Opinion
15 Civ. 9248 (NRB)
11-10-2016
LUV N' CARE LTD. and ADMAR INTERNATIONAL, INC., Plaintiffs, v. GOLDBERG COHEN, LLP, LEE A. GOLDBERG, and MORRIS E. COHEN, Defendants.
MEMORANDUM AND ORDER
Plaintiffs Luv n' Care Ltd. ("LNC") and Admar International, Inc. ("Admar") (collectively, "plaintiffs") move this Court pursuant to Federal Rule of Civil Procedure 59(e) to alter, amend, and/or reconsider the judgment entered in this case dismissing plaintiffs' claims. Plaintiffs' claims were dismissed pursuant to the Court's Memorandum and Order dated August 18, 2016 (the "Order") granting defendants' motion to dismiss. Plaintiffs also request leave to amend their Amended Complaint. For the following reasons, plaintiffs' motion is denied in its entirety.
DISCUSSION
"A court may grant a Rule 59(e) motion only if the movant satisfies the heavy burden of demonstrating 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Hollander v. Members of the Bd. of Regents, 524 F. App'x 727, 729 (2d Cir. 2013) (summary order) (quoting Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). "Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple. . . . Rather, the standard for granting [a Rule 59 motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked." Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (alteration in original) (internal quotation marks and citation omitted), as amended (July 13, 2012). "Whether to grant or deny a motion for reconsideration or reargument is in the sound discretion of a district court judge." U.S. Titan, Inc. v. Guangzhou Men Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (internal quotation marks omitted).
Here, in seeking reconsideration of the Order, which found plaintiffs' claims barred by the applicable Louisiana statute of limitations, plaintiffs essentially, and inappropriately, rehash arguments they made in opposition to the motion to dismiss. The Court already considered these arguments thoroughly and finds no basis to alter its rulings.
Here, as it is frequently, context is important. This motion is plaintiffs' fourth bite at the proverbial apple. Following the filing of this case defendants, abiding by this Court's Individual Practices, sought a pre-motion conference on the proposed motion to dismiss on the ground that all of the asserted claims were time-barred under the applicable statute of limitations. Plaintiffs filed a three-page, single-spaced, well-cited letter, in response to defendants' letter of equal length. Defendants replied by another well-cited three-page letter. Thereafter, a phone conference was held during which defendants were given leave to make the proposed motion and plaintiffs were given the opportunity to file an amended complaint, which they subsequently did. Full briefing was followed by oral argument on August 4, 2016, yielding a 40-page transcript.
The issues were clearly delineated from the outset. In logical order they were:
1. Which state's law governs the timeliness of plaintiffs' claims;
2. If Louisiana law governed, did Louisiana Revised Statutes § 9:5605 ("Section 5605") and its one-year statute of limitations apply to defendants' representations; and
3. If Louisiana law applied to defendants' representations, were the alleged claims of malpractice time-barred, i.e. because the injury occurred, and was or reasonably should have been discovered, more than one year before plaintiffs asserted their claims.
With respect to each of these issues, plaintiffs' re-argument motion is fundamentally and fatally flawed. As to the first, plaintiffs do not seriously challenge the applicability of Louisiana law, nor could they, for the reasons set out in our original decision at pages 1-2 and 11-14. As to the second issue, plaintiffs' counsel acknowledged at oral argument that, if Louisiana law applied, all of defendants' representations of the plaintiffs were "authorized" under Section 5605 and that, as a consequence, the one-year statute of limitations applied. Tr. 13-15. Finally, as to the accrual issue, there were similar concessions during oral argument. Tr. 17, 31-33.
Against this backdrop, what do plaintiffs argue? First, they argue that another Louisiana statute of limitations should apply, but they ignore the fact that both statutes have a one-year limitations period, thus making the distinction inconsequential, and that the issue was fully addressed in footnote 17 of our decision. Second, they argue, without any basis, that defendants engaged in fraudulent concealment. A variant of this argument was addressed and rejected at oral argument, where the role of long-term in-house counsel, the hiring of another firm to pursue certain claims, and the withdrawal of defendants as counsel was discussed. Third, they claim that cases we cited in our original opinion contain contrary holdings, when they do not. Finally, plaintiffs cite extensively to a case that they failed to reference at any previous time and that does not in any way disturb our original findings.
Plaintiffs' reliance on Titus v. Wilson, --- So. 3d ---, No. 2015-C-0575, 2015 WL 7998292 (La. Ct. App. 4th Cir. Dec. 4, 2015), is wholly misplaced. Titus, a decision by an intermediate appellate court, held that when the "admitted to practice in this state" prong of Section 5605 applies, the attorney does not get the benefit of the one-year limitations period in the statute before the attorney is admitted pro hac vice in a proceeding in Louisiana. Here there is only one claim of malpractice involving a case in Louisiana, and there is no issue at all relating to the timing of defendants' admission pro hac vice. To the extent that the plaintiffs rely on the Titus court's observation that the word "authorized" in Section 5605 modifies the statute's reference to organizational structures whereby attorneys combine to practice law, we have no quarrel with the grammatical construction. After all, only individual lawyers are admitted (to the bar or pro hac vice) to practice law, while entities must be "authorized" by the laws of the state to engage in the practice of law. Here there is no dispute that all of the representations were authorized, as plaintiffs' counsel recognized during oral argument and when he agreed with this Court's broader analysis on this point, which included the conclusion that Goldberg Cohen would therefore be "entitled to the benefit of [Section 5605]." Tr. at 14-15.
At bottom, plaintiffs' motion simply seeks to "relitigat[e] old issues, present[] the case under new theories, secur[e] a rehearing on the merits, [and] otherwise tak[e] a second bite at the apple" - really, a fourth bite at the apple here. Analytical Surveys, 684 F.3d at 52 (internal quotation marks omitted). Rule 59 does not allow such tactics. Plaintiffs have not satisfied the "heavy burden of demonstrating an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice" necessary for reconsideration. Hollander, 524 F. App'x at 729.
Plaintiffs also ask this Court to amend the judgment to specify that the dismissal is not an adjudication on the merits. Plaintiffs make this application to avoid the preclusive effect of the Order in a related lawsuit filed by Goldberg Cohen pending in this Court. See Defs.' Answer, Counterclaims and Declaratory Judgment of Termination with Cause and No Remaining Liability, Goldberg Cohen, LLP v. Luv n' Care, Ltd., 16-cv-6576 (NRB) (S.D.N.Y. Sept. 23, 2016).
Federal Rule of Civil Procedure 41(b) provides that an involuntary dismissal, with certain exceptions inapplicable here, "operates as an adjudication on the merits" unless the dismissal order specifies otherwise. The Supreme Court has interpreted Rule 41(b) to bar a plaintiff whose claims have been dismissed with prejudice by a district court from bringing the same claims again in the same court. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 506 (2001). However, the broader preclusive effect of a dismissal on statute of limitations grounds by a federal court sitting in diversity is determined by the preclusion law of the forum state. Id. at 508.
Generally, under New York law, a dismissal on statute of limitations grounds "is considered to be on the merits, precluding relitigation of that issue in a subsequent action." Meegan S. v. Donald T., 64 N.Y.2d 751, 752, 475 N.E.2d 449, 450 (1984) (citations and internal quotation marks omitted); Hae Sheng Wang v. Pao-Mei Wang, 96 A.D.3d 1005, 1007, 947 N.Y.S.2d 582, 585 (2d Dep't 2012). Therefore, under New York law, the Order constitutes an adjudication on the merits. Plaintiffs' motion to amend the judgment to state otherwise is denied, and leave to amend is likewise denied. This result is supported by the fact that plaintiffs already availed themselves of one opportunity to amend by leave of the Court after being fully informed that defendants intended to move to dismiss the initial complaint on statute of limitations grounds. See State Trading Corp. of India v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir. 1990).
CONCLUSION
For the reasons stated above, plaintiffs' motion is denied in its entirety. This Memorandum and Order terminates docket no. 57.
SO ORDERED. DATED: New York, New York
November 10, 2016
/s/_________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE