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Cope v. Wal-Mart Stores East, LP

United States District Court, D. Connecticut

October 11, 2017

SPYROS COPE, Plaintiff,
v.
WAL-MART STORES EAST, LP, Defendant.

          RULING ON PLAINTIFF'S MOTION FOR RECONSIDERATION

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff 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).[1] 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.[2] 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.

         I. STANDARD FOR RECONSIDERATION

         The 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. 7(c)(1).

         It is 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).

         II. DISCUSSION

         Plaintiff 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 for reconsideration.

         The Court will address the alleged grounds for reconsideration in turn, but first considers whether Plaintiff's motion is improper and untimely.

         A. Rule 60(b) and Local Rule 7(c)

         Plaintiff 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)).

         However, 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.

         Local 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 21-2)).

         B. Reconsideration Motion

         1. ...


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