Bank of New York Mellon v. Bell et al

Filing 105

ORDER granting 87 MOTION for Reconsideration re 71 Order, 70 Scheduling Order Determining Case No Longer Stayed by Jonathan Bell, Sonja Bell. The Court adheres to its decision to deny a stay. Signed by Judge Warren W. Eginton on 9/19/13. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BANK OF NEW YORK MELLON
as Trustee for BS ALT A 2005-9,
Plaintiff,
v.
SONJA BELL and JONATHAN BELL,
Defendants.

:
:
:
:
:
:
:
:

3:11-cv-01255-WWE

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION FOR
RECONSIDERATION
Defendants Sonja and Jonathan Bell have moved for reconsideration of the Court’s
decision to deny them a stay pursuant to Rule 41(d). For the following reasons, defendants’
motion for reconsideration will be granted, but the Court adheres to its decision to deny a stay.
BACKGROUND
Plaintiff Bank of New York Mellon brought this foreclosure action against defendants
after voluntarily dismissing a related state court action.
On March 11, 2012, defendants filed a joint motion to stay the instant case pursuant to
Rule 41(d), which provides:
(d) Costs of a Previously Dismissed Action. If a plaintiff who previously
dismissed an action in any court files an action based on or including the
same claim against the same defendant, the court:
(1) may order the plaintiff to pay all or part of the costs of that previous
action; and
(2) may stay the proceedings until the plaintiff has complied.
Fed. R. Civ. P. 41(d).
On March 25, 2013, after defendants’ motion for stay was fully briefed, the Court issued
a stay and scheduled a status conference for April 2, 2013. At the status conference, the parties

were informed that the case would be stayed until June 10, 2013. In the meantime, the Court
instructed defendants to obtain a ruling from the Connecticut Superior Court on whether it had
jurisdiction over defendants’ motions for accounting of costs and fees in the related state court
action: CV-07-5013037.
On June 6, 2013, the Court received notice that the state court had jurisdiction over
defendants’ motions for accounting of costs and fees. The state court intended to resume trial
court level proceedings regarding payment of costs when all pending appellate proceedings
related to the case concluded.
Plaintiff’s motive in dismissing the prior action was to perfect evidence of standing.
Thus, plaintiff brought the instant case in good faith. In light of the state court’s assertion of
jurisdiction over defendants’ motions for costs in the prior, related case, this Court declined to
stay the instant case pursuant to Rule 41(d).
DISCUSSION
Reconsideration will be granted only if the moving party identifies controlling decisions
or data that the court overlooked and that could reasonably be expected to alter the court's
decision. See Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for
reconsideration may not be used simply to relitigate an issue that has been decided adversely to
the movant. Joyce v. Semple, 2012 U.S. Dist. LEXIS 150294 (D. Conn. 2012).
Rule 41(d) states that a court “may order the plaintiff to pay all or part of the costs of [a]
previous action; and may stay the proceedings until the plaintiff has complied,” but such
authority is discretionary. Zucker v. Katz, 708 F. Supp. 525, 539 (S.D.N.Y. 1989); Larson v.
Senate of the Commonwealth of Pa., 955 F. Supp. 1549, 1582 (M.D. Pa. 1997); Esquivel v.
Arau, 913 F. Supp. 1382, 1387 (D.C. Cal 1996). Nevertheless, defendants argue that both

Supreme Court and Second Circuit precedent mandate a stay.
Defendants cite Schiff v. Simon & Shuster, Inc., 766 F.2d 61, 62 (2d Cir. 1985) and
Henderson v. Griffin, 30 U.S. 151, 158-159 (1831) for the proposition that a plaintiff “must pay
the costs of the prior action before it will be allowed to maintain a second action.” Neither case
supports defendants’ contention, and federal courts agree that action pursuant to Rule 41(d) is
subject to the broad discretion of the court. JAMES WM. MOORE ET AL., 8-41 MOORE’S FEDERAL
PRACTICE - CIVIL § 41.70 (3d ed. 2013). Moreover, defendants are simply repeating arguments
already made in support of their original motion for stay. Accordingly, defendants’ motion for
reconsideration is GRANTED, but the Court adheres to its decision to deny a stay.
Dated this 19th day of September, 2013, at Bridgeport, Connecticut.

/s/
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE