Campers' World International, Inc. v. Perry Ellis International, Inc.

221 F.R.D. 409, 2004 U.S. Dist. LEXIS 7338, 2004 WL 912375

Opinion

OPINION AND ORDER

ROBERT P. PATTERSON, JR., District Judge.

The Defendants/Cross-Defendants Aris Industries, Inc., Europe Craft Imports, Inc., ECI Sportswear, Inc., and Arnold Simon (the “Aris Parties”) request to file a second summary judgment motion based on both the settlement agreement and the release is denied.

First, contrary to the contention of the Aris Parties (letter from Marjorie Berman to Judge Patterson of 4/23/04, at 1), the prior motion was not made before discovery took place. Certain discovery had taken place, e.g., depositions were taken of Mr. Guy Kin-berg and Mr. Mark Stern key witnesses on the fraud claim. See Campers’ World Int’l, Inc. v. Perry Ellis Int’l, Inc., No. 02 Civ. 453, 2003 WL 21403959, at *4 (S.D.N.Y. June 18, 2003) (citing depositions of Mr. Kinberg and Mr. Stern).

Second, it is the Court’s practice to advise parties that bringing summary judgment motions prior to the end of discovery will prevent that party from bringing the same motion on the same grounds at the close of discovery.

Third, it is improper for a party to file a successive motion for summary judgment which is not based upon new facts and which seeks to raise arguments it could have raised in its original motion. Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552 (S.D.N.Y.2004) (denying to use court’s discretion to review successive summary judgment motion because no new facts or arguments were raised in the second motion that could not have been raised on the first motion for summary judgment).

Fourth, in its prior summary judgment motion, the Aris Parties had a full opportunity to raise the matter of law arguments under New York law that they now propose to make.

IT IS SO ORDERED.