Morse/Diesel, Inc. v. Fid. & Deposit Co. of Maryland
Decision Date | 23 July 1991 |
Docket Number | No. 86 Civ. 1494 (PKL).,86 Civ. 1494 (PKL). |
Parties | MORSE/DIESEL, INC., Plaintiff and Counterclaim Defendant, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant, Third-Party Plaintiff and Counterclaimant, v. T. FREDERICK JACKSON, INC., Third-Party Defendant, and Times Square Hotel Company and Marriott Corporation, Additional Defendants on Counterclaims. |
Court | U.S. District Court — Southern District of New York |
Peter N. Wang, Friedman, Wang & Bleiberg, P.C., New York City, for Morse/Diesel, Inc., Times Square Hotel Co. and Marriott Corp. Ian A.L. Strogatz, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., for Fidelity and Deposit Co. of Maryland.
This diversity action is brought by plaintiff for damages resulting from an alleged overpayment to its subcontractor in connection with the Marriott Marquis Hotel project. Plaintiff Morse/Diesel, Inc. ("Morse/Diesel"), alleges, in addition to its breach of contract claim, fraud and breach of the covenant of good faith and fair dealing.
Defendant Fidelity and Deposit Company of Maryland ("F & D") asserted counterclaims of fraud and bad faith breach against plaintiff and additional counterclaim defendants, Times Square Hotel Company ("Times Square") and Marriott Corporation ("Marriott"). By order and opinion dated May 3, 1991, (the "Opinion"),1 this Court granted the motion of Morse/Diesel, Times Square and Marriott (collectively, the "counterclaim defendants") to dismiss with prejudice F & D's counterclaims, and to strike F & D's ninth affirmative defense. The court denied the counterclaim defendants' motion for sanctions, as well as F & D's cross-motions for bifurcation of plaintiff's claims and for a stay of discovery proceedings.
Defendant's Notice of Motion at 1-2.
Familiarity with the factual background of this action is assumed, based on the Court's prior Opinion.
The standards governing motions for reargument are clear. "`The only proper ground on which a party may move to reargue an unambiguous order is that the court overlooked "matters or controlling decisions" which, had they been considered, might reasonably have altered the result reached by the court.'" Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y.1990) (Leisure, J.) (quoting Adams v. United States, 686 F.Supp. 417, 418 (S.D.N.Y.1988) (quoting Local Civil Rule 3(j))); see also Moll v. U.S. Life Title Ins. Co., 700 F.Supp. 1284, 1286 (S.D.N.Y.1988) (Leisure, J.); Bozsi Ltd. Partnership v. Lynott, 676 F.Supp. 505, 509 (S.D.N.Y.1987).
As this Court has previously held, Schonberger, supra, 742 F.Supp. at 119; see also Ruiz v. Commissioner of Dep't of Transp., 687 F.Supp. 888, 890 (S.D.N.Y.), aff'd, 858 F.2d 898 (2d Cir.1988) (). Additionally, a party making a motion for reargument may not, under Local Rule 3(j), advance new facts, issues or arguments not previously presented to the Court. See Weissman v. Fruchtman, 124 F.R.D. 559, 560 (S.D.N.Y.1989) (Leisure, J.); Ruiz, supra; Morgan Guar. Trust Co. v. Garrett Corp., 625 F.Supp. 752, 756 (S.D.N.Y.1986).
In dismissing F & D's counterclaims for fraudulent inducement and breach of the covenant of good faith and fair dealing, as well as its ninth affirmative defense based on fraud, the Court found that all of these claims arose from the same basic fraud claim. The Court also based its dismissal of the bad faith breach counterclaim on a finding of a lack of a duty of good faith and fair dealing running from the obligee of a bond, in this case, Morse/Diesel, to F & D, the surety on the bond.
The Court dismissed this counterclaim and the ninth affirmative defense because of an admission in F & D's answer that "Morse/Diesel believed ... that the subcontractor's cost to complete its Subcontract would exceed the Subcontract price." Answer ¶ 30.
While F & D does not seek reargument of this ruling, it seeks leave to replead its counterclaims on the basis of Morse/Diesel's failure to disclose its reliance on F & D's representation, rather than a misrepresentation on the part of Morse/Diesel. This point was raised, without supporting authority, in a few sentences of F & D's forty-seven page brief in response to...
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