Philan Insurance v. Frank B. Hall & Co.

755 F. Supp. 94, 1991 U.S. Dist. LEXIS 835, 1991 WL 10865

• Court: District Court, S.D. New York
• Decided: January 28, 1991
• Docket: No. 87 Civ. 4624 (RPP)
• Status: Published

Opinion

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

In an opinion and order filed October 10, 1990 the Court dismissed the complaint in this action as against the corporate defendants but retained jurisdiction over federal and state claims against individual defendants Smith, Maloney and Birnberg. See Philan Ins. Ltd. v. Frank B. Hall & Co., 748 F.Supp. 190 (1990). On October 24 and 29, 1990, respectively, defendants Smith and Birnberg moved for reargument under Local Rule 3(j).¹ For the reasons set forth below, defendants’ motion to reargue is denied.

A motion for reargument should be directed to factual matters or legal authority which counsel believes was present during the motion but which the Court has overlooked. See Heineman v. S & S Mach. Corp., [1989 Transfer Binder] Fed. Sec.L.Rep. (CCH) ¶ 94, 728 (E.D.N.Y. Oct. 2, 1989); Ashley Meadows Farm, Inc. v. American Horse Shows Ass’n, Inc., 624 F.Supp. 856, 857 (S.D.N.Y.1985).

Defendants Smith and Birnberg have failed to present any new factual matter or pertinent legal authority. Defendants’ lack of grounds for the instant motion is amply demonstrated by the fact that (1) the only eases they cite are those pertaining to relief requested pursuant to 28 U.S.C. § 1292(b);² and (2) the only matters presented are portions of prior briefs on the underlying motion decided on October 10. It is apparent that defendants merely seek to relitigate the issues decided by the Court in its opinion of October 10, 1990. “Defendants’ disagreement with the reasoning and conclusions of the [October 10] Opinion alone is not enough to warrant a reversal of the prior opinion.” Lund v. Chemical Bank, 675 F.Supp. 815, 818 (S.D.N.Y.1987) (motion for reconsideration), rev’d on other grounds, 870 F.2d 840 (2d Cir.1989). Accordingly, defendant’s motion to reargue and for other relief³ is denied.

IT IS SO ORDERED.

1 . Smith filed legal memoranda in support of the motion and in reply to plaintiffs' opposition; Birnberg filed no memoranda but instead relied on those submitted on behalf of defendant Smith.

Defendant Maloney has not made an appearance in this action.

2 . The Court declines to certify any issues in this action for immediate interlocutory appeal under 28 U.S.C. § 1292(b). Although "an immediate appeal from the order may materially advance the ultimate termination of [this] litigation,” 28 U.S.C. § 1292(b), defendants have offered no authority demonstrating that there is "substantial ground for difference of opinion," id., on the issues decided. See Shipping Corp. of India, Ltd. v. American Bureau of Shipping, 752 F.Supp. 173 (S.D.N.Y.1990).

3 . The Notice of Motion filed by defendant Smith also requested an order dismissing Counts 1 and 2 of the Second Amended Complaint (RICO) pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted and Counts 3, 4, 5 and 8 pursuant to Rule 12(b)(1). Defendants' requests are denied for the reasons set forth in this Court's earlier opinion. See Philan, 748 F.Supp. at 195-99.