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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
Defendants, the City of New York and the New York City Department of Environmental Protection (collectively, the “City”), submit this memorandum of law in opposition to the motion of non—party Croton Watershed Clean Water Coalition, Inc., et al., (“CWCWC”) for reconsideration of its motion to intervenc in this action.MEMORANDUMPRELIMINARY STATEMENT
This action was brought by the United States and New York State seeking to compel the City to filter the Croton water supply. CWCWC moved to intervene as a defendant in this action. The Court denied the motion. CWCWC as well as the City of Yonkers and the
Town of Yorktown all sought to intervene for various reasons. All opposed the siting of a filtration plant in their constituents’ neighborhoods, Yonkers and Yorktown asserted interests in protecting their zoning laws, and CWCWC and Yonkers asserted interests in avoiding increases in water rates for their constituents who drink from the Croton water supply.
On May 20, 1998, subsequent to the Court’s denial of the three intervention motions, the United States, the State of New York, and the City lodged with the Court a proposed Consent Decree settling this action.
CWCWC now moves for reconsideration of the Court’s denial of its intervention motion. The motion for reconsideration does not purport to raise all the issues asserted by CWCWC in its previous motion, but only that its members who are rate payers have a sufficient interest to intervene in this action. That argument was raised and rejected by the Court on the previous motion. Nevertheless, CWCWC asserts that the Court overlooked “applicable precedent in the Second Circuit” that is inconsistent with one of the “principal cases relied upon by the Court.” See Intervenors’ Memorandum in Support of Their Motion for Reconsideration, at 2. CWCWC’s motion fails for many reasons.
First, CWCWC has not met the standard for reconsideration of the Court’s decision. The case which CWCWC dislikes was not a “principal” case relied on by the Court, and in tact was not relied on at all for the purpose CWCWC tries to claim. Rather it was cited in an introductory section for a very general proposition with which all Second Circuit cases cited by CWCWC agree. Moreover, none of the purportedly “overlooked” Second Circuit precedents are new to this proceeding. All of them were cited either in CWCWC’s own papers in support of its previous motion or by the Court itself. The fact that CWCWC thinks it can present those cases more effectively in a new motion, does not present a proper basis for, or a valid reason to grant, a motion to reconsider.
Second, even if CWCWC could meet the requirements for a motion to reconsider, its relormulated argument is no more compelling than its original one. The cases cited by CWCWC do not support the proposition that water rate payers have a sufficient interest to warrant intervention in this action. Rather, they are simply the same hodge-podge of intervention cases cited earlier, all of which are readily distinguishable from the facts of this case. Accordingly, CWCWC’s motion should be denied.
ARGUMENT
1. THE MOTION FOR RECONSIDERATION SHOULD BE DENIED
CWCWC has moved for reconsideration pursuant to Fed. R. Civ. P. 59 and Local Rule 6.3. It meets the criteria for neither. Reconsideration tinder Rule 591 is appropriate only where (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice See Atlantic States, 841 F. Supp. at 53. citing Larsen v. Ortega, 816 F. Supp. 97, 114 (D. Conn. 1992). “As one court remarked . . . ‘whatever may be the purpose of Rule 59(e) it should not be supposed that it is intended to give an unhappy litigant one
The City notes that Rule 59, on its face, provides for motions for new trials or for amendments of judgments. As there has been no trial and no judgment entered in this case, Rule 59 may not provide CWCWC any right to reconsideration. See Moodie v. Federal Reserve Bank of New York. 835 F. Supp. 751 (S.D.N.Y. 1993) (“The present motion is inappropriate under Rule 59 because the Bank’s earlier motion for summary judgment was denied, hence no judgment was entered on which the Bank could bring a motion to alter or amend.”); but see, Atlantic States Legal Foundation v. Karg Brothers. 841 F. Supp. 51 (N.D.N.Y. 1993) (reconsidering summary judgment motion). CWCWC simply moved to intervene in this action, and the motion was denied.
additional chance to sway the judge.”’ UA Theatre Circuit. Inc. v. Sun Plaza Enterprise Corp., 97 CV 4092. 1998 U.S. Dist. LEXIS 2844 at *3 (E.D.N.Y. January 30, 1998) (citation omitted). Here, as discussed below, CWCWC seeks nothing more than a chance to rehash old arguments and cases it has previously presented to the Court. “The Rule 59(e) motion may not be used to relitigate old matters, or raise new arguments or present evidence that could have been raised prior to the entry of judgment.” 11 Wright. Miller & Cooper, Federal Practice and Procedure § 2810.1, p. 127 (West Publishing 1995).
Local Rule 6.3. likewise limits the grounds for reconsideration. The rule provides: “There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.” While CWCWC has at least paid lip service to this standard, it has not met it. As this Court has stated:
As a general principle, a motion to reconsider will be granted only if the movant “present[s] ‘matters or controlling decisions the court overlooked that might materially have influenced its earlier decision.”’ Calfed. Inc. v. Anglo American Ins. Co., 940 F. Supp. 554, 556 (S.D.N.Y. l996)(quoting Morser v. AT&T Informational Systems, 715 F. Supp. 516, 517 (S.D.N.Y. 1989)). “Rule 3(j) [now Rule 6.3] is to be narrowly construed and strictly applied to avoid repetitive arguments on issues that have been considered fully by the court.” ld. (citing Ades v. Deloite & Touche, 843 F. Supp. 888, 892 (S.D.N.Y. 1992)). Thus, to persuade the court to reconsider its decision, it is not enough for a party to make a more convincing argument than was made the first time. “The law of the case will be disregarded only when the court has ‘a clear conviction of error’ with respect to a point of law on which its previous decision was predicated.” Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981), cert. denied, 459 U.S. 828, 103 5. Ct. 65, 74 L. Ed. 2d 66 (l982)(citations omitted).
X-Men Security, Inc. et al.. v. Pataki, 983 F. Supp. 101 (E.D.N.Y. 1997).
CWCWC claims reconsideration is appropriate because “the Court may have overlooked applicable precedent in the Second Circuit that is contrary to one of the principal cases relied upon by the Court, United States v. 36.96 Acres of Land, 745 F.2d 855, 859 (7th Cir. 1985).” See Intervenors’ Memorandum in Support of Their Motion for Reconsideration at 2. 36.96 Acres of Land, however, cannot by any means be described as “one of the principal cases relied upon by the Court.” The only reference to that case in the Court’s entire Memorandum and Order comes at the end of the section entitled “General Considerations.” The reference is a “see. citation for the proposition that the proposed intervenors must show “that they have a direct, substantial and legally protectable interest in this suit.” Memorandum and Order at 7. The Court goes on to address the various interests in this suit alleged by the three proposed intervenors and rejects them, without any reliance upon 36.96 Acres of Land.
Another fatal flaw in CWCWC’s argument regarding reconsideration is that Second Circuit precedent cited by CWCWC is not contrary to the proposition for which the Court cites 36.96 Acres of Land. As noted, the Court cites 36.96 Acres of Land for the basic proposition that an intervenor must show a direct, substantial and legally protectable interest in this suit. The only Second Circuit precedent raised by CWCWC in its current motion is NYPIRG v. Regents, 516 F.2d 350 (2d Cir. 1975). That case, however, merely held that the proposed intervenors “have an interest in the transaction which is the subject of the action” sufficient to support intervention. Id., at 351. It involved a group of pharmacists seeking to intervene in an action challenging the constitutionality of regulations governing pharmaceutical advertising. Nothing in NYPIRG suggests that the Second Circuit would not follow the simple proposition that intervenors must have a sufficient interest in the case at bar. Likewise, neither of the two district court cases CWCWC cites, Herdman v. Town of Angelica, 163 F.R.D. 180 (W.D.N.Y. 1995) and U.S. v. 27.09 Acres of Land, 737 F. Supp. 277 (S.D.N.Y. 1990), are in any way inconsistent with the proposition for which 36.96 Acres of Land was cited by the Court.
CWCWC argues that the interests of its rate payers are more like the interests of the NYPIRG. Herdman. and 27.09 Acres of Land intervenors than the 36.96 Acres of Land intervenors, or that the Second Circuit might find that the interests of the 36.96 Acres of Land intervenors are sufficient to warrant intervention. These arguments are irrelevant. The Court did not purport to apply the facts of 36.96 Acres of Land to CWCWC’s application. Rather, the Court started with the general proposition that CWCWC must show a sufficient interest in this case. The Court then assessed CWCWC’s motion with an analysis supported entirely by Second Circuit appellate and district court cases (with the exception of one Supreme Court and one First Circuit case). Although CWCWC’s argument is not supported by relevant caselaw (as shown below), CWCWC should not be allowed to shoehorn its way into a motion to reconsider by attacking its own inferences drawn from 36.96 Acres of Land which the Court did not draw or rely upon in its decision. The proposition for which the case was cited by the Court is entirely unassailable.
Finally, CWCWC has not shown that reconsideration is appropriate because its arguments are simply a rehash of its previous motion. All of the cases cited by CWCWC in its Memorandum in Support of Reconsideration have been presented to the Court. In fact, CWCWC cited NYPIRG in its Reply Memorandum of Points and Authorities (at p. 9) and cited Herdman in its initial Memorandum of Points and Authorities in support of its motion to intervene (at p. 5). Indeed, the Court itself discussed in its Memorandum and Order the other two cases cited by CWCWC (27.09 Acres of Land and Norwalk CORE v. Norwalk Bd. of Ed., 298 F. Supp. 208, 210 (D. Conn. 1968)). As discussed above, motions for reconsideration are not an opportunity for unhappy litigants to retool arguments already presented to the Court. A new presentation of already-cited cases is not grounds for reconsideration.
II. EVEN UPON RECONSIDERATION. TIlE COURT SHOULD ADHERE TO ITS PRIOR RULING
Whether or not CWCWC can meet the requirements for reconsideration of its motion, the new presentation of its arguments is no more persuasive than the old. As noted above. CWCWC’s motion is limited to whether its constituents who are water rate payers have a sufficient interest to support intervention as of right. CWCWC’s principal case in support of that proposition is NYPIRG v. Regents, discussed above. In that case, however, the intervenors were individual pharmacists and a pharmacist association who sought to intervene in an action which challenged the constitutionality of a regulation controlling advertising of prescription pharmaceuticals. The interest of the regulated entities in the constitutionality of regulations governing their field is apparent. CWCWC, however, is not in a similar position to the pharmacists in this action. It is the City and the Department of Environmental Protection, as suppliers of water, who are the regulated entities with an interest similar to the NYPIRG pharmacists. CWCWC’s ratepayer constituents are consumers of water -- a significant step removed from that interest.2
2 The analogy is complicated somewhat by the fact that the plaintiffs in NYPIRG were a consumer group making a challenge to state regulations. The issue, however, is not whether CWCWC could bring its own suit if it had a viable cause of action. Rather it is whether being a water consumer is a sufficient interest to permit intervention in an action brought by two governments seeking to enforce drinking water standards against a water supplier.
CWCWC argues (as it has in its previous motion papers) that the costs of water filtration will be passed on to the rate payers, thus making their interest sufficient. For this argument to succeed, the Court would have to abandon the very concept of civil litigation between interested parties. Under this theory, rate payers could intervene in an action by water bond holders seeking to enforce a default on water bonds because the judgment would be passed on to the rate payers. Under this theory, rate payers could intervene in a contract action between the City and a contractor on a water main project because the judgment would be passed on to the rate payers. Under this theory, rate payers could intervene in actions brought by the City to collect unpaid water bills because the failure to collect unpaid bills would result in higher costs to the other rate payers. Under this theory, any customer of any litigant could intervene in any litigation seeking money damages because the costs will be passed on to the consumers. Nothing in NYPIRG suggests such an expansive intervention standard.
The other cases cited by CWCWC are not even relevant to the issue of rate payer intervention, but are simply a renewal of other arguments previously made and rejected by the Court. Herdman v. Town of Angelica, 163 F.R.D. 180 (W.D.N.Y. 1995), involved the intervention of citizens who lived near a proposed solid waste ash monofill in an action brought by the monofill builder seeking to void a local law prohibiting construction of the monofill. This case is relevant only to the issue of the siting of a water filtration plant in CWCWC’s constituents’ neighborhoods. As the Court found in its Memorandum and Order, however, this action will not decide where any water treatment plant will be constructed. The Court’s conclusion is supported by the proposed Consent Decree lodged with the Court, which sets forth a schedule of milestones requiring the construction of a water treatment plant but does not specify where the plant will be sited. CWCWC’s interest in that regard is thus too speculative.
Moreover. CWCWC’s present motion purports to limit itself to rate payer interest in the litigation. None of the intervenors in Herdman had an interest similar to rate payers in this action.
U.S. v. 27.09 Acres of Land, 737 F. Supp. 277 (S.D.N.Y. 1990) is inapposite for the same reason. It involved the Town of Harrison’s intervention in an action to condemn a property for a Postal Service facility which implicated Harrison’s zoning laws. This case was relied on heavily by Yonkers and Yorktown in their motions to intervene, but has little relevance to any of CWCWC’s purported interests. It certainly does not support the notion that water rate payers have an interest sufficient to intervene in any action which might impose costs on the water supplier.
Finally, CWCWC argues that Norwalk CORE v. Norwalk Bd. of Ed., 298 F. Supp. 208, 210 (D. Conn. 1968), can be read to support CWCWC’s intervention motion instead of supporting its denial, as the Court concluded. Even ignoring the incredible suggestion that the Court “overlooked” a case that the Court discussed in its decision, Norwalk CORE stands for the exact proposition for which the Court cited it: where a proposed intervenor’s interests are aligned with a party’s interest, intervention is not warranted. CWCWC simply re-asserts that its rate payer constituents’ interests are not in fact aligned with the City’s because the parties to the action “support filtration” and CWCWC does not. This does not represent a different interest, but a different opinion about how that interest should be advanced. The City, like the rate payers. has a primary interest in maintaining the quality of the drinking water and avoiding unnecessary expenses. The fact that costs can be passed on to rate payers does not lessen the City’s interest in keeping the expense of operating the water supply as low as possible.
CONCLUSION
For the foregoing reasons, CWCWC’s motion to for reconsideration should be denied. or if reconsidered, the Court should adhere to its prior determination.
Dated: New York, New York
May 27, 1998
MICHAEL D. HESS
Corporation Counsel of the City of New York
100 Church Street, Rm. 3-173
New York, New York 10007
(212) 788-0730Steven Stein Cushman (SC 8083)
Assistant Corporation Counsel
William A. Walker
of Counsel.