Opinion
14-cv-8016 (SAS)
10-07-2015
VISIÓN EN ANÁLISIS Y ESTRATEGIA, S.A. DE C.V., a Mexican Corporation, and CAPITALIZA-T, SOCIEDAD DE RESPONSABILIDAD LIMITADA DE CAPITAL VARIABLE, a Mexican Corporation, Plaintiffs, v. KARL ANDERSEN, KENNETH A. LANDGAARD, ARTHUR L. BOWEN, WILLIAM C. COYLE, RANDY W. BAGLEY, BROCK BAGLEY, DAVID MICKELSON INSURANCE SERVICES, ERWIN LEGAL, PC, CHRISTOPHER R. ERWIN, PW INSURANCE AGENCY CORP., LEON LOWENTHAL, and MEYER GERTNER, Defendants.
- Appearances - For Plaintiffs: Cory White, Esq. Maria C. Georgina Fabian, Esq. The International Business Law Group LLC 875 N. Michigan Ave. Suite 3100 Chicago, IL 60611 (773) 725-8856 John J. Muldoon, III, Esq. Muldoon & Muldoon, LLC 30 N. Lasalle Street, Suite 2950 Chicago, IL 60602 (312) 739-3550 For Defendants Karl Andersen, Kenneth A. Landgaard, PW Insurance Agency Corp., Leon Lowenthal, and Meyer Gertner: Ira S. Lipsius, Esq. Lipsius-Benhaim Law, LLP 80-02 Kew Gardens Road, Suite 1030 Kew Gardens, NY 11415 (212) 981-8440 For Defendants David Mickelson Insurance Services, Erwin Legal, P.C., Christopher Erwin: Anthony Galano, III, Esq. Jordan Danforth Wolff, Esq. Ellenoff Grossman & Schole, LLP 150 East 42nd Street, 11th Fl. New York, NY 10017 (212) 370-1300 Defendants (Pro Se): Brock Bagley 13114 Franklin Hall Trail Carmel, IN 46033 (317) 809-8984 Randy Bagley 3109 W 300 S Tipton, IN 46072 (317) 809-7450 Arthur L. Bowen 112 Water Street, Suite 201 Boston, MA 02109 William C. Coyle 7818 Winding Creek Drive Indianapolis, IN 46236 (317) 965-1627
MEMORANDUM OPINION AND ORDER SHIRA A. SCHEINDLIN, U.S.D.J. :
I. INTRODUCTION
This Court issued an Opinion and Order on July 24, 2015 (the "July 24 Order") granting defendants' motion to dismiss the Amended Complaint for failure to join Tranen Capital Alternative Investment Fund, Ltd. ("Tranen") and The Leo Group, LLC ("Leo") as necessary parties. On August 7, 2015, plaintiffs filed a motion for reconsideration of the July 24 Order under Local Rule 6.3, claiming that the Court overlooked controlling decisions and factual matters that should preclude a finding that Tranen and Leo were necessary and indispensable parties. For the reasons set forth below, plaintiffs' motion is denied.
See Vision en Analisis y Estrategia, S.A. de C. V. v. Andersen,No. 14 Civ 8016, 2015 WL 4510772 (S.D.N.Y. July 24, 2015).
See Memorandum of Law in Support of Plaintiffs' Motion for Reconsideration ("Pl. Mem.").
II. MOTION FOR RECONSIDERATION STANDARD
The standard for granting a motion for reconsideration is strict. "'[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.'" "Reconsideration of a court's previous order is an 'extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'" Typical grounds for reconsideration include "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice."
Analytical Surveys, Inc. v. Tonga Partners, L.P, 684 F.3d 36, 52 (2d Cir. 2012) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Oji v. Yonkers Police Dep't, No. 12 Civ. 8125, 2013 WL 4935588, at *1 (S.D.N.Y. Sept. 11, 2013) (quoting Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003)).
Virgin Atl. Airways, Ltd. v. National Mediation Bd, 956 F.2d 1245, 1255 (2d Cir. 1992) (quotation omitted). See also Shrader, 70 F.3d at 257 (describing grounds for reconsideration as "matters, in other words, that might reasonably be expected to alter the conclusion reached by the court").
III. DISCUSSION
Plaintiffs have failed to meet this strict standard, raising no new or overlooked facts, intervening changes in law, or clear errors creating the possibility of manifest injustice. Instead, plaintiffs' motion for reconsideration simply reargues points that I considered and rejected in my July 24 Order.
Plaintiffs argue that the Court improperly failed to consider each claim of the Amended Complaint independently. This is incorrect. As I made clear in my July 24 Order, Tranen and Leo are directly implicated throughout plaintiffs' Amended Complaint. Each claim in the Amended Complaint, including those claims that do not involve the participation of Tranen and Leo's officers and directors, relates to the same sequence of transactions in which Tranen and Leo were both intimately involved. Proceeding with any of the claims in this case would require this Court to make significant and potentially adverse findings with respect to these transactions. A judgment in this case would therefore unavoidably prejudice Tranen and Leo as absent parties. Tranen and Leo's actions are simply too interwoven throughout the Amended Complaint to dismiss only those counts directly implicating the behavior of their officers and directors; the two parties are indispensable as to all claims.
Plaintiffs also assert the Court "misconstrued the overall procedural stage of these proceedings" in determining plaintiffs would not be prejudiced by dismissal as discovery had not yet started and a judgment on the merits was not imminent. Plaintiffs point to various filings, motions, and communications between the two parties that they argue demonstrate significant progress over ten months of litigation, in turn demonstrating that this case can and should proceed without Tranen and Leo. None of these events, however, change the fact that the action has yet to proceed beyond the pleadings phase, and each of these events was considered by this Court when determining that a dismissal would not unfairly prejudice the plaintiffs.
Pl. Mem. at 11.
See id. at 6.
Plaintiffs further argue that "to the extent this Court concludes that Tranen's good name or good will creates an interest in this litigation," the fact that Tranen is in liquidation proceedings vitiates any interest it has in said good name or good will. I need not consider the merits of this argument, however, as I never considered the potential impact of this litigation on Tranen's good name or good will.
Id. at 8. --------
Finally, plaintiffs' argument that the Court committed clear error in failing to determine that Leo could feasibly be joined is without merit. As I explained in my July 24 Order, Tranen's undisputed alien citizenship alone is sufficient to defeat diversity in this action, requiring the Court to determine whether Tranen is a necessary and indispensable party.
IV. CONCLUSION
For the foregoing reasons, plaintiffs' motion for reconsideration is DENIED. The Clerk of the Court is directed to close this motion [Docket No. 100].
SO ORDERED :
/s/_________
Shira A. Scheindlin
U.S.D.J.
Dated: New York, New York
October 7, 2015
- Appearances -
For Plaintiffs: Cory White, Esq. Maria C. Georgina Fabian, Esq. The International Business Law Group LLC 875 N. Michigan Ave. Suite 3100 Chicago, IL 60611 (773) 725-8856 John J. Muldoon, III, Esq. Muldoon & Muldoon, LLC 30 N. Lasalle Street, Suite 2950 Chicago, IL 60602 (312) 739-3550 For Defendants Karl Andersen, Kenneth A. Landgaard, PW Insurance Agency Corp., Leon Lowenthal, and Meyer Gertner: Ira S. Lipsius, Esq. Lipsius-Benhaim Law, LLP 80-02 Kew Gardens Road, Suite 1030 Kew Gardens, NY 11415 (212) 981-8440 For Defendants David Mickelson Insurance Services, Erwin Legal, P.C., Christopher Erwin: Anthony Galano, III, Esq. Jordan Danforth Wolff, Esq. Ellenoff Grossman & Schole, LLP 150 East 42nd Street, 11th Fl. New York, NY 10017 (212) 370-1300 7 Defendants (Pro Se): Brock Bagley 13114 Franklin Hall Trail Carmel, IN 46033 (317) 809-8984 Randy Bagley 3109 W 300 S Tipton, IN 46072 (317) 809-7450 Arthur L. Bowen 112 Water Street, Suite 201 Boston, MA 02109 William C. Coyle 7818 Winding Creek Drive Indianapolis, IN 46236 (317) 965-1627