Fort Worth Employees' Retirement Fund v. JP Morgan Chase & Co. et al

Filing 135

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, the lead plaintiff's motion for reconsideration is denied. The Clerk is directed to close Docket No. 125. (Signed by Judge John G. Koeltl on 5/9/2011) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────
EMPLOYEES' RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE VIRGIN ISLANDS, on
behalf of itself and all others
similarly situated,
Plaintiff,

09 Civ. 3701 (JGK)
MEMORANDUM OPINION
AND ORDER

- against J.P. MORGAN CHASE & CO., ET AL.,
Defendants.
───────────────────────────────────
JOHN G. KOELTL, District Judge:
The lead plaintiff, the Employees' Retirement System of the
Government of the Virgin Islands, moves pursuant to Federal Rule
of Civil Procedure 60(b) for reconsideration of the Court's March
30, 2011 Opinion and Order granting the defendants' motion to
dismiss in part and denying that motion in part.

Emps.' Ret. Sys.

of the Gov't of the V.I. v. J.P. Morgan Chase & Co., No. 09 Civ.
3701, 2011 WL 1201520 (Mar. 30, 2011) (the "Opinion").
Rule 60(b) sets forth the grounds by which a court, in its
discretion, can provide relief from a final judgment or order.
See Fed. R. Civ. P. 60(b); Nemaizer v. Baker, 793 F.2d 58, 61 (2d
Cir. 1986).

Rule 60(b) allows a court to relieve a party from a

final judgment for, among other reasons, "(1) mistake,
inadvertence, surprise, or excusable neglect;" "(2) newlydiscovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b);" or "(6) any other reason that justifies relief."
Civ. P. 60(b).

Fed. R.

Rule 60(b) exists to strike a balance between

"serving the ends of justice and preserving the finality of
judgments."

Nemaizer, 793 F.2d at 61.

While Rule 60(b) should be

read broadly to do "substantial justice," final judgments or
orders should not be reopened casually.

Id.

Relief under Rule

60(b) should be granted "only upon a showing of exceptional
circumstances."

Id.; see also Minima v. N.Y.C. Dep't of Homeless

Servs., No. 09 Civ. 1027, 2010 WL 176829, at *1 (S.D.N.Y. Jan. 19,
2010); Meteor AG v. Fed. Express Corp., No. 08 Civ. 3773, 2009 WL
3853802, at *3 (S.D.N.Y. Nov. 18, 2009).
The lead plaintiff grounds its motion for reconsideration on
an apparent error in the Opinion as originally entered.

The

Opinion contained a footnote stating that two statements alleged
in the Second Amended Complaint to be found in the shelf
registration statement were actually found in the Prospectus
Supplement.

On this ground, the Court distinguished In re

CitiGroup Inc. Bond Litigation, 723 F. Supp. 2d 568 (S.D.N.Y.
2010), on which the lead plaintiff relied.
The lead plaintiff is correct that the alleged statements did
in fact appear in both the shelf registration statement and the
Prospectus Supplement.

The excerpts of the shelf registration

statement included among the exhibits presented in support of and
opposition to the motion to dismiss omitted the pages containing
these statements.
conclusions.

However, this is immaterial to the Opinion's

The Court held that plaintiffs lack standing to
2

bring claims under Sections 11 and 12 of the Securities Act of
1933 that relate to securities that they did not purchase.

This

holding is correct for the reasons stated in the Opinion and is
consistent with the overwhelming majority of cases to consider the
issue. 1

In distinguishing In r~_~<::,itigroup, the Court was

explaining why the lead plaintiff would lack standing even if that
case were followed; it was not endorsing In re

Citig~9~'s

holding.
Accordingly, the lead plaintiff has failed to meet the
standard for a motion for reconsideration and its motion is
denied.

The Court is filing an amended Opinion to reflect the

newly submitted excerpts from the shelf registration statement.
CONCLUSION

For the foregoing reasons, the lead plaintiff's motion for
reconsideration is denied.

The Clerk is directed to close Docket

No. 125.
SO ORDERED.
Dated:

New York, New York
May?,

f/(~,

2011

Unite

Koeltl
es District Judge

See, e.g., .!~~e~~e~Cl~~~~~~~£~~~~8RISA_Li1:;~~, 684 F.
2d 485, 490 91
(S.D.N.Y. 2010) i PU!?___Emps. I Ret. Sys. of Miss. v: Merril=-l~~
& Co. (lIPERS of
Mi~~n), 714 F. Supp. 2d 475, 480 (S.D.N.Y. 2010) i N J
Fund
-----~~~~---~ ..~
--~.~-.--v. DLJ
Inc, No. 08 Civ. 5653, 2010 WL 1473288, at *3-4
(S. D. N. Y. Mar. 29, 2010) i li~.:r.:.._~ar.E.enters Vaca~:h9~Fund v . ..B..9Y<il:..l3~~~_ oL Sco~~
Gro~_R.LC, 720 F. Supp. 2d 254, 264-66 (S.D.N.Y. 2010) i City of Ann Arbor
~.E.s. I Ret:~~-"' ___ .f~_tJ:.9E9~l'1..9rt~ Loa!l--'!'E.1.:If3~~n~, 703 F. Supp. 2d 253, 260
61 (E.D.N.Y. 2010) i but~ee .!.l!..E~.(::it~iGr~_Inc::~.!l.0nd Litig~, 723 F. Supp. 2d
568, 584 85 (S.D.N.Y. 2010) i In re Countrywideyi~:...~gorp~_s.~_:.~:i:~, 588 F.
Supp. 2d 1132, 1164 (C.D. Cal. 2009).
I

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