United States District Court
Southern District of New York
JERRY PINKS,
individually and on behalf of others
similarly situated,
Plaintiffs,
-against-
M & T BANK CORP.,
Defendant.
No.: 1:13-cv-1730 – LAK-RLE
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANT’S “MOTION FOR RECONSIDERATION . . .” (Dkt. #103)
HERZFELD & RUBIN, P.C.
Daniel V. Gsovski (dg4413)
125 Broad Street
New York, New York 10004-1300
Telephone: (212) 471-8512
E-mail: dgsovski@herzfeld-
rubin.com
ATTORNEYS FOR PLAINTIFF
(additional counsel on signature
page)
October 24, 2014
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INTRODUCTION
Plaintiff Jerry Pinks (“Pinks”) opposes Defendant M&T Bank Corp.’s (“M&T’s”)
Motion for Reconsideration (DI 103, 104) of this Court’s Order (DI 98) denying M&T’s Motion
for Partial Judgment on the Pleadings. (DI 52, 53)
SUMMARY OF ARGUMENT
M&T styles its current Motion a “Motion for Reconsideration of September 30, 2015,
Order and/or Response to Plaintiff’s Objections to September 2, 2015, Report and
Recommendation.” (DI 103,104) Insofar as it responds to Plaintiff’s Objections to the
Magistrate Judge’s Report and Recommendation (“R&R” DI 89), M&T’s submission has been
mooted by this Court’s Order sustaining those objections. Thus, the only avenue open to M&T
at this point is a motion for reconsideration pursuant to Local Civil Rule 6.3 (“Rule 6.3”). This
matters little, however, as M&T’s filing is baseless from any perspective.
“A party seeking reconsideration may neither repeat ‘arguments already briefed,
considered and decided,’ nor ‘advance new facts, issues or arguments not previously presented to
the Court.’” Schoolcraft v. City of New York, 2015 WL 5542770, at *2 (S.D.N.Y. Sep. 18, 2015),
quoting Schonberger v. Serchuck, 742 F.Supp. 108, 119 (S.D.N.Y. 1990). A motion for
reconsideration is “not a vehicle for relitigating old issues…or otherwise taking ‘a second bite at
the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2nd Cir. 1998). The motion “should
not be granted where the moving party is solely attempting to litigate an issue that has already
been decided.” New York v. Parenteau, 382 F.Appx. 49, 50 (2nd Cir. 2010). As this Court has
ruled:
Reconsideration would be warranted only if the Court had overlooked controlling
or persuasive authority or misapprehended the facts. Movants’ memorandum
suggests neither. Movants simply disagree with the decision. That is the basis for
an appeal but not for reconsideration.
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Faulkner v. Nat’l Geographic Soc., 296 F.Supp.2d 488, 490 (S.D.N.Y. 2003). Cyrus v. City of
New York, 450 Fed.App. 24, 26 (2nd Cir. 2011) (“[Movant’s] arguments to the contrary amount
to a disagreement with the district court’s conclusions with respect to the case law that was
already before it, and accordingly the district court did not abuse its discretion in denying
reconsideration.”)
Here, M&T asserts the exact same arguments, relying almost entirely on case law cited
and argued before the Magistrate Judge. M&T’s proclamation that it “can meet the standard for
reconsideration” (DI 104 at 4), cannot be squared with its claim of nothing more than legal error
– “This Court’s ruling . . . is clearly erroneous as a matter of law and gives rise to a manifest
injustice.” (Id.) That, as this Court has held, is ground for appeal when and if appropriate, not for
reconsideration.
A reconsideration motion also requires the movant to “set forth concisely” any
“controlling decisions which counsel believes the Court has overlooked.” Rule 6.3. Yet M&T
completely fails either to identify any “controlling decisions which counsel believes the Court
has overlooked,” or to present any argument why it believes that would be the case. Nussbaum v.
Metro-North Commuter Railroad, 603 Fed.Appx. 10, 12-13 (2nd Cir. 2015) (“We review a
district court’s denial of a motion for reconsideration for abuse of discretion…In challenging the
denial of [her] motion for reconsideration, [movant] fails to point to any case law or other
relevant information that the district court overlooked.”)
APPLICABLE STANDARD UNDER LOCAL CIVIL RULE 6.3
The movant bears the burden under Rule 6.3 of “demonstrating” that “controlling”
authority was “overlooked” that “might reasonably be expected to alter the conclusion reached
by the court.” Anwar v. Fairfield Greenwich, Ltd., 745 F.Supp.2d 379, 382 (S.D.N.Y. 2010),
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citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2nd Cir. 1995). “[R]econsideration of a
court’s prior order under Local Rule 6.3 ‘is an extraordinary remedy to be employed sparingly in
the interests of finality and conservation of judicial resources.’” Schoolcraft v. City of New York,
2015 WL 5542770, at *1, quoting Ferring B.V. v. Allergan, Inc. 2013 WL 4082930, at *1
(S.D.N.Y. Aug. 7, 2013). Accordingly, the “standard of review applicable to such motions is
‘strict.’” Schoolcraft, id., quoting Shrader v. CSX Transp., Inc., 70 F.3d at 257.
ARGUMENT
I. M&T’S MOTION FOR RECONSIDERATION FAILS
A. M&T Fails to Meet the Standard for Relief Under Local Civil Rule 6.3 Because
its Memorandum is an Appeal, Not a Proper Request for Reconsideration.
M&T cites Anwar v. Fairfield Greenwich Ltd., 745 F.Supp2d at 382 to support its
assertion that “[r]econsideration is justified, by among other things, ‘the need to correct a clear
error or to prevent manifest injustice.’”1 (DI 104 at 4) This quote ignores the immediately
following language in Anwar, which applies directly to the present situation:
“The provision for reargument is not designed to allow wasteful repetition of
arguments already briefed, considered and decided. . . . A court must narrowly
construe and strictly apply Rule 6.3 so as to avoid duplicative rulings on
previously decided issues and to prevent Rule 6.3 from being used to advance
different theories not previously argued, or as a substitute for appealing a final
judgment.
Anwar v. Fairfield Greenwich, Ltd., 745 F.Supp2d at 382 (internal citations omitted). But that is
exactly what M&T’s Motion does. M&T’s “reconsideration” Motion rests entirely on arguments
previously submitted in support of M&T’s “dissent” from this Court’s interpretation and
1 The full quote from Anwar is: “The major grounds justifying reconsideration are ‘an
intervening change in controlling law, the availability of new evidence, or the need to correct a
clear error or prevent a manifest injustice.” Anwar, 745 F.Supp.2d at 382, quoting Virgin Atl.
Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2nd Cir. 1992).
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application of NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d
Cir. 2012).
Much of the overlap between the present Motion and its previous briefing is literal,
starting with the first argument heading in M&T’s Memorandum – “Plaintiff lacks Article III
standing to assert claims under the laws of any state other than South Carolina.” (DI 104 at 5-7)
This argument, in those exact words, first appeared as the heading at page 3 of its initial
Memorandum in Support of its Rule 12(c) Motion, filed approximately a year ago. (DI 53 at 3-8)
Unsurprisingly, M&T’s present argument includes citations to the same twenty-three decisions
previously relied on in that brief, no more and no less.
M&T also asserts that “Plaintiff previously has argued that even if the Court does not
apply the Second Circuit’s three-pronged standing test, a so-called ‘Rule 23 approach’ somehow
cures his lack of Article III standing to bring claims under the laws of states other than South
Carolina” under the heading “Plaintiff cannot use Federal Rule of Civil Procedure 23 to
Circumvent the Article III standing requirement.” (DI 104 at 14-15) This contention is a
substantive clone of its prior claims that “Plaintiff’s lack of Article III standing for non-South
Carolina claims cannot be cured through Plaintiff’s assertion of ‘class standing’” (DI 58 at 2-9),
and that “[t]he ‘Rule 23 approach’ has been rejected by the Second Circuit.” (Id. at 9-10) Of the
seven cases cited in support of this argument in this Memorandum (DI 104 at 14-15), six appear
in both the index of its Reply brief (DI 58 at ii-iii) and in its initial Brief (DI 53 at ii-iv.) The
seventh, In re Aggrenox, 2015 WL 1311352 (D. Conn. Mar. 23, 2015) cited for the first time in
the present Memorandum (DI 104 at 12, 15), was issued five months prior to the R&R, but never
called to the Magistrate Judge’s attention.
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Finally, in another section in its Memorandum M&T contends that “Plaintiff cannot
ignore the threshold Article III standing requirement as to each claim he asserts by alleging class
standing.” (DI 104 at 8-14) This section merely restates M&T’s previously argued interpretation
of NECA-IBEW and its progeny, an interpretation rejected in the challenged Order in which the
Court determined NECA-IBEW is controlling, and applied its two pronged test for class standing
to Mr. Pinks’ Complaint. (DI 98 at 2) However unhappy it may be with this Court’s reading of
NECA-IBEW in the Order, M&T can hardly claim that decision was “overlooked.”
B. M&T’s Memorandum Also Fails to “Set Forth Concisely” Any “Controlling Decisions
Which Counsel Believes the Court Has Overlooked” As Required by Local Civil Rule
6.3.
M&T asserts that after NECA-IBEW the district courts within the Second Circuit have
consistently rejected application of NECA-IBEW in multi-state class actions. (DI 104 at 10)
However, M&T never once claims that any of the four decisions it cites in support of this
proposition was “overlooked” by this Court. (DI 104 at 11-13)
Indeed, it would be difficult for M&T to credibly argue that at least one of these four
decisions, In re HSBC Bank, U.S.A., N.A., Debit Card Overdraft Fee Litig., 1 F. Supp.3d 34
(E.D.N.Y. 2014) (DI 104 at 11-12), has been “overlooked” by anyone after M&T has cited it in
at least eight prior filings. (DI 46 at 2; DI 53 at 4-5; DI 58 at 8-9; DI 69 at 4; DI 72 at 2; DI 77 at
4; DI 80 at 4; and, DI 99 at 2.) Mr. Pinks, for his part, met this argument once. E.g., DI 57 at 15.
Another decision, Okla. Police Pension & Ret. Sys. v. U.S. Bank Nat’l Ass’n, 986 F.Supp.2d 412
(S.D.N.Y. 2013) (DI 104 at 11), has been cited by M&T at least three times (DI 58 at 3; DI 69 at
4; DI 99 at 2), drawing a single rejoinder from Mr. Pinks in which he argued that when Judge
Koetl’s opinion was properly quoted to include the relevant footnote that M&T omitted, the case
supports Mr. Pinks’ position concerning multi-state class actions. (DI 66 at 4-5)
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Yet another, In re Aggrenox Antitrust Litig., 2015 WL 1311352 (D. Conn. Mar. 23, 2015)
(DI 104 at 12, 15), has been available to M&T since March 2015. E.g., Analytical Surveys, Inc.
v. Tonga Partners, L.P., Cannel Capital, LLC., 684 F.3d 36, 52 (2nd Cir. 2012) (In ruling that a
motion for reconsideration was properly denied, the Second Circuit noted “[d]efendants, though
communicating with the district court regarding other pending [relevant cases] in that period
[after briefing was closed but before the district court ruled], made no attempt to call the court’s
attention to Perseus before the district court ruled[.]”) A decision available for five months
before the Magistrate Judge ruled is not “overlooked” authority under Rule 6.3. E.g.,
Schoolcraft, 2015 WL 5542770, at *2, quoting Angelo Am. Ins. Group v. CalFed, Inc., 940
F.Supp. 554, 557 (S.D.N.Y. 1995) (“The burden is on the movant to demonstrate that the Court
overlooked controlling decisions or material facts that were before it on the original motion and
that might ‘materially have influenced its earlier decision.’”2
2 In any event, Aggrenox lends no persuasive support to M&T’s Rule 12(c) Motion.
Aggrenox, a district court decision, is not “controlling” or binding on this Court. Other district
courts have rejected Aggrenox’s Article III reasoning which is, we submit, in error. See, e.g., In
re Solodyn (Minocycline Hydrochloride) Antitrust Litg.¸2015 WL 5458570, at *14 (D. Mass.
Sep. 16, 2015). Moreover, no decision upon which the Aggrenox court relied supports its Article
III conclusion, or requires NECA-IBEW to be applied differently than in this Court’s Order.
Aggrenox first ruled (correctly) that the named plaintiffs had pled class standing under
NECA-IBEW with respect to out of state class claims. 2015 WL 1311352, at *19. It erred, we
submit, in ruling that they also had to establish Article III standing with respect to those class
claims, citing Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174 (1996); Davis v. Fed. Election
Comm’n, 554 U.S. 724, 734, 128 S.Ct. 2759 (2008); and Mahon v. Ticor Title Ins. Co., 683 F.3d
59, 64 (2nd Cir. 2012). Aggrenox derived this proposition from an aphorism in Lewis v. Casey
that “‘standing is not dispensed in gross.’” This ruling, however, runs squarely counter to the
Second Circuit’s conclusion that the relevant issue in Lewis v. Casey – as well as in the two other
decisions at issue, i.e., Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2364 (1982) and Gratz v.
Bollinger, 539 U.S. 244, 123 S.Ct. 2411 (2003) – was not Article III standing, but class standing.
NECA-IBEW, 693 F.3d at 160-161. Aggrenox also relied upon Davis v. Fed. Election Comm’n
for the proposition that “a plaintiff must demonstrate standing for each claim he seeks to press,”
while overlooking that Davis was not a class action. Finally, Aggrenox relied upon language in
Mahon that “with respect to each asserted claim, a plaintiff must always have suffered a distinct
and palpable injury to himself.” (emphasis original.) The named plaintiff in Mahon, however,
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The final decision in M&T’s proffered quartet of post-NECA-IBEW district court
decisions, Edwards v. North American Power & Gas, LLC., 2015 WL 4644597 (D. Conn. Aug.
14, 2015) (DI 104 at 13), like the others, is inherently not “controlling,” and, for good measure,
is not even germane. M&T cites Edwards in support of its claim that “courts within the Second
Circuit consistently have rejected Plaintiff’s theory [and by implication this Court’s decision]
that NECA[-IBEW] and Retirement Board [of the Policemen’s Annuity and Ben. Fund of the City
of Chicago v. BNYM, 775.3d 154 (2nd Cir. 2015)] stand for the proposition that a named plaintiff
should be permitted to pursue state law claims for which he lacks Article III standing on behalf
of a putative class so long as he alleges class standing.” (DI 104 at 10) Edwards, however,
does not mention NECA-IBEW, Retirement Board, the concept of class standing, or NECA-
IBEW’s two-pronged “same set of concerns” pleading test. M&T nowhere explains how a
decision which is completely silent on a conclusion reached in the challenged Order is somehow
“controlling” authority “that might reasonably be expected to alter the conclusion reached by the
court.” Anwar v Fairfield Greenwich, Ltd., 745 F.Supp.2d at 382.
In short, M&T never claims that any of the four decisions is “overlooked” authority, nor
could it in fact demonstrate that they were overlooked. None is “controlling,” and none would
“reasonably be expected to alter the conclusions” of this Court.
C. M&T’s Memorandum Fails to Provide Any Alternative Basis for Relief Under
Local Civil Rule 6.3.
M&T raises two alternative grounds for reconsideration. First, M&T maintains that
“[s]eparate and apart of Plaintiff’s lack of Article III standing,” this Court’s Order was wrongly
unlike Mr. Pinks and the named plaintiff in NECA-IBEW, lacked Article III standing with respect
to her individual claims, and therefore would not have met NECA-IBEW’s threshold Article III
burden, the prerequisite for any class standing inquiry. Mahon, 683 F.3d 59 at 61-62. NECA-
IBEW, 693 F.3d at 158.
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decided because Mr. Pinks “has no real interest in litigating claims under any other state’s laws.”
(DI 104 at 15-16) In support of this argument M&T relies solely upon Retirement Bd. v. NYMB,
775 F.3 at 163. (Id.)
But, as with other controlling authority, M&T does not contend that Retirement Board
was overlooked by this Court. Nor could it credibly do so, as each side requested and was
allowed to present supplemental briefing after Retirement Board came down while the Rule
12(c) Motion was pending, e.g., DI 66 at 1-6 and DI 69 at 1-3. M&T’s argument here is nothing
more than an argument that, in light of the Retirement Board court’s conclusions, this Court
erred in applying NECA-IBEW’s “same set of concerns” test.
This argument also fails under the reconsideration standard because it is new argument
that M&T raises for the first time in a motion for reconsideration. This Court has ruled that a
motion for reconsideration “‘may not advance new facts, issues or arguments not previously
presented to the court.’” Hogan-Cross v. Metropolitan Life Ins. Co., 586 F.Supp2d 410, 413
(S.D.N.Y. 2008), quoting Auscape Int’l v. Nat’l Geographic Soc’y, 2003 WL 22127011, at *1
(S.D.N.Y. Sep. 15, 2003); Anwar v. Fairfield Greenwich, Ltd., 745 F.Supp2d at 382 (same).
M&T never raised any alternative basis for its Rule 12(c) Motion. Instead, M&T’s
consistently took the position that it would not address the alternative issue of whether Mr. Pinks
had established the “same set of concerns” test for class standing at the pleading stage, expressly
reserving its right to contest class standing at class certification if its Rule 12(c) Motion failed:
M&T reserves the right to contest Plaintiff’s lack of ‘class standing’ in opposition
to any motion for certification. In filing its [Rule 12(c)] Motion, M&T had no
burden or obligation to argue or establish that Plaintiff also lacks class standing.
(DI 69 at 4 n.2) Consistent with this position M&T also argued: “Retirement Board, like
NECA[-IBEW], is irrelevant and inapplicable to M&T’s Motion.” (DI 69 at 1) “Those cases
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[Retirement Board and NECA-IBEW] did not address the issue raised by M&T’s Motion.” (Id. at
2) Therefore, M&T could not credibly claim that this is not new argument, after explicitly
electing not to join it as an alternative basis for Rule 12(c) relief, and all the while maintaining
that this now supposedly “controlling” decision was irrelevant.
As its second and final alternative argument M&T asserts that the R&R was correctly
decided because Mr. Pinks is trying “to use discovery as a sword to cure his failure to allege any
facts to support the assertion of a claim under any state’s law except South Carolina.” (DI 104 at
16) M&T argues that class discovery should be used only “to flesh out allegations for which
[plaintiffs] initially have at least a modicum of objective support.” (Id.)
This is meritless, as there is nothing to reconsider here. The Order did not address any
matters concerning the proper scope of class discovery and presumably, all discovery disputes
are left as they were under previous orders. M&T filed a Motion to Stay class discovery pending
its Rule 12(c) Motion over Mr. Pinks’ objection, (DI 75-77), which was granted. (DI 88) It was
M&T that insisted its Rule 12(c) Motion be heard first, before discovery was completed or
before Mr. Pinks’ Motion to Compel class discovery was decided. (R&R DI 89 at 1-2) Now that
its Rule 12(c) Motion has been decided adversely to it, it cannot claim as a basis for
reconsideration any prejudice from the exact discovery sequence – including a stay of class
discovery expiring upon this Court’s decision – which it successfully obtained. Therefore, both
of M&T’s alternative grounds for Rule 6.3 reconsideration relief fail.
CONCLUSION
Defendant M&T’s Motion for Reconsideration (DI 103) should be denied.
Dated: October 24, 2015 Respectfully Submitted,
HERZFELD & RUBIN, P.C.
By: /s/ Daniel V. Gsovski (dg4413)
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A Member of the Firm
125 Broad Street
New York, New York 10004-1300
Telephone: (212) 471-8512
E-mail: dgsovski@herzfeld-rubin.com
PHILIP FAIRBANKS, ESQ., P.C.
Philip Fairbanks, Esq.
1214 King Street
Beaufort, SC 29902
Telephone: (843) 521-1580
E-mail philip@lowcountrybankruptcy.com
ADMITTED PRO HAC VICI
LAW OFFICE OF FREDERICK CORLEY
Frederick M. Corley, Esq.
1214 King Street
Beaufort, SC 29902
Telephone: (843) 524-3232
E-mail: rcorley@islc.net
admitted pro hac vice
KATHY D. LINDSAY, P.A.
Kathy D. Lindsay, Esq.
1214 King Street
Beaufort, SC 29902
Telephone: (843) 521-1581
E-mail klindsay@islc.net
admitted pro hac vice
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