Goldberg v. UBS AG, Civil Action No. CV-08-375(DGT).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtThe term "international terrorism" is defined for purposes of the ATA in 18 U.S.C. § 2331(1
Citation690 F. Supp.2d 92
Decision Date05 March 2010
Docket NumberCivil Action No. CV-08-375(DGT).
PartiesKaren GOLDBERG, Chana Goldberg, Esther Goldberg, Yitzhak Goldberg, Shoshana Goldberg, Eliezer Goldberg, Yaakov Moshe Goldberg and Tzvi Yehoshua Goldberg, Plaintiffs, v. UBS AG, Defendant.
690 F.Supp.2d 92

Karen GOLDBERG, Chana Goldberg, Esther Goldberg, Yitzhak Goldberg, Shoshana Goldberg, Eliezer Goldberg, Yaakov Moshe Goldberg and Tzvi Yehoshua Goldberg, Plaintiffs,
v.
UBS AG, Defendant.

Civil Action No. CV-08-375(DGT).

United States District Court, E.D. New York.

March 5, 2010.


690 F. Supp.2d 94

Aaron Schlanger, Gary M. Osen, Joshua D. Glatter, Peter Raven-Hansen, Ari Ungar, Osen LLC, Oradell, NJ, Neil L. Glazer, Stephen H. Schwartz, Steven M. Steingard, Kohn Swift & Graf P.C., Philadelphia, PA, for Plaintiffs.

Daniel Lucas Cantor, Jonathan Rosenberg, O'Melveny & Myers LLP, Mark G. Hanchet, Mayer Brown LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER

TRAGER, District Judge:

Plaintiffs Karen Goldberg and her seven children, Chana Goldberg, Esther Goldberg, Yitzhak Goldberg, Shoshana Goldberg, Eliezer Goldberg, Yaakov Moshe Goldberg and Tzvi Yehoshua Goldberg, commenced this action against defendant bank UBS AG ("UBS") on January 28, 2008. Plaintiffs bring claims under the civil remedy provisions of the Anti-Terrorism Act ("ATA"), 18 U.S.C. § 2333(a)1 alleging that UBS is liable for: (1) aiding and abetting the murder or attempted murder of a United States citizen or causing the commission or attempted commission of physical violence upon United States Citizens in violation of 18 U.S.C. § 2332(a)-(c)2 and 18 U.S.C. § 2333(a); (2) committing acts of international terrorism in violation of 18 U.S.C. § 2339B(a)(1)3 and 18 U.S.C. § 2333(a); and (3) collecting and transmitting funds on behalf of a terrorist organization in violation of 18 U.S.C. § 2339C4 and 18 U.S.C. § 2332(a).

On November 3, 2008, defendant UBS moved to dismiss plaintiffs' Complaint on

690 F. Supp.2d 95

grounds of (1) lack of standing; (2) forum non conveniens; (3) unconstitutionality of the ATA5 as applied to UBS's conduct; and (4) failure to satisfy the pleading standards of Federal Rule of Civil Procedure 8. By Order dated September 24, 2009 ("the September 24th Order"), Judge Sifton6 granted defendant UBS AG's motion to dismiss the first count of plaintiffs' Complaint (aiding and abetting a violation of 18 U.S.C. § 2332)7, and denied the motion in all other respects.

Two motions are currently pending before this court. On October 8, 2009, defendant UBS moved for reconsideration of the portion of Judge Sifton's September 24, 2009 Order declining to dismiss plaintiffs' Complaint on forum non conveniens grounds. On October 21, 2009, defendants moved to certify the September 24th Order for interlocutory appeal. For the reasons set forth below, both motions are denied.

BACKGROUND

Familiarity with the factual background of this matter is presumed based on the record of proceedings before Judge Sifton. For a description of the facts of this case, see Goldberg v. UBS AG, 660 F.Supp.2d 410 (E.D.N.Y.2009).

DISCUSSION
(1)

Motion for Reconsideration

a. Standard for Reconsideration

Civil motions for reconsideration in this District are governed by the analogous standards imposed by Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3. U.S. v. James, No. 02 CV 0778, 2007 WL 914242, at *3 (E.D.N.Y. Mar. 21, 2007). "The standard for granting a motion for reconsideration is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked— matters, in other words, that might reasonably be expected to alter the conclusions reached by the court." Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995). Reconsideration is also appropriate

690 F. Supp.2d 96

if there is an intervening change of controlling law, new evidence or the need to correct a clear error or prevent manifest injustice. Doe v. New York City Dep't of Social Servs., 709 F.2d 782, 789 (2d Cir. 1983); Bay Casino, LLC v. M/V Royal Empress, No. 98-CV-2333 (SJ), 1998 WL 566772, at *1 (E.D.N.Y. Aug. 21, 1998).

Local Civil Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been fully considered. See Caleb & Co. v. E.I. Du Pont De Nemours & Co., 624 F.Supp. 747, 748 (S.D.N.Y.1985). In deciding a Local Rule 6.3 motion, courts will not allow a party to use the motion as a substitute for an appeal from a final judgment. See Morser v. A.T. & T. Info. Sys., 715 F.Supp. 516, 517 (S.D.N.Y.1989); Korwek v. Hunt, 649 F.Supp. 1547, 1548 (S.D.N.Y.1986). Accordingly, a party in its motion for reconsideration "may not advance new facts, issues or arguments not previously presented to the court." Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., No. 86-CV-6447 (JMC), 1989 WL 162315, at *3 (S.D.N.Y. Aug. 4, 1989).

b. Merits of Motion for Reconsideration

Defendant UBS seeks reconsideration of Judge Sifton's denial of defendant's motion to dismiss on forum non conveniens ("FNC") grounds in the September 24th Order. Defendant principally contends reconsideration is warranted because Judge Sifton "overlooked his own ability to eliminate distinctions between the ATA and Israeli law," and "could have conditioned FNC dismissal on UBS stipulating that, if liability were established, Plaintiffs would be entitled to prove and recover emotional and non-economic damages akin to an award for `loss of consortium' under U.S. law."8 Defendant's Motion for Reconsideration ("Def. Rec. Br.") at 2.

Defendant specifically challenges the conclusion in the September 24th Order that UBS had not met its burden of showing that the proposed alternate forum, Israel, offers a remedy which is "substantially the same" as the one available in the U.S.9

In the September 24th Order, Judge Sifton held that dismissal on FNC grounds was not warranted because there were at least two significant differences between the remedies available under Israeli and U.S. law: (1) while the ATA permits successful plaintiffs to recover treble damages plus the cost of bringing suit, including attorneys fees, Israeli law contains no provision for treble damages; and (2) Israel law lacks a mechanism by which plaintiffs could obtain compensation for their emotional or noneconomic injury.10 Id. at 9.

690 F. Supp.2d 98

Because defendant offered to enter into a stipulation trebling any compensatory damage award determined by an Israeli court, Judge Sifton concluded that defendant had mitigated any effect of the first of these two distinctions, but that the latter distinction precluded the grant of FNC dismissal. Id. Defendant now contends that Judge Sifton overlooked the possibility of conditioning FNC dismissal on defendant UBS's agreement to have an Israeli court determine and award damages for solatium or loss of consortium.11 Defendant's argument fails for three reasons.

First, by failing to timely raise such an argument during the briefing of its motion to dismiss, defendant waived its right to seek reconsideration on this point. The suggestion of conditioning FNC dismissal on defendant's stipulating to solatium or loss of consortium damages was raised nowhere in defendant's 85 pages of briefing on its motion to dismiss, or in the two declarations of its Israeli law expert, which contained 117 numbered paragraphs spanning 41 pages (excluding exhibits). It was also not mentioned in any communication to the court, including defendant's August 13, 2008 letter "to supplement" its motion to dismiss, and defendant does not allege that this option was raised with plaintiffs' counsel prior to the September 21, 2009 oral argument.12 Rather, defendant raised the possibility of stipulating to solatium or loss of consortium damages for the first time in the last moments of its rebuttal on oral argument.13

Because the possibility of a stipulation concerning nonpecuniary damages was not raised until this late point, defendant cannot raise it now. See Nobel Ins. Co. v. City of New York, No. 00-CV-1328 (KMK), 2006 WL 2848121, at *16 (S.D.N.Y. Sept. 29, 2006) (alteration in

690 F. Supp.2d 99

original) ("Normally, the Court will not consider arguments raised for the first time in a reply brief, let alone at or after oral argument."); see also Halpert Enters., Inc. v. Harrison, No. 07-1144-cv, ___ Fed. Appx. ___, ___, 2008 WL 4585466, at *3 (2d Cir. Oct. 15, 2008) ("Given defendant's failure to mention this argument in its papers, raising any such claim even explicitly at oral argument would have been to no avail." (citing In re Monster Worldwide, Inc. Sec. Litig., 251 F.R.D. 132, 137 (S.D.N.Y.2008) ("This argument was raised for the first time at oral argument and so was waived in terms of this motion."))). In the absence of such a rule, parties would have an incentive to withhold certain claims or defenses until the last moment, lying in wait to spring onto their opponents unanticipated arguments in reply briefs or in the final moments of oral argument. Such an outcome would not only be inefficient, but also manifestly unjust. Castro v. U.S., 540 U.S. 375, 386, 124 S.Ct. 786, 794, 157 L.Ed.2d 778 (2003) ("Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.").

Second, defendant has not pointed to any controlling law or evidence overlooked by Judge Sifton. On a motion for reconsideration, "the moving party must point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusions reached by the court." New York v. Gutierrez, 623 F.Supp.2d 301, 314 (E.D.N.Y.2009). Defendant does not point to a single case in which FNC was granted with any condition similar to the one they belatedly propose, much less cite a case in which the denial of FNC dismissal was found to be improper in similar circumstances. The sole basis of defendant's motion, that "the Court appears to have overlooked its own ability to eliminate distinctions between the ATA and Israeli law," is controverted...

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21 practice notes
  • Thorsen ex rel. Sons of Norway, Inc. v. Sons Norway, No. 13–CV–2572 (PKC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 14, 2014
    ...they raised it for the first time on reconsideration, the court properly refused to consider the [ ] argument [.]”); Goldberg v. UBS AG, 690 F.Supp.2d 92, 98 (E.D.N.Y.2010) (“[B]y failing to timely raise such an argument during the briefing of its motion to dismiss, defendant waived its rig......
  • United States v. Mostafa, No. 04 Cr. 356–1(KBF).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 22, 2013
    ...to the suit and whether those acts could be expected to or did produce an effect in the United States.” Id. (quoting Goldberg v. UBS AG, 690 F.Supp.2d 92, 106 (E.D.N.Y.2010)). It is also unnecessary that defendant had any expectation that he would be prosecuted in the United States. Al Kass......
  • Salveson v. JP Morgan Chase & Co., 14–CV–3529 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 24, 2016
    ...to avoid manifest injustice or (2) the issue is purely legal and there is no need for additional factfinding”); Goldberg v. UBS AG , 690 F.Supp.2d 92, 98 (E.D.N.Y.2010) ( “[B]y failing to timely raise such an argument during the briefing of its motion to dismiss, defendant waived its right ......
  • Linde v. Arab Bank, PLC, No. 04–cv–2799 BMCVVP1.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 8, 2015
    ...those courts that have held that a violation of 18 U.S.C. § 2339B is itself an act of international terrorism. See Goldberg v. UBS AG, 690 F.Supp.2d 92, 112–15 (E.D.N.Y.2010) (collecting cases); Strauss v. Credit Lyonnais, S.A., No. 06–cv–0702, 2006 WL 2862704, at *1 (E.D.N.Y. Oct. 5, 2006)......
  • Request a trial to view additional results
21 cases
  • Thorsen ex rel. Sons of Norway, Inc. v. Sons Norway, No. 13–CV–2572 (PKC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 14, 2014
    ...they raised it for the first time on reconsideration, the court properly refused to consider the [ ] argument [.]”); Goldberg v. UBS AG, 690 F.Supp.2d 92, 98 (E.D.N.Y.2010) (“[B]y failing to timely raise such an argument during the briefing of its motion to dismiss, defendant waived its rig......
  • United States v. Mostafa, No. 04 Cr. 356–1(KBF).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 22, 2013
    ...to the suit and whether those acts could be expected to or did produce an effect in the United States.” Id. (quoting Goldberg v. UBS AG, 690 F.Supp.2d 92, 106 (E.D.N.Y.2010)). It is also unnecessary that defendant had any expectation that he would be prosecuted in the United States. Al Kass......
  • Salveson v. JP Morgan Chase & Co., 14–CV–3529 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 24, 2016
    ...to avoid manifest injustice or (2) the issue is purely legal and there is no need for additional factfinding”); Goldberg v. UBS AG , 690 F.Supp.2d 92, 98 (E.D.N.Y.2010) ( “[B]y failing to timely raise such an argument during the briefing of its motion to dismiss, defendant waived its right ......
  • Linde v. Arab Bank, PLC, No. 04–cv–2799 BMCVVP1.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 8, 2015
    ...those courts that have held that a violation of 18 U.S.C. § 2339B is itself an act of international terrorism. See Goldberg v. UBS AG, 690 F.Supp.2d 92, 112–15 (E.D.N.Y.2010) (collecting cases); Strauss v. Credit Lyonnais, S.A., No. 06–cv–0702, 2006 WL 2862704, at *1 (E.D.N.Y. Oct. 5, 2006)......
  • Request a trial to view additional results

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