Opinion
00 Civ. 0364 (RWS).
March 7, 2001.
IRA STURM, ESQ., REGINA E. FAUL, ESQ., RAAB, STURM GOLDMAN, New York, NY, for Plaintiffs.
IRA DROGIN, ESQ., New York, NY, for Defendants.
OPINION
Defendant Vanderveer Estates Holding, LLC ("Vanderveer") has moved for reconsideration or reargument pursuant to Local Rule 6.3 of the Rules of the Southern and Eastern Districts of New York, or to alter or amend a portion of this Court's January 17, 2001 opinion pursuant to Rules 52(b), 59(e), and 60(b) of the Federal Rules of Civil Procedure, to reflect that it is not bound to contribute to the plaintiff Building Service 32B-J Health, Pension and Annuity Funds (the "Funds") after November 26, 2000. For the reasons set forth below, the motion will be denied.
The notice of motion and supporting memorandum of law suggest that Vanderveer not be required to contribute after October 26, 2000 or 2001. (Mtn at 1; Def. Mem. at 4.) However, the affirmation setting forth the facts on which the motion is based asserts that the relevant date is in fact November 26, 2000, ten days after it filed a cancellation notice on November 16, 2000. (Drogin Aff. ¶ 6 and Ex. 3.)
The Parties and Related Entities
Local 32B-J, Service Employees International Union, AFL-CIO ("Union") is a labor organization that represents members employed in the building service industry in metropolitan New York City.
The Funds are jointly administered, multi-employer, labor-management trust funds based in New York City. The Funds are employee benefit plans that provide benefit coverage for participants employed by employers who are parties to collective bargaining agreements with the Union. The purpose of the Funds is to receive contributions from employers who are parties to collective bargaining agreements with the Union, to invest and maintain those monies, and to distribute pensions, health and insurance benefits, and annuity payments to eligible employees.
The Realty Advisory Board on Labor Relations, Inc. ("RAB") is a multi-employer organization which is a signatory to a series of collective bargaining agreements ("CBA") with the Union covering employees of apartment buildings in New York city.
Vanderveer is a for-profit domestic limited liability company based in New York City that owns several buildings in Brooklyn and employs workers covered by the RAB collective bargaining agreement.
Procedural History
The prior proceedings in this case are set forth in three prior opinions of this Court, familiarity with which is assumed. See Building Service 32B-J Health Fund v. Vanderveer Estates Holding, LLC, ___ F. Supp.2d. ___, 2001 WL 40818 (S.D.N.Y. Jan. 17, 2001)(Vanderveer III); Building Service 32B-J Health Fund v. Vanderveer Estates Holding, LLC, 121 F. Supp.2d 750 (S.D.N Y 2000); ("Vanderveer II"); Building Service 32B-J Health Fund v. Vanderveer Estates Holding, LLC, 115 F. Supp.2d 459 (S.D.N Y 2000) ("Vanderveer I").
Vanderveer filed the instant motion on January 29, 2001, requesting leave to submit affidavit evidence and seeking relief from that portion of Vanderveer III which it construes to hold that Vanderveer continues to be liable for contributions to the Funds pursuant to the Evergreen Clause after November 26, 2000. The Funds opposed the motion in a brief filed on February 2, 2001. Vanderveer filed reply papers on February 13, 2001, and the motion was deemed fully submitted on February 14, 2001.
I. The Motion to Alter, Modify or Reconsider is Denied.
A. The Court Has Discretion to Reconsider
This Court has the discretion to reconsider Vanderveer's obligation to contribute after November 26, 2000 pursuant to Local Civil Rule 6.3, to amend its findings pursuant to Rule 52(b), Fed.R.Civ.P., or to alter or amend the prior opinion pursuant to Rule 59(e) or Rule 60(b), Fed.R.Civ.P., upon motion filed within ten days of the entry of the opinion. The burden is on the moving party to demonstrate that the Court overlooked controlling decisions or material facts that were before the Court on the original motion and might have "materially have influenced its earlier decision." Anglo American Ins. Co. v. Calfed, Inc., 940 F. Supp. 554, 557 (S.D.N.Y. 1996).
Local Rule 6.3 must be narrowly construed and strictly applied so as to avoid duplicative rulings on previously considered issues, and may not be employed as a substitute for appealing a final judgment. See Shamis v. Ambassador Factors, 187 F.R.D. 148, 150 (S.D.N.Y. 1999). Therefore, a party moving for reargument under Rule 6.3 "may not advance new facts, issues or arguments not previously presented to the court." Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 1989 WL 162315, at * 3 (S.D.N Y 1989).
Moreover, neither Rule 52(b) nor Rule 59(e) is a vehicle by which a party may introduce preexisting facts or arguments that were not previously raised. See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (Rule 52(b) does not provide relief to a party "merely ruing an oversight of its own in failing to introduce foreseeably relevant evidence."); Katz v. Berisford International PLC, No. 96 CIV. 8695 (JGK), 2000 WL 1760965, *5 (S.D.N.Y. Nov. 30, 2000) (Rule 59(e) does not allow parties to proffer previously available facts for the first time on reargument). Alteration or amendment of a prior decision pursuant to Rule 59(e) is appropriate "only where controlling law has changed, new evidence is available, and/or clear error must be corrected or manifest injustice prevented." Cavallo v. Utica-Watertown Health Ins. Co., 3 F. Supp.2d 223, 225 (N.D.N.Y. 1998).
B. The Proffered Grounds for Reconsideration, Alteration or AmendmentVanderveer III held that Vanderveer was bound to continue making contributions to the Funds after the 1997 Agreement expired on April 20, 2000, pursuant to its Evergreen Clause, because neither of the two exclusive methods of termination had been invoked as of the date of the opinion. The 1997 Agreement provided that an employer could terminate its obligation to contribute by either (1) negotiating and executing a successor agreement; or (2) issuing a ten-day notice of cancellation after unsuccessfully attempting to negotiate a successor agreement. (Faul Summ. Judg. Aff. Ex. C at 89; 1997 Agreement Art. XVII, XVIII.)
In this motion, Vanderveer seeks to present evidence not previously submitted showing that Vanderveer invoked the ten-day cancellation notice option of the 1997 Agreement on November 16, 2000, after unsuccessfully attempting to negotiate a new Agreement on two occasions in November of 2000. As a result, Vanderveer argues, it has fulfilled the contractual prerequisites to termination and should not be bound to the 1997 Agreement after the ten-day notice of cancellation period ended on November 26, 2000. Although these events took place whileVanderveer III was sub judice, neither party brought them to the Court's attention before that opinion was issued. Vanderveer contends that it would cause "manifold injustice" not to amend the prior opinion to relieve it from the obligation to contribute after November 26, 2000 because it has met the contractual prerequisites to termination.
Pursuant to Local Rule of Civil Procedure 6.3, no affidavits may be filed except with leave of the Court.
A third negotiation session took place on December 14, 2000. (Drogin Aff. ¶ 9.)
In opposition, the Funds argue that the relief sought is procedurally unavailable; should not be granted without granting the Union leave to appear and oppose the motion as an indispensable party; and is moot because the Funds seek only contributions through June 30, 2000.
C. The Proffered Grounds for Reconsideration Do Not Justify Amending Vanderveer III
Because it is neither procedurally appropriate nor necessary to grant the relief requested, the motion will be denied. First, the existence of negotiations and the ten day notice of cancellation were facts known to Vanderveer while the prior motion was sub judice. Having elected not to present evidence thereof in opposition to the Funds' prior motion for reconsideration, Vanderveer cannot now claim that these events constitute "newly discovered evidence" that may be considered pursuant to Rules 59(e) or 60(b). See, e.g., United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (rejecting Rule 60(b) argument where evidence was in possession of movant "all along"), cert.denied, Potamkin Cadillac Corporation v. U.S., 103 S.Ct. 3128 (1983). Rule 6.3 similarly bars the belated introduction of this evidence. See, e.g., Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 1989 WL 162315.
Second, Vanderveer's motion seeks to have the Court determine whether it must continue to contribute to the Funds after November 26, 2000, although this action seeks only contributions through June 30, 2000. (Funds Amd. Stmt. Undisp. Mat. Facts. ¶ 13.) While Vanderveer's obligation to make contributions to the Funds after June 30, 3000 will undoubtedly be the subject of future litigation, the precise date when Vanderveer's obligation terminated is not relevant to the instant case. Therefore, this motion does not present a question that is ripe for review by this Court.
Vanderveer has not invoked the Declaratory Judgment Act, 28 U.S.C. § 2201, to ascertain the date on which its duty to contribute terminated.
Vanderveer argues convincingly that construing the Agreement to continue in force absent negotiation and notice of cancellation could allow the Union to lock in an Employer indefinitely by refusing to engage in good faith bargaining. However, this question is not presented in this action. The holding inVanderveer III that Vanderveer was liable to contribute to the Funds after April 20, 2000, extends only through the period for which the Funds sought relief in this action, from April 21, 2000 through June 30, 2000. As such, denying this motion will not cause the manifest injustice of which Vanderveer warns.
Conclusion
For the foregoing reason, the motion is denied.
It is so ordered.