Awadallah v. Western Union Corporation et al
MEMORANDUM AND ORDER: For the reasons set forth in the attached order, Awadallah's motion for reconsideration (Doc. No. 69 ) is denied. Ordered by Judge Roslynn R. Mauskopf on 1/4/2017. (Taronji, Robert)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
14-CV-3493 (RRM) (VMS)
- against THE WESTERN UNION COMPANY; FIRST
DATA CORPORATION; DAVID L.
SCHLAPBACH; ROBERT GEORGE DEGEN;
KIM CATHERINE HEAVEY; and MICHAEL T.
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Adnan Awadallah seeks reconsideration of this Court’s March 30, 2016
Memorandum and Order (the “March Order”) granting defendants’ motion to dismiss on the
basis of forum non conveniens. (Mem. Supp. Reconsideration (Doc. No. 69-1).)1 The Court
presumes the parties’ familiarity with the facts of the case. For the reasons set forth below,
Awadallah’s motion for reconsideration is denied.
STANDARD OF REVIEW
Reconsideration is “an extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.” Butto v. Collecto Inc., 845 F. Supp. 2d
491, 494 (E.D.N.Y. 2012) (quoting Trans-Pro Logistic Inc. v. Coby Elecs. Corp., No. 05-CV1759 (CLP), 2010 WL 4065603, at *1 (E.D.N.Y. Oct. 15, 2010) (internal quotation marks and
citation omitted)). “A motion for reconsideration should be granted only where the moving party
demonstrates that the Court has overlooked factual matters or controlling precedent that were
Plaintiff also filed a supplemental letter dated May 31, 2016 (Doc. No. 70) which has been considered on this
presented to it on the underlying motion and that would have changed its decision.” In re N.Y.
Cmty. Bancorp, Inc., Secs. Litig., 244 F.R.D. 156, 159 (E.D.N.Y. 2007); see also Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “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 manifest injustice.” Webb v. City of New York, No. 08-CV-5145
(CBA), 2011 WL 5825690, at *1 (E.D.N.Y. Nov. 17, 2011) (internal quotation marks and
citation omitted). It “may not . . . be used as a vehicle for relitigating issues already decided by
the Court,” id., at *1 (internal quotation marks and citation omitted), and “[a] moving party may
not merely reiterate or repackage an argument previously rejected by the court,” In re N.Y. Cmty.
Bancorp, 244 F.R.D. at 160. In other words, a motion for reconsideration “is not an opportunity
for a second bite at the apple.” Id. (internal citation and quotation marks omitted).
Awadallah brings two claims on his motion for reconsideration: first, Awadallah argues
that the Court erred by dismissing the complaint without defendants’ submitting factual
affidavits in support of their arguments; second, Awadallah argues that the conditions imposed
by the Court were insufficient to protect his interests. (Mem. Supp. Reconsideration at 2.)2
Accepting Facts as True
First, Awadallah asserts that the Court failed to accept the facts alleged in the complaint
as true despite defendants’ failure to provide factual affidavits. Awadallah focuses his argument
on the private interest factors.3 Specifically, he argues that defendants failed to provide factual
support for the assertion that relevant documents and witnesses are located in Italy. (Mem. Supp.
For ease of reference, all citations to court documents utilize ECF pagination.
In deciding a forum non conveniens motion the Court engages in a three-part analysis considering: (1) the degree
of deference to be afforded to plaintiff’s choice of forum; (2) whether an adequate alternative forum exists; and (3)
private and public interest factors. Iragorri v. United Techs. Corp., 274 F.3d 65, 73–74 (2d Cir. 2001).
Reconsideration at 5–6.) He further argues that the Court did not sufficiently credit Awadallah’s
assertions that communications with defendants were in English and defendants speak only
English. (Id. at 6.)
Awadallah’s motion for reconsideration is meritless. The facts accepted by the Court
were based on Awadallah’s own assertions in the pleadings and other submissions. In essence,
Awadallah’s grievance is not that the Court failed to accept his factual assertions as true, but that
the Court declined to accept his extremely narrow interpretation of those facts. The Court is
entitled to “rely upon the pleadings, affidavits, and their own assessment of the facts and legal
questions at issue” in making factual determinations on a forum non conveniens motion.
RIGroup LLC v. Trefonisco Mgmt. Ltd., 949 F. Supp. 2d 546, 557 n.5 (S.D.N.Y. 2013)
(emphasis added). Here, the Court did just that.
By way of example, Awadallah argues that the Court improperly found that there are
relevant witnesses in Italy despite Awadallah’s insistence that the only relevant witnesses are
located in the United States. (Mem. Supp. Reconsideration at 5–6.) However, the fact that there
are witnesses in Italy is based not on defendants’ argument, but on Awadallah’s own assertion
that he would depose witnesses who reside in Italy, (March Order (Doc. No. 67) at 16–17 (citing
Awadallah Decl. (Doc. No. 58-4) ¶ 19)), and on Awadallah’s claims that (i) defendants,
“together with high-profile Italian attorneys and police officers, set up a complex scheme . . . to
convince Italian prosecutors to bring a criminal extortion charge against Awadallah” and (ii) that
defendants “bought and paid for” the investigation and prosecution, (see Second Am. Compl.
(Doc. No. 24) ¶¶ 38, 57 n.11 (emphasis added)). Based on these factual assertions put forth by
Awadallah and on the Court’s assessment of those factual assertions, the Court determined that
there are relevant witnesses in Italy.4 See RIGroup LLC, 949 F. Supp. 2d at 557 n.5 (noting that
the Court may rely on its “own assessment of the facts and legal questions at issue to determine
the location, or likely location of relevant witnesses”).
In short, the Court did accept Awadallah’s factual assertions as true and, based on those
facts, found that dismissal was appropriate. (See, e.g., March Order at 15 n.6 (“For purposes of
this motion, the Court assumes without deciding that defendants conspired in the United States,
that the decisions were made in the United States, and that there is both documentary and
testimonial evidence of that conspiracy located here.”).) Awadallah simply takes issue with the
Court’s interpretation of those facts and the legal questions at issue in this case. Because the
Court has not “overlooked factual matters or controlling precedent . . . that would have changed
its decision,” In re N.Y. Cmty. Bancorp, 244 F.R.D. at 159, Awadallah’s motion for
reconsideration is denied.5
Awadallah requests that, if the Court upholds its decision to dismiss, it implement
additional protective conditions. (Mem. Supp. Reconsideration at 9.) Awadallah does not allege
that the Court has overlooked any factual matter or controlling precedent with respect to the
conditions. Rather, Awadallah argues only that other courts have imposed a variety of
conditions when dismissing based on the doctrine of forum non conveniens and therefore the
Awadallah argues that he purposefully chose not to sue any Italian officials in this action and that defendants
“improperly suggest[ ]” that his “real cause of action” is against those officials. (Mem. Supp. Reconsideration at 6.)
Awadallah misses the point. The Court did not find that Awadallah’s real cause of action was against anyone other
than the defendants in this case. That does not mean, however, that the Italian officials – who, Awadallah alleges,
acted at the “behest and urging” of defendants – have no information relevant to this action.
Even if the Court were to find that the private interest factors weighed in Awadallah’s favor, the other factors –
namely, the minimal deference to which Awadallah’s choice of forum is entitled and the public interest, which
weighs heavily in favor of dismissal – sufficiently outweigh the private interests at play here and dismissal based on
the doctrine of forum non conveniens would still be appropriate.
conditions set by this Court should be strengthened. (Id.) This is an insufficient basis for the
extraordinary remedy of reconsideration.
For the reasons set forth above, Awadallah’s motion for reconsideration (Doc. No. 69) is
Roslynn R. Mauskopf
Dated: Brooklyn, New York
January 4, 2017
ROSLYNN R. MAUSKOPF
United States District Judge
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