SWIFT v. PANDEY et al

Filing 54

OPINION fld. Signed by Judge Jose L. Linares on 7/8/14. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ROBERT SWIFT,

Civil Action No. 13-650 (JLL)

Plaintiff,
OPINION
V.

RAMESH PANDEY, et al,
Defendants.

LINARES, District Judge.

This matter comes before the Court by way of Plaintiff Robert Swift (“Plaintiff’)’s
motion for reconsideration [CM/ECF No. 50] of this Court’s Opinion and Order granting in part
and denying in part Defendants’ motion to dismiss. The Court has considered the submissions
made in support of and in opposition to the instant motion, and decides this matter without oral
argument pursuant to Fed. R. Civ. P. 78. For the reasons set forth below, Plaintiff’s motion is
denied.
I.

BACKGROUND

The relevant facts of this case are fully detailed in this Court’s April 30, 2014 Opinion
(‘Opinion”), and are repeated here only to the extent they are pertinent to the instant motion for
reconsideration.
This case concerns an alleged “sham loan” from Xechem, Inc. (“Xechem”) to Xechem
India. According to Plaintiff, Xechem lent money to Xechem India because Ramesh Pandey led
the Board to believe that Xechem India was Xechem’ s subsidiary. In reality, however, Bhuwan
Pandey owned 99.8% of Xechem India. Plaintiff alleges that the Pandey Defendants concealed
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Xechem India’s true ownership to procure the loan and, through Xechem India, used the proceeds
of the loan from Xechem to: “(1) lease office space in India from Ramesh; (2) pay money to
relatives of Ramesh and Bhuwan in India; (3) pay the Defendants’ ‘personal expenses’; (d) buy
‘assets in India’; (4) acquire a leasehold interest in certain land in India; and (5) purchase a ‘spray
dryer’ machine.” (Sec. Am. Compl.

¶ 82.)

Plaintiff asserts that the Defendants concealed these

assets from Xechem’s board. (Id.)
Plaintiff’s Second Amended Complaint, filed on December 13, 2013, asserted twelve
causes of action that fell into the following five categories: (1) breach of fiduciary duty as against
Ramesh, Bhuwan, and Abhilasha; (2) breach of duty of loyalty as against Ramesh, Bhuwan, and
Abhilasha; (3) ultra vires act as against all Defendants; (4) unjust enrichment as against Ramesh,
Bhuwan, Abhilasha, and Xechem India; and (5) civil conspiracy as against all Defendants.
On January 24, 2014, Defendants moved to dismiss all claims (except for Count Twelve)
asserted in the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 1 2(b)(6).
Plaintiff filed an opposition on March 12, 2014. By way of an Opinion and Order dated April 30,
2014, the Court granted Defendant’s motion to dismiss Plaintiff’s claims with the exception of
those for unjust enrichment against Ramesh and Bhuwan Pandey. Defendants did not move to
dismiss Count Twelve for unjust enrichment against Xechem India. Plaintiff filed the instant
motion for reconsideration of this Court’s Opinion and Order dismissing his conspiracy claims on
May 30, 2014.
II.

LEGAL STANDARD
“Reconsideration is an extraordinary remedy” and should be granted “very sparingly.”

See L. Civ. R. 7.1(i) cmt. 6(d); see also Fellenz v. Lombard Investment Corp., 400 F. Supp. 2d

681, 683 (D.N.J. 2005). A motion for reconsideration “may not be used to re-litigate old

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matters” or argue new matters that could have been raised before the original decision was
reached. See, e.g., P. Schoenfeld Asset Mgmt., LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352

(D.N.J. 2001). To prevail on a motion for reconsideration, the moving party must “set

[]

forth

concisely the matter or controlling decisions which the party believes the Judge or Magistrate
Judge has overlooked.” L. Civ. R. 7.1.
The Court will reconsider a prior order only where a different outcome is justified by: 1)
an intervening change in law; 2) the availability of new evidence not previously available; or 3) a
need to correct a clear error of law or manifest injustice. See N River Ins. Co. v. CIGNA
Reinsurance, Co., 52 F.3d 1194, 1218 (3d Cir. 1995). When the assertion is that the Court
overlooked something, the Court must have overlooked “some dispositive factual or legal matter
that was presented to it.” McGovern v. City ofJersey City, No. 98-5 186, 2008 WL 58820, at *2
(D.N.J. Jan. 2, 2008).
III.

DISCUSSION

As an initial matter, Local Civil Rule 7.1(i) imposes a 14-day time limit on the filing of
motions for reconsideration: “Unless otherwise provided by statute or rule (such as Fed. R. Civ.
P. 50, 52 and 59), a motion for reconsideration shall be served and filed within 14 days after the
entry of the order or judgment on the original motion by the Judge or Magistrate Judge.”
Plaintiffs motion for reconsideration is governed by Rule 54(b), which, in relevant part,
provides that “any order or other decision, however, designated, that adjudicates fewer than
all
the claims or the rights and liabilities of fewer than all parties does not end the action as
to any of
the claims or parties and may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.” As a result, the 14-day time
limit
prescribed by Local Rule 7.1(i) governs. This Court’s dismissal order was entered
on April 30,

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2014. Plaintiffs motion for reconsideration was not filed until a month later, on May 30, 2014,
which is two weeks past the deadline. Accordingly, Plaintiff’s motion could be denied on this
basis alone. For the sake of completeness, however, the Court will address Plaintiff’s motion.
In his motion, Plaintiff neither argues that there has been an intervening change in the
law, nor that new evidence compels a result different from the one this Court previously reached.
Accordingly, to prevail on his motion for reconsideration, Plaintiff must establish either that this
Court committed clear error in granting Defendants’ motion to dismiss his conspiracy claims, or
that reconsideration is appropriate to prevent manifest injustice. See N River Ins. Co., 52 F.3d at
1218.
Plaintiff alleges that this Court “may have

.

.

.

missed” some of the “allegations and

inferences available in the Second Amended Complaint.

.

.

and the civil conspiracy claim

may not have been dismissed with prejudice had these allegations and i nferences been given
their full weight.” ((Pl.’s Mot. Reconsid. 1.) Plaintiff argues that his Second Amended
Complaint “alleged that defendants, together, conspired to hide the true ownership of
Xechem India and benefited from that unlawful act. These allegation are sufficient to survive
a 12(b)(6) motion to dismiss.” (Pl.’s Mot. Reconsid. 2.) In short, Plaintiff seeks to relitigate an
issue already ruled upon by this Court: namely, whether the Second Amended Complaint
contained sufficient facts to make out a plausible conspiracy claim. This Court already held that
it did not. See Opinion, CM/ECF No. 46, at 21-23. In its prior opinion, this Court addressed
Plaintiffs civil conspiracy claim and found that “[h]is Second Amended Complaint contain[edj
no factual allegations to support an agreement between the parties to deceive Xechem about
its
ownership of Xechem India.” Id., at p. 23 (emphasis in original).

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Thus, it is clear to the Court that Plaintiff’s motion seeks to re-argue matters that were
previously presented to and rejected by this Court. Local Civil Rule 7.1(i) does not allow parties
to restate arguments that the court has already considered. See, e.g., G—69 v. Degnan, 748 F. Supp.
274, 275 (D.N.J. 1990). To that end, “[m]ere disagreement with a decision of the District Court
should normally be raised through the appellate process and is inappropriate on a motion for
reargument.” Bowers v. Nat’l Collegiate Athletic Ass’n, 130 F. Supp. 2d 610, 612-13 (D.N.J.
2001) (clarifying that motions for reconsideration in this district are not “a substitute for the
appellate process” or “an opportunity to argue what could have been, but was not, argued in the
original set of moving and responsive papers.”)
This Court also notes that Plaintiff would not be able to maintain a civil conspiracy claim
even if he had alleged sufficient facts upon which this Court could infer an agreement among the
Defendants. Unjust enrichment is Plaintiff’s only remaining claim. Because “civil conspi
racy
depends on the performance of some underlying tortious act,” a claim of civil conspiracy cannot
stand where there is no underlying tort. Majewski v. Fischi, 372 Fed. Appx. 300, 306 (3d Cir.
Pa.
2010) (citing Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 407 (3d Cir. 2000))
.
New Jersey does not recognize unjust enrichment as an independent tort cause of action.
See
Castro v. NYT Television, 370 N.J. Super. 282, 299 (App. Div. 2004) (explaining that “the
role of
unjust enrichment in the law of torts is limited for the most part to its use as a justification for
other
torts such as fraud or conversion.”); Nelson v. Xacta 3000 Inc., No. 08—5426, 2009 WL
4119176,
at *7 (D.N.J. Nov. 24, 2009) (dismissing unjust enrichment claim after finding that
“New Jersey
law does not recognize unjust enrichment as an independent tort cause of action”
); Steamfitters
Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 936 (3d
Cir. 1999) (“In

the tort setting, an unjust enrichment claim is essentially another way of stating
a traditional tort

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claim (i.e., if defendant is permitted to keep the benefit of his tortious conduct, he will be unjustly
enriched).”).
Therefore, in failing to establish that this Court overlooked any “dispositive factual or legal
matter that was presented to it,” Plaintiff has failed to sustain his burden of establishing that this
Court committed clear error in granting Defendants’ motion to dismiss his conspiracy claim.
McGovern, 2008 WL 58820, at *2 (emphasis added). Moreover, to the extent Plaintiff seeks in

the alternative to be given leave to amend his conspiracy claim, his request is denied because
amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (“Futility’ means that the complaint,
as amended, would fail to state a claim upon which relief could be granted.”) (citing In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).
IV.

CONCLUSION

Based on the reasons set forth above, Plaintiff’s motion for reconsideration is denied.
An appropriate Order accompanies this Opinion.

JUnare
States District Judge
Date: Ju1y,2014

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