Supp.2d 17, 19 (S.D.N.Y. 2005)); Ferrand v. Credit Lyonnais, 292 F.Supp.2d 518, 520 (S.D.N.Y. 2003) (holding that Rule 6.3 is “not . . . a vehicle for a party dissatisfied with the court's ruling to advance new theories that the movant failed to advance in connection with the underlying motion”). New evidence is evidence that was “truly newly discovered or could not have been found by due diligence.” Space Hunters, Inc. v. United States, 500 F. App'x 76, 81 (2d Cir. 2012) (quoting United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983)); see also United States v. All Funds on Deposit in, or Transferred to or Through, Banc of Am. Account No. 207-00426 Held in the Name of Kenneth V. Jaeggi and Patti S. Jaeggi, No. 05 CV 3971, 2007 WL 2114670, at *2 (E.D.N.Y. July 16, 2007) (explaining that “[a] party may not use a motion to reconsider as an opportunity . . . to introduce new evidence that should have been advanced on the previous motion or which could have been discovered in the exercise of due diligence”) (citations omitted).

         The Rule is to be “narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have already been considered fully by the court, ” Callari v. Blackman Plumbing Supply, Inc., 988 F.Supp.2d 261, 287 (E.D.N.Y. 2014) (quoting Trans-Pro Logistic Inc. v. Coby Elecs. Corp., No. 05 CV 1759, 2010 WL 4065603, at *1 (E.D.N.Y. Oct. 15, 2010)), and such a motion must not be used as a substitute for an appeal. See Ferrand v. Credit Lyonnais, 292 F.Supp.2d at 520 (stating that Local Rule 6.3 should not be used “as a substitute for appealing a final judgment”). Instead, the rule “is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” Haggar Int'l Corp. v. United Co. for Food Indus. Corp., 2013 WL 3356953, at *2 (quoting Winkler v. Metropolitan Life Ins. Co., 340 F.Supp.2d at 412)). Rule 6.3 was designed to provide a mechanism to “correct a clear error or prevent manifest injustice.” Jordan v. Metropolitan Life Ins. Co., No. 03 CV 4110, 2004 WL 1752822, at *2 (S.D.N.Y. Aug. 4, 2004) (quoting Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied sub nom., Catholic Home Bureau v. Doe, 464 U.S. 864 (1983)).

         B. Analysis

         The defendants argue that the Court should grant reconsideration of its prior Order because the jury concluded in the first trial that Rocio Uchofen was not an “employer” within the meaning of the NYLL or FLSA. (Defs.' Mot. at 1). Defendants contend that a party may not be liable for retaliation unless the party has also been found to be an “employer” under the NYLL or FLSA. (Id.)

         In response, the plaintiffs argue that the defendants have not met the strict standard required for a motion for reconsideration. (Pls.' Opp'n at 1-2). On the merits, the plaintiffs explain that in contrast to the wage-and-hour provisions that apply only to an “employer, ” both the NYLL and FLSA retaliation provisions apply to “any person.” (See id. at 2). The plaintiffs also observe that the defendants affirmatively agreed to the jury instructions and verdict ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.