Anwar et al v. Fairfield Greenwich Limited et al

Filing 1166

DECISION AND ORDER: Accordingly, it is hereby ORDERED that the motion (Dkt. No. 81) of plaintiff Ricardo Rodriguez Caso for reargument or reconsideration of the Court's June 12, 2013 Decision and Order is DENIED. (Signed by Judge Victor Marrero on 7/23/2013) (lmb)

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- .. -.-.- ...-.... -~ ._., ~ , r ! !idee\, ,',1 I: Ecn' )\/C\! LY IfLEf) I I UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK :)OC tI, l/DATE I ; I ;): ------- --------X PASHA S. ANWAR, et al., 09 Civ. 0118 (VM) Plaintiffs, 10 Civ. 9196 Caso DECISION AND ORDER -againstFAIRFIELD GREENWICH LIMITED, et al., Defendants. ------ X VICTOR MARRERO, United States District Judge. By Decision and Order dated June 12, 12 Order"), Standard ("SCBI" 2012 the Court Chartered or Order granted Bank "Defendant") (the motion enforce 18 Order") (the of this Court's compelling ("Caso" or "Plaintiff") moves for an order pursuant to Local Rule 6.3 SCBI submi t ted a opposition and Caso submitted a reply. Defendant May Ltd. 18, Plaintiff to arbitrate his claims against SCBI on an individual basis. granting reconsideration. "June (Americas) International to "May Ricardo Rodriguez Caso the 2013 Caso now ("Rule 6.3") memorandum in Caso's submissions in support of the instant motion essentially reiterate the same arguments made in the underlying matter, points that this Court fully considered and found meritless. reasons discussed below, For the Caso's motion for reconsideration is DENIED. -1­ I. LEGAL STANDARD Reconsideration "extraordinary of a remedy previous to be court employed order is sparingly in an the interests of finality and conservation of scarce judicial resources." F. Supp. and In re Health 2d 613, quotation 614 Mgmt~ Sys. (S.D.N.Y. Inc. Sec. Litig., 113 2000) "The omitted) . marks (internal citations for provision reargument is not designed to allow wasteful repetition of already arguments Schonberger v. 1990) . considered briefed, Serchuk, 742 F. "The major grounds Supp. and 108, decided. " 119 (S.D.N.Y. justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" National Mediation Bd., Virgin Atl. Airways, Ltd. v. 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, et al., Federal Practice & Procedure § 4478 at 790). To Rule these 6.3 matters ends, must put underlying a request demonstrate before matter the that for reconsideration controlling Court the in movant its law or factual decision believes under on the the Court overlooked and that might reasonably be expected to alter the conclusion reached by the court. Transp., Inc., 70 F.3d 255,257 -2­ See Shrader v. (2d Cir. 1995). CSX Rule 6.3 is intended to ,,\ ensure the finality of decisions prevent the practice of a losing party. gaps of a securities No. lost and Exch. 00 Civ. 7898 2001) (quoting Supp. 169, construe motion and v. Commln (S.D.N.Y. strictly Inc. apply v. Rule 6.3 May 31, Sirota, 700 must so as I II Partners 1 (S.D.N.Y. A court 1988». matters. Capital at *1 1 Pictures, . plugging the additional Ashbury 2001 WL 604044 1 Carolco 170 with and to F. narrowly to avoid duplicative rulings on previously considered issues and to prevent Rule theories not appealing a 6.3 Broad. Co., Shamis v. from being previously final 216 argued, judgment. F. Supp. Ambassador used to Factors as a or See 2d advance substitute Montanile 341, 342 Corp., different v. National (S.D.N.Y. 187 for F.R.D. 2002) i 148, 151 the same (S.D.N.Y. 1999). II. DISCUSSION Caso urges arguments motion that for reconsideration on the basis of were raised in reconsideration the cites original motion. no controlling The law or factual matters the Court overlooked that might reasonably be expected to alter Indeed, the Court various considerations the took outcome into Caso of account asserts motion. -3­ the as June and 12 Order. rejected grounds for the this Caso asserts that the Court erred in granting SCBI's motion to compel individual arbitration of Caso's claims. Specifically, Caso claims that the Court should reconsider its prior decision because the Court address, much construction" less Agreement "failed to even rules in determining whether Services Investment any apply, (i) (the the of contractual Nondiscretionary "NISA") and the Brokerage Agreement permitted class-wide arbitration (Pl.s' Mot. at 7); right to (ii) bring erroneously "curtailed Caso's procedural a class action" by only addressing the provisions of the NISA and ignoring the Brokerage Agreement "in which the ability to bring a class action was not only recognized but preserved in federal court" (iii) made these complete record" determinations id. at 8); and without (iv) (id. "a at 8-10); full and usurped the role of the arbitrator to decide the procedural "issues of whether a case may proceed as a class action," (id. at 11). The Court's decision, however, was not grounded solely on the NISA, but also took into consideration all of the parties' submissions, the Court's prior analysis in the May 18 Order, and all supporting evidence. The Court previously held in the May 18 Order that "the contracts at issue" - both the Brokerage Agreement and the NISA - do not bar arbitration and therefore, based upon the inconsistency -4­ between the Brokerage Agreement and the NISA, explicit clause compelling the NISA's of arbitration "all governs with regard to arbitration of controversies claims arising from the investment at issue in this suit." The Court's June 12 Order reinforced (May 18 Order at 3.) arbitration agreement was holding interpretation contractual this precluded mandating because arbitration that the the NISA the first in class only instance "clearly does not contain any provision or language that anticipates class (June arbitration." Therefore, Caso's concluded that something different baseless. American that the Order Express 4.) on submissions fundamental account the general "procedural federal court and the actual question at right to bring to between a done speculation" fail difference improperly have' "'would based Caso's Court at (PI.'s Reply at 3.) Critically, assertion 12 class is take a into party's action" issue - in whether the parties explicitly agreed to arbitrate on a class wide basis in a ability to specific bring particular legal the contours of a contractual class agreement. action in remedy provided for "private agreements enforced according to their terms. -5­ If Whereas federal court by federal to the is a statute, arbitrate are -Nielsen S.A. v. AnimalFeeds 1773 Int'l (internal (2010) Vol t Info. Corp., Sciences, 559 U.S. quotation Inc. Stanford Junior Univ., v. 662, 130 S. marks Ct. 1758, (quoting omitted) Board of Trustees of Leland 489 U.S. 468, "arbitration is a matter of consent, 479 (1989)). Because Defendants "may not II to submit to class arbitration unless be compelled there is a contractual basis for concluding that the party agreed to do so . Id. II at 1775 (emphasis in original). Regardless of whether Florida law applies, Caso has pointed to no provision in either the Brokerage Agreement or the NISA SCBI's expressing explicit arbitration of the claims at issue. Florida law, class arbitration for consent Therefore, is precluded class even under due to the absence of a provision in either the Brokerage Agreement or the NISA explicitly providing for class arbitration. Finally, Caso's argument that the Court usurped the role of the arbitrator by deciding the allegedly procedural "issue of whether a case may proceed as a class action" is wholly without merit. Order determined "a (Pl. 's Mot . gateway at dispute 11 . ) about The May 18 whether the parties are bound by a given arbitration clause" which is \\a 'question of Dean arbitrability' Witter Reynolds, for Howsam v. (2002) (internal citations omitted). -6­ a court Inc., to 537 U.S. decide. 79, II 84 The Court's June 12 Order holding the "May 18 procedural issue did not decide an Order not did arbitration tt class contemplate independent that related to the arbitration, but rather was entered pursuant to the Court's continuing jurisdiction "to enforce and determine the contours of the May 18 Order compelling arbitration tt in the first instance. Therefore, (June 12 Order at 3.) proper exercise arbitrability of Witter Reynolds, (" [A] of a the Court's 766 power See, dispute. Inc., the June 12 Order was a to ~, F.2d 698, 705 determine Smiga v. (2d Cir. court which orders arbitration retains the Dean 1985) jurisdiction to determine any subsequent application involving the same agreement to arbitrate. II ) ; First Options of Chicago, v. Kaplan, 514 U.S. 938, 947 (1995) parties (holding that where the "did not clearly agree to submit the question of arbitrability to arbitration . [] Inc. dispute was subject . the arbitrability of the to independent review by the courts") . Because Caso has failed to identify any controlling law or factual matters put to the Court on the underlying motion that the Court demonstrably did not consider, Caso's motion for reconsideration is DENIED. 7­ III. ORDBR Accordingly, it is hereby ORDBRBD that the motion (Dkt. No. 81) of plaintiff Ricardo Rodriguez Caso for reargument or reconsideration of the Court's June 12, 2013 Decision and Order is DBNIBD. SO ORDBRBD. Dated: New York, New York 23 July 2013 8­

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