Anwar et al v. Fairfield Greenwich Limited et al

Filing 1527

ENDORSED LETTER addressed to Judge Victor Marrero from Sharon L. Nelles dated 12/31/2015 re: Ms. Barbachano filing an amended pleading. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by Standard Chartered Defendants. (Signed by Judge Victor Marrero on 1/4/2016) Filed In Associated Cases: 1:09-cv-00118-VM-FM, 1:11-cv-03553-VM(cdo)

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December 31, 2015
By Facsimile
Honorable Victor Marrero,
United States District Judge,
Southern District of New York,
Daniel Patrick Moynihan U.S. Courthouse,
500 Pearl Street,
New York, New York l 0007.
Re:

Anwar v. Fair.field Greenwich Lrd - No. 09-cv-118 (VM)(FM) Barbachano v. Standard Chartered Bank Jnrernational (America.~)
Ltd. et al. No. ll-CV-3553

Dear Judge Marrero:
We -write on behalf of Standard Chartered Bank International (Americas)
Ltd. and Standard Chartered PLC (together, "SCB'") in response to plaintiff Theresa
Barbachano's December 30, 2015 letter to the Court. Ms. Barbachano does not dispute
that her proposed Third Amended Complaint contains claims dismissed by this Cowt
years ago. Rather, she states that it wa.c; not her "intent to suggest that merely filing the
(proposed] Third Amended Complaint" would serve to reinstate any previously dismissed
claims, and that the already dismissed claims are repleaded in order to preserve the issues
for appeal. However, the Second Circuit does not require a plaintiff "to replead a
dismissed claim in order to preserve the right to appeal the dismissal when the court has
not granted leave to amend." P. Stolz Family Partnership LP. v. Daum, 355 F.3d 92, 96
(2d Cir. 2004) (citations omitted). 1 Accordingly, there is no reason to allow Ms.
Barbachano to file an amended pleading containing dismissed claims. Should the Court
The same rule would apply in the Eleventh Circuit, where Ms_ Barbachano's case
will be remanded by the Judicial Panel on Multidistrict Litigation. Dunn v. Air
Une Pilots Ass 'n, 193 F.3d 1185, 1191 n.5 (11th Cir. 1999) ("we do not require a
party to rcplead a claim following a dismissal under Rule l 2(b)(6) to preserve
objections to the dismissal on appeal" (citations omitted)).

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Honorable Victor Marrero

allow the proposed Third Amended Complaint to be filed, SCB respectfully requests that
the Court also enter an order dismissing, for the reasons set forth by the Court in its prior
orders: (i) Counts I, III and V in their entirety; (ii) breach of fiduciary duty and gross
negligence claims based on alleged misrepresentations or omissions in connection with
Ms. Barbachano's purchases of Fairfield Sentry Ltd in Counts II and IV; and (iii) breach
of fiduciary duty and gross negligence claims based on an alleged failure to render
suitable investment advice with respect to investments in her por1folio in Counts II and
IV.

Further, Ms. Barbachano's request that the Court enter partial final
judgment on claims the Court dismissed years ago should be rejected. Courts in this
District have recognized that entry of partial final judgment pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure is an extraordinary measure "reserved for 'the
infrequent harsh case' where ... dangers of hardship or injustice exist." In re Citigroup
Pension Plan Erisa Litig., No. 05-cv-5296, 2007 WL 1074912, at *2 (S.D.N. Y. Apr. 4, 2007)
(' [R]espect for the historic federal policy against piecemeal appeals requires that a Rule
54(b) certification not be granted routinely.' The power should be 'exercised sparingly,'
and reserved for 'the infrequent harsh case' where the aforementioned dangers of
hardship or injustice exist." (footnotes omitted)). Ms. Barbachano's mere "wish to seek
review of the Court's prior orders" issued years ago, (Dec. 30, 2015 Letter at 2), does not
warrant the granting of such extraordinary relief.
Respectfully submitted,

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Sharon L. Nelles
cc:

H. Eugene Lindsey, counsel for Ms. Barbachano

SO ORDERED.

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