Behrens v. JPMorgan Chase Bank

• Decision Date: 09 September 2021
• Docket Number: 16-cv-5508 (VSB)
• Parties: BRUCE BEHRENS, et al., Plaintiffs, v. JPMORGAN CHASE BANK N.A., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

BRUCE BEHRENS, et al., Plaintiffs, v. JPMORGAN CHASE BANK N.A., et al., Defendants.

No. 16-cv-5508 (VSB)

United States District Court, S.D. New York

September 9, 2021

Susan J. Levy

Susan J. Levy, Esq.

Counsel for Plaintiffs

Eric R. Sherman

Dorsey & Whitney LLP

Dai Wai Chin Feman

Dorsey & Whitney LLP

Counsel for Defendant U.S. Bank National Association

Christopher J. Houpt

Lisa R. Blank

Victoria Whitney

Mayer Brown LLP

Thomas S. Kiriakos

Sean T. Scott

Tyler R. Ferguson

Mayer Brown LLP

Counsel for Defendant JPMorgan Chase Bank, N.A.

Abby F. Rudzin

O'Melveny & Myers LLP

Counsel for Defendants Chicago Mercantile Exchange Inc., and CME Group Inc.

Julie Negovan

Grieising Law, LLC

Counsel for Defendants Perry Comeau and Russell Wasendorf, Jr.

Lisa L. Shrewsberry

Traub Lieberman Straus & Shrewsberry LLP

Counsel for Defendant Paul Thomas

Gregory Boyle

Kevin Murphy

Jenner & Block LLP

Adam Unikowsky

Jenner & Block LLP

Counsel for Defendant National Futures Association

Nicholas A. Caputo

Caputo & Popovic, P.C.

Louis V. Fasulo

Fasulo, Braverman & DiMaggio LLP

Counsel for Defendant Millennium Trust Company, LLC

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge.

On March 31, 2019, I issued an Opinion and Order in which, among other things, I dismissed the SAC^[1] against the MTD Defendants on the grounds that “Plaintiffs' federal claims . . . are time-barred, ” which I found left me without sound reason to exercise supplemental jurisdiction “over Plaintiffs' state law claims.” Behrens v. JPMorgan Chase Bank N.A., No. 16-cv-5508 (VSB), 2019 WL 1437019, at *3 (S.D.N.Y. Mar. 31, 2019) (the “March '19 Opinion”). Now before me are Plaintiffs' motion for reconsideration, (Doc. 241), and various Defendants' (whom I will call the “Reconsideration Defendants”)^[2] cross-motions for reconsideration of portions of the March '19 Opinion. For the reasons that follow, all motions for reconsideration are DENIED.

I. Legal Standard

“Motions for reconsideration are governed principally by Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3, which are meant to ‘ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'” In re Gen. (JMF), 2021 WL 1700318, at *1 (S.D.N.Y. Apr. 29, 2021) (quoting Medisim Ltd. v. BestMed LLC, No. 10-CV-2463 (SAS), 2012 WL 1450420, at *1 (S.D.N.Y. Apr. 23, 2012)). “Generally, a party seeking reconsideration must show either ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'” Phx. Light SF Ltd. v. U.S. Bank Nat'l Ass'n, 14-CV-10116 (VSB), 2020 WL 4699043, at *1 (S.D.N.Y. Aug. 12, 2020) (quoting In re Beacon Assocs. Litig., 818 F.Supp.2d 697, 701-02 (S.D.N.Y. 2011)). A motion for reconsideration “is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple'. . . .” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)); Polsby v. St. Martin's Press, Inc., No. 97 Civ. 690(MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (“[A] party may not advance new facts, issues or arguments not previously presented to the Court.”) (internal quotation marks omitted). “Rather, ‘the standard for granting [the motion] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.'” Analytical Surveys, 684 F.3d at 52 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Where the motion “merely offers substantially the same arguments . . . offered on the original motion or attempts to advance new facts, the motion for reconsideration must be denied.” Silverman v. Miranda, 06 Civ. 13222 (ER), 2017 WL 1434411, at *1 (S.D.N.Y. Apr. 10, 2017) (internal quotation marks omitted). The decision of whether to grant or deny a motion for reconsideration is “within ‘the sound discretion of the district court.'” Premium Sports Inc. v. Connell, No. 10 Civ. 3753(KBF), 2012 WL 2878085, at *1 (S.D.N.Y. July 11, 2012) (quoting Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009)).

II. Discussion

Plaintiffs argue that I should reconsider my prior finding that their federal claims were untimely. The Reconsideration Defendants argue that I should reconsider my prior dismissal of the state law claims asserted against them for lack of supplemental subject matter jurisdiction. They say that I had original jurisdiction over these claims under the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”), (Doc. 249, at 8), even though they concede that no party “previously discussed” “CAFA jurisdiction, ” (Doc. 262, at 2). Using their motion for reconsideration as the vehicle, they seek to have me assert jurisdiction over these claims, dismiss them on the merits for being untimely, and issue a final judgment in favor of the Reconsideration Defendants pursuant to Rule 54(b). (Id. at 12).

I address the motions of the parties in turn.

A. Plaintiffs' Reconsideration Motion^[3]

First, Plaintiffs argue that their “RICO claim” should be deemed not to have accrued “until at least July 14, 2012, ” or at minimum that this claim was timely given how time is counted under Federal Rule of Civil Procedure 6. (Doc. 241-1, at 6-8.) Specifically, Plaintiffs' claim that I held “that the RICO claim accrued no later than July 10, 2012” and request that my purported holding “should be reconsidered and changed until at least July 14, 2012 because of the fact that the earliest possible time in which constructive knowledge of the claim could have arisen appears to be on or about July 13, 2012, when the Wasendorf suicide note was first published or its contents reported.” (Id. at 6.) Plaintiffs ignore what I actually held. The March '19 Opinion held that the RICO claim's limitations period “began to run at the earliest in October 2008, ” on the grounds that by then, “Plaintiffs knew that they had lost their money, ” and it further found that “by 2009, Plaintiffs were claiming that Peregrine's fraud was to blame for that loss” and had hired an attorney to aid them in their pursuit of relief from that alleged fraud.^[4]2019 WL 1437019, at *5-6. See also Levy v. BASF Metals Ltd., 917 F.3d 106, 108 (2d Cir. 2019) (“The relevant inquiry, however, is not whether Levy had discovered the identity of the defendants or whether she had discovered the manipulation scheme she alleges in her complaint. Rather, the question is when Levy discovered her CEA injury-that is, a loss that was the result of a CEA violation.”), cert. denied, 140 S.Ct. 536 (2019). Plaintiffs do not direct me to any “controlling decisions or data that [I] overlooked, ” Analytical Surveys, Inc., 684 F.3d at 52 (internal quotation marks omitted), that would cause me to reconsider my decision that their claim accrued in 2008, or at minimum, by 2009 when they were pursuing a legal remedy for what they believed to be fraudulent misconduct that purportedly harmed them.

Perhaps Plaintiffs' strongest argument for reconsideration is their averment that “[e]ven assuming that the claim accrued in 2008, . . . Plaintiffs were well within their rights under the Inquiry Notice Rule” “since they could not be expected to have done more than what their then-lawyer . . . suggested and advised.” (Doc. 241-1, at 10.) “However, this is not an inquiry notice case.” See Levy, 917 F.3d at 109. As I already held, Plaintiffs had “actual notice” of their injuries. March '19 Opinion, 2019 WL 1437019, at *5. Plaintiffs' argument is also not made within the boundaries of the motion for reconsideration standard. Plaintiffs do not identify any “controlling decisions, ” Analytical Surveys, 684 F.3d at 52 (internal quotation marks omitted), where reliance on one's attorney alone rises to the “extraordinary circumstance[]” warranting equitable tolling, Deskovic v. Mann, 210 F.3d 354 (2d Cir. 2000) (“Attorneys' failure to comply with statutes of limitations due to their own neglect is no basis for equitable tolling.”). Further, Plaintiffs do not explain sufficiently what they mean when they state they “could not be expected to have done more” to timely file their claims, which leaves me unable to find that there is a “clear error” appropriate for correction under the “strict” standard governing their motion for reconsideration. Phx. Light, 2020 WL 4699043, at *1 (internal quotation marks omitted). And, even if it were appropriate for me to construe Plaintiffs' argument liberally at this late stage- which it is not, see Analytical Surveys, 684 F.3d at 52-I would still maintain my prior holding that Plaintiffs did not sufficiently plead facts to warrant equitable tolling, see March '19 Opinion, 2019 WL 1437019, at *7-8. Not only did Plaintiffs fail to plead in the SAC-or bring to my attention now-“any steps they took to determine whether they had a claim . . . during the limitations period, ” id. at *8, they have never identified what period of time should be equitably tolled due to “what their then lawyer” advised them. The Second Circuit “has repeatedly stated that a party seeking equitable tolling must show diligent pursuit of his claim throughout the period he seeks to toll.” Harper v. Ercole, 648 F.3d 132, 139 (2d Cir. 2011) (internal quotation marks omitted) (collecting cases). This at minimum requires me to know “the period” sought to be tolled. See id.

Plaintiffs' remaining argument is that I should have applied the...