EPA opposition to reconsideration

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CV 97-2154 (GERSHON, J)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X
UNITED STATES OF AMERICA,
                                                                             Plaintiff,
STATE OF NEW YORK and BARBARA DEBUONO, M.D.,
as COMMISSIONER of the NEW YORK STATE
DEPARTMENT OF HEALTH
                                                               Plaintiff-Intervenors,
                                   - against -
CITY OF NEW YORK and NEW YORK CITY
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
                                                                            Defendants,
CROTON WATERSHED CLEAN WATER
COALITION, INC.; et al,
                                                             Defendants-Intervenors, --------------------------------------------------------------------------X

MEMORANDUM

Preliminary Statement

The Croton Watershed Clean Water Coalition, Inc., et al. (CWCWC), has moved for reconsideration of this Court's decision denying its motion for intervention in this action. Relying incorrectly on both Rule 59(e) of the Federal Rules of Civil Procedure and Local Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, CWCWC argues that its members' roles as water rate payers created a sufficient interest to allow them to intervene as of right. In an effort to fit within the parameters of Local Rule 6.3, CWCWC also incorrectly argues that this Court has overlooked applicable precedent in the Second Circuit.

CWCWC fails to meet the standards of both Rule 59(e) and Local Rule 6.3. As discussed in the Memorandum of Law in Opposition to the Motion for Reconsideration submitted by the defendants City of New York and New York City Department of Environmental Protection (the City's memorandum), the cases cited by CWCWC, all were before this Court on the original motions.

Local Civil Rule 6.3 provides for reconsideration of a motion involving "matters or controlling decision which counsel believes the court has overlooked)" CWCWC, in its motion for reconsideration, does not cite to any change in controlling law or submit any new evidence to the Court that was not available earlier. Rather, CWCWC rehashes exactly the same arguments presented earlier to the Court. As a result, CWCWC's motion for reconsideration should be denied.

ARGUMENT

I. THE MOTION FOR RECONSIDERATION SHOULD BE DENIED
In order to meet the standard for granting a motion under Rule 59 (e), a party must demonstrate manifest errors of fact, manifest errors of law or newly discovered evidence. Air Espana v. O'Brien, 1997 WL 803756 (E.D.N.Y. 1997) (Glasser, J.) (citing Agola v. Hagner, 678 F. Supp. 988, 991 (E.D.N.Y. 1987)). Local Civil Rule 6.3 provides for reconsideration of a motion involving "matters or controlling decisions which counsel believes the court has overlooked." "The standard for granting a motion for reargument is strict in order to dissuade repetitive arguments on issues that have already been considered fully by the court." Caleb & Co. v. E.I. DuPont De Nemours & Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). To be entitled to reconsideration of this Court's decision CWCWC must demonstrate either: (1) that there has been an intervening change of the controlling law; (2) that there is new evidence which bears upon the issues decided that was not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice. Oxford House. Inc. v. City of Albany, 155 F.R.D. 409, 410 (N.D.N.Y. 1994).

Courts have repeatedly held that motions for reconsideration "are not vehicles for bringing before the court theories or arguments that were not advanced earlier. Nor may the motion present evidence which was available but not offered at the original [motion]." Natural Resources Defense Council. Inc. v. United States Environmental Protection Agency, 705 F. Supp. 698, vacated on other grounds, 707 F. Supp. 3 (D.D.C. 1989). Similarly, "[t]he proponent of such a motion [for reargument] is not supposed to treat the court's initial decision as the opening of a dialogue in which the party may then use Rule 3(j) [now Local Rule 6.3] to advance new facts and theories in response to the court's rulings." Patterson--Priori v. Unum Life Insurance Co. of America, 846 F. Supp. 1102, 1108 (E.D.N.Y. 1994) (Glasser, J.).

It is neither the intention nor the purpose of a motion for reconsideration to permit the parties to "relitigate old matters" or "take a second bite at the apple," Project Strategies Corp. v. National Communication Corp., 1997 WL 67517 (E.D.N.Y. January 31, 1997) (Glasser, J.). Yet this is exactly what CWCWC attempts to do in the present motion. CWCWC's entire memorandum in support of reconsideration is a restatement of its, the City of Yonkers's and the Town of Yorktown's earlier arguments in support of their motions for intervention on this issue of their status as ratepayers.

CWCWC cites to three cases in support of its claim that the Court did not follow applicable precedent in this Circuit: NYPIRG v. Regents, 516 F.2d 350 (2d Cir. 1975); Herdman v. Town of Angelica, 163 F.R.D. 180 (W.D.N.Y. 1995) and United States v. 27.09 Acres of Land, 737 F. Supp. 277 (S.D.N.Y. 1990). First, as more fully discussed in the City's memorandum, none of these cases mandates or even remotely supports reconsideration of CWCWC's motion for intervention. Even more devastating to CWCWC's motion for reconsideration, however, with the exception of NYPIRG, which is wholly inapposite, the Court, in its Memorandum and Order, specifically cites each of the decisions relied upon by CWCWC in support of its motion for reconsideration. Thus, it can hardly be said that the Court "overlooked" these authorities. Even if the Court had overlooked these decisions, which it did not, the authorities cited are not applicable precedent which would alter the Court's decision.

CONCLUSION

For the reasons set forth above, the motion for reconsideration should be denied.
Dated: Brooklyn, New York May 28, 1998
Respectfully submitted,
LOIS J. SCHIFFER
Assistant Attorney General
ZACHARY W. CARTER
United States Attorney
By::
DEBORAH B. ZWANY (DB 7987)
Assistant U.S. Attorney
JOEL M. GROSS
KAREN DWORKIN
ELIZABETH YU
(718) 254--6010
Environmental Enforcement
Section

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