United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
Spyros Cope ("Plaintiff") commenced this action
against his former employer, Defendant Wal-Mart Stores East,
LP ("Defendant"). Plaintiff alleges that he was
improperly terminated from his position as an assistant store
manager at Wal-Mart Store #3547, located in Norwalk,
Connecticut, due to his race. Defendant moved for partial
summary judgment [Doc. 31] as to Plaintiff's claim for
unlawful termination under the Connecticut Fair Employment
Practices Act ("CFEPA"), Conn. Gen. Stat. §
46a-60(a)(1) (Count I). On June 28, 2017, this Court issued a
Ruling [Doc. 41] (the "June 28 Ruling") granting
Defendant's motion for partial summary judgment on Count
I of Plaintiff's Complaint. Familiarity with this Ruling
is assumed. The facts relevant to this lawsuit were
set forth in detail in the June 28 Ruling, and need not be
repeated here. Plaintiff now moves for reconsideration of the
Court's Ruling on several grounds. For the reasons that
follow, Plaintiff's motion for reconsideration is DENIED.
STANDARD FOR RECONSIDERATION
standard for granting a 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-matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court." Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995) (citing Schonberger v.
Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y. 1990)). The
Second Circuit has adhered to the strict standard for
reconsideration set forth in Shrader. See, e.g.,
Oparah v. New York City Dep't of Educ., 670
Fed.Appx. 25, 26 (2d Cir. 2016) (quoting Shrader, 70
F.3d at 257). The Local Rules of Civil Procedure in this
District dictate that "[m]otions for reconsideration
shall not be routinely filed and shall satisfy the strict
standard applicable to such motions. Such motions will
generally be denied unless the movant can point to
controlling decisions or data that the court overlooked in
the initial decision or order." D. Conn. L. Civ. R.
well-settled that a motion for reconsideration 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.'"
Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v.
GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998)), as
amended (July 13, 2012). See also Shrader, 70
F.3d at 257 ("[A] motion for reconsideration should not
be granted where the moving party seeks solely to relitigate
an issue already decided."); Lopez v. Smiley,
375 F.Supp.2d 19, 21-22 (D. Conn. 2005) ("A motion for
reconsideration may not be used to plug gaps in an original
argument or to argue in the alternative once a decision has
been made." (quotation marks and citation omitted)). It
follows 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 Atl. Airways, Ltd. v. Nat'l Mediation
Bd., 956 F.2d 1245, 1255 (2d Cir.1992) (quoting 18 C.
Wright, A. Miller & E. Cooper, Federal Practice &
Procedure § 4478 at 790). See also Kolel Beth
Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable
Trust, 729 F.3d 99, 104 (2d Cir. 2013) (same).
raises several grounds upon which he argues that
reconsideration of the June 28 Ruling is warranted.
Specifically, Plaintiff contends that:
(1) the Court erroneously accepted inadmissible evidence of
Jasmin Noel's purported reasons for filing Cope; (2)
after the Court's decision, Defendant disclosed that Noel
had been located, thus justifying reconsideration and an
opportunity to seek discovery from him; (3) the Court did not
consider the inference a jury may draw against Defendant for
failing to produce a legitimate justification for terminating
Cope; (4) the Court did not consider the adverse inference
that a jury may properly draw against Defendant for failing
to call Noel as a witness at trial; and (5) the Court did not
consider the inference a jury may draw concerning the
likelihood that Robinson influence [sic] Noel's decision
based upon the fact that Robinson shared his discriminatory
views with previous holders of Noel's position.
Doc. 42 at 1. Plaintiff thus advances four main grounds for
reconsideration: that (1) the Court erred in its
determination that Plaintiff failed to meet his burden to
establish a prima facie case of discrimination; (2) the Court
erred in its determination that Defendant advanced a
legitimate, non-discriminatory justification for
Plaintiff's termination; (3) new evidence exists, as
Defendant recently disclosed it has the contact information
for witness Jasmin Noel; and (4) the Court erred by not
finding that Defendant should be subject to an adverse
inference at the time of trial. In opposition, Defendant
argues that Plaintiff's motion is procedurally infirm,
untimely, and fails to satisfy the strict standard required
Court will address the alleged grounds for reconsideration in
turn, but first considers whether Plaintiff's motion is
improper and untimely.
Rule 60(b) and Local Rule 7(c)
seeks reconsideration of the Court's Ruling pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure. Rule
60(b) - by its very terms - applies only to final orders and
judgments. See Fed. R. Civ. P. 60(b); see also
Harris v. Millington, 613 Fed.Appx. 56, 58 (2d Cir.
2015). Plaintiff's claim pursuant to sections 31-51x and
31-51z of the Connecticut General Statutes (Count IV) remains
pending following the Court's grant of Defendant's
motion for partial summary judgment. As Defendant correctly
observes, final judgment has not entered, rendering Rule
60(b) is inapplicable here. Harris, 613 Fed.Appx. at
58; see also Floyd v. City of New York, 813
F.Supp.2d 457, 464 (S.D.N.Y. 2011) ("Because [the
summary judgment] decision did not fully adjudicate the
parties' claims, it was not appealable and thus not final
for the purposes of Rule 60(b). Therefore, plaintiffs'
motion for reconsideration cannot be properly brought under
... Rule 60(b)[.]" (footnotes and citations omitted)).
the Court declines Defendant's invitation to summarily
deny Plaintiff's motion on this ground, preferring
instead to consider the motion as brought pursuant to Local
Rule 7(c). See Harris, 613 Fed.Appx. at 58
(construing a motion improperly brought pursuant to Rule
60(b) as having been brought under the District Court's
Local Rule for reconsideration). See also Alston v.
Bellerose, No. 3:12-cv-00147, 2016 WL 554770, at *1 (D.
Conn. Feb. 11, 2016) (same), Floyd, 813 F.Supp.2d at
464 (same). The Court notes that "motions pursuant to
Rule 59(e), Rule 60(b), and Local Rule 7(c) for
reconsideration are treated under the same standard."
Levy v. World Wrestling Entm't, Inc., No.
3:08-cv-01289, 2009 WL 2382022, at *1 (D. Conn. July 31,
2009) (citing City of Hartford v. Chase, 942 F.2d
130, 2133 (2d Cir. 1991)). This brings the Court to
Defendant's second contention: that if considered
pursuant to Local Rule 7(c), the motion is untimely.
Rule 7(c) requires a motion for reconsideration to be filed
within seven days from the order from which relief is sought.
D. Conn. L. Civ. R. 7(c)(1). Plaintiff's motion was filed
fourteen days following the Court's June 28 Ruling, and
is therefore late. Plaintiff's counsel assumes blame for
the untimeliness of the motion, stating in reply that he
"erroneously relied upon the version of Local Rule 7 in
effect prior to 2017, which provided fourteen days to file a
motion to reconsider." Doc. 46 at 3. Indeed, the 2017
amendment to the Local Rules shortened the deadline for the
time to file a motion for reconsideration from fourteen days
to seven. See Solman v. Corl, No. 3:15-CV-1610, 2016
WL 6652443, at *1 (D. Conn. Nov. 10, 2016) ("Under this
court's Local Rule 7(a), '[m]otions for
Reconsideration shall be filed and served within fourteen
(14) days of the filing of the decision or order from which
relief is sought.'" (quoting D. Conn. L. Civ. R.
7(a))). Plaintiff advances a reasonable excuse for the
untimeliness of the motion, and preferring to decide these
issues on the merits, the Court will exercise its discretion
and address the motion. See Palmer v. Sena, 474
F.Supp.2d 353, 354 (D. Conn. 2007) ("A failure to timely
file a motion for reconsideration may constitute sufficient
grounds for denying the motion; however, courts have
exercised their discretion to address even untimely
motions." (citing Lopez, 375 F.Supp.2d at