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)

- ..

-.-.- ...-....

-~

._.,

~

, 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