Commercial Litigation and Arbitration

Rule 54(b) — Standard on Motion for Reconsideration

Federal Rule of Civil Procedure 54(b) provides a seemingly liberal standard allowing district courts to revisit non-final orders in their discretion. The Rule provides that:

[A]ny order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The Second Circuit, like other courts, has limited district courts’ reconsideration of earlier decisions under Rule 54(b) ‛by treating those decisions as law of the case, which gives a district court discretion to revisit earlier rulings in the same case, subject to the caveat that ‘where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.’“ Official Comm. of Unsecured Creditors v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003). The Second Circuit requires, as a rule, one of three tests to be satisfied: ‛‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice.'" Id.

Sometimes, not a lot may be required to satisfy this facially rather rigorous standard. In Alvarez v. QPI Multipress, Inc., 2007 U.S. Dist. LEXIS 48588 (N.D.N.Y. July 5, 2007), a products liability action, the Court had granted the defendant manufacturer’s motion for summary judgment. The plaintiff sought reconsideration asserting (i) the "availability of new evidence" and (ii) "the need to . . . prevent a manifest injustice" to support his motion for reconsideration — because, through a clerical oversight, one page of his expert’s affidavit had been omitted from the plaintiff’s opposition papers. Held, even though most of the points had been made elsewhere in plaintiff’s opposition papers, ‛in an abundance of caution and in order to prevent any manifest injustice that might result from the Court's failure to examine all of the relevant information,“ the Court granted the motion for reconsideration and reversed its grant of summary judgment in favor of the defendant manufacturer.

In the old days, we used to complain that court clerks would too rigorously review papers and reject them for what seemed to us to be substantive reasons (we preferred to have a judge, not a clerk, tell us we had inadequately stated grounds for a TRO). Rule 5(e) was amended in 1991 to address this issue by providing: "The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices." The old approach would at least have ensured that all the pages were present.

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