Opinion
97-CV-0882E(M)
July 7, 2000
Pro Se, Boca Raton, FL, ATTORNEYS FOR THE PLAINTIFF.
Delta — Susan Foney, Esq., c/o Nixon, Hargrave, Devans Doyle, Buffalo, NY, Carol S. Snider, Esq., c/o Daman Morey, Bufalo, NY, ATTORNEY FOR THE DEFENDANT.
MEMORANDUM and ORDERPresently before this Court are defendants' motions for reconsideration of a Memorandum and Order filed November 17, 1999 ("November Order") which denied defendants' motions for summary judgment. See Peca v. Delta Air Lines, Inc., No. 97-CV-0882E(M), 1999 WL 1067571 (W.D.N.Y. Nov. 17, 1999). Such motions will be denied.
While familiarity with the facts is presumed some facts relevant to this motion are reviewed. This diversity action is based on strict products liability and negligence claims arising from plaintiff's travel — purportedly as a passenger on a McDonnell Douglas MD-SO ("MD-80") aircraft — on defendant Delta Air Lines Flight No. 234 December 23, 1994 ("Flight 234"). Plaintiff alleges that he now suffers from tinnitus as a result of has exposure to "extreme and continuous noise" which emanated from the MD-80's engines. Compl. ¶¶ 8, 9, 11. In the November Order, this Court acknowledged that, while there was compelling evidence that Flight 234 employed a Boeing model 727-200 series aircraft ("Boeing 727"), there remained a genuine issue of material fact as to this contention and denied defendants' motions for summary judgment. Defendants now come before this Court and move for reconsideration on the ground that the November Order did not address the issue of causation. They argue that plaintiff has not presented "even a scintilla of evidence * * * to support any causal link between has injuries and any conduct on the part of Delta." Delta Mem. in Support of Reconsideration at 2.
The Second Circuit Court of Appeals has stated that the major 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." Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1256 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller E. Cooper, Federal Practice Procedure § 4478 at 790). Motions for reconsideration are not designed to provide for wasteful repetition of argument already briefed, considered and decided. See Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y 1990). In the instant case, defendants have not claimed an intervening change of law and there can be no claim of availability of new evidence inasmuch as the evidence regarding causation clearly was available to the attorneys for inclusion in their original motion papers. Instead, defendants — for whatever reason — based their arguments in their original papers on the ground that there was no genuine issue of material fact as to the model of the aircraft. Moreover, defendants have shown neither clear error nor that a manifest injustice would occur if the November Order is not reconsidered. In short, inasmuch as the courts have an interest in encouraging the parties to present their arguments as completely as possible in the first set of motions, the undersigned can find no good reason to consider defendants' arguments at this time. See, e.g., United States v. Jones, 158 F.R.D. 309, 313 (D.N.J. 1994).
Despite the urging of defendants, the issue of causation was not before this Court, in large part due to their own failure to address this issue in their original motions and papers. Rule 7(b)(1) of the Federal Rules of Civil Procedure states, in relevant part, that "[a]n application to the court for an order shall be made by motion which * * * shall state with particularity the grounds sought therefor * * *." In each defendant's prior notice of motion for summary judgment and the concomitant memorandum of law, the issue of causation was conspicuously absent. The first time any defendant raised this issue in writing was in the reply affidavit of Delta's attorney. See Roney Aff., May 5, 1999, ¶ 9. At oral argument May 7, 1999 on the summary judgment motion, moreover, the attorneys for defendants continued to substantially focus their arguments on the issue of whether the aircraft was an MD-80 (as plaintiff contends) or a Boeing 727 (as defendants contend) and it was only in response to a question from this Court that defendants cursorily focused part of their arguments on the issue of causation and without the obligatory references to relevant case law. Assuming, arguendo, that plaintiff knew that a discussion of causation was forthcoming, the absolute paucity of coverage regarding causation in the attorney affidavit was not likely to provide the plaintiff with fair notice how he should respond to such argument. In fact, at the oral argument, this Court admonished the plaintiff that he was not to present new evidence that had not been raised in has papers as it would not give defendants a fair opportunity to respond. It stands to reason that this admonition is no less applicable to the instant defendants. Colloquially stated, "what is sauce for the goose is sauce for the gander." Another district court well-summarized this logic as follows: "The Court does not and will not make a practice of addressing the merits of issues first raised in a reply, as the opposing party is not afforded any opportunity to respond to new issues raised in a reply, which is ordinarily the last document submitted prior to the Court's ruling on a motion." Knapp v. Miller, 873 F. Supp. 375, 378 (D. Nev. 1994); see also U.S. v. Letscher, 83 F. Supp.2d 367, 377 (S.D.N.Y. 1999) ("arguments raised in reply papers are not properly a basis for granting relief"); University of Cal. Press v. G.A. Ins. Co. of N.Y., No. CV-94-4950 (CPS), 1996 WL 497143, at *4 (E.D.N.Y Aug 26, 1996) ("raising an argument for the first time in a reply brief is not sufficient to provide notice * * * because the adverse party is deprived of a chance to respond to the argument"). Such sapience appears all the more prudent wherein the opposing party is proceeding pro se.
See Delta's Notice of Motion, Delta's Mem. in Support of Summary Judgment, McDonnell Douglas' Notice of Motion and Aff. in Support of Summary Judgment.
It must be mentioned here that a pro se plaintiff should be given the benefit of the doubt regarding has ability to respond to the motion. The Supreme Court has held that pleadings of pro se parties should be held to less stringent standards than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Likewise, it would be patently unjust to expect a pro se plaintiff to respond to arguments included only in a reply affidavit and mentioned only briefly at oral argument and, for this reason, the undersigned declines to entertain defendants' motions for reconsideration.
Accordingly, it is hereby ORDERED that defendants' motion for reconsideration of this Court's November 17, 1999 Memorandum and Order denying summary judgment is denied and that the parties shall appear in Part III of this Court on the 21st day of July, 2000 at 3:00 p.m., or as soon thereafter as the matter may be heard, to set a date for trial.