F5 Capital v. RBS Securities, Inc. et al

Filing 70

ORDER denying 62 Motion for Reconsideration for the reasons set forth in the Ruling attached. Signed by Judge Vanessa L. Bryant on 7/27/2017. (Hudson, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
F5 CAPITAL,
Plaintiff,
v.
RBS SECURITIES INC. AND THE
DEPOSITORY TRUST COMPANY,
Defendants.

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CIVIL ACTION NO.
3:14-cv-1469 (VLB)
July 27, 2017

RULING DENYING MOTION FOR RECONSIDERATION [62]
Plaintiff F5 Capital (“F5”) brought a five-count state law complaint for
conversion, civil theft, negligence, replevin, and an accounting against
Defendants RBS Securities Inc. (“RBSSI”) and the Depository Trust Company
(“DTC”) in connection with their holding and refusing to turn over to Plaintiff
shares in non-party Star Bulk Carriers Corp. (“Star Bulk”). The Court granted
RBSSI’s Motion to Dismiss, and Plaintiff thereafter moved for reconsideration,
which Defendant opposed. Plaintiff’s Motion for Reconsideration does not
dispute the Court’s Memorandum of Decision on Defendant’s Motion to Dismiss,
but rather seeks to impose conditions on the dismissal, including that Defendant
be required to waive any objection based on personal jurisdiction or the statute
of limitations. [Dkt. 62.] After briefing was complete on the Motion for
Reconsideration, but before the Court ruled on the Motion, Plaintiff appealed the
Court’s dismissal to the Second Circuit. [Dkt. 66.] The Second Circuit affirmed
this Court’s dismissal and found Plaintiff’s request for a conditional dismissal in
its Motion for Reconsideration unavailing. [Dkt. 69.]

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This Court now denies the Plaintiff’s Motion for Reconsideration for the
reasons set forth in the Second Circuit’s Mandate. [Dkt. 69 at 4.] First, Plaintiff’s
request for a conditional dismissal is untimely. Plaintiff did not argue for a
conditional dismissal in its opposition to Defendant’s Motion to Dismiss, and may
not do so for the first time through a Motion for Reconsideration. Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (stating 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”).
Second, Plaintiff’s request for relief is premature. Plaintiff asserts it will be
left without a venue to pursue this litigation if Defendant fails to (i) consent to suit
in England, (ii) waive any defenses to personal jurisdiction and accept service,
(iii) waive any defenses based on untimeliness, and (iv) agree to restore the
litigation to this Court’s docket should English courts refuse to accept
jurisdiction. [Dkt. 62.] Plaintiff’s speculative motions raises concerns which are
not yet ripe for adjudication. Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682,
687 (2d Cir. 2013) (“To be justiciable, a cause of action must be ripe – it must
present a real, substantial controversy, not a mere hypothetical question.”).
Finally, Plaintiff’s Motion for Reconsideration is unsupported by any newly
discovered evidence, intervening change in applicable law, or showing of
manifest injustice which would warrant reconsideration of the Court’s dismissal.
Virgin Atl. Airways Ltd. v. National Mediation Board, 956 F2d. 1245, 1255 (2d Cit.
1992).

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For the foregoing reasons, Plaintiff’s Motion for Reconsideration is
DENIED.
IT IS SO ORDERED, ADJUDGED AND DECREED, this 27th day of July 2017,
Hartford, Connecticut.
_________/s/______________
Vanessa L. Bryant,
United States District Judge

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