Khaldei v. Kaspiev

Filing 160

MEMORANDUM OPINION & ORDER #104603 re: 150 MOTION for Reconsideration re; 144 Memorandum & Opinion, filed by Anna Efimovna Khaldei. As set forth within, the hearing will not be reopened, no new inferences will be made, no new th eories will be entertained, and no "disputed" exhibits will be admitted. Plaintiff's reconsideration motion is denied, and the June 9, 2014 Opinion stands. Subject to the parties' input at the conference on August 21, 2014, the Co urt believes that the next step in this case is for the parties to finally complete discovery and, if they so choose, renew their summary judgment motions. It is exceedingly unlikely that the Court would rule favorably on Plaintiff's contemplated motion for leave to take an interlocutory appeal. (Signed by Judge John F. Keenan on 8/12/2014) (ajs) Modified on 8/13/2014 (ca).

Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: Aug. 12, 2014

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
------------------------------X
SOUTHERN DISTRICT OF
ANNA EFIMOVNA KHALDEI, NEW YORK
:
-----------------------------------------------------------x
:
In re FANNIE MAE 2008 SECURITIES :
:
08 Civ. 7831 (PAC)
Plaintiff,
LITIGATION
:
09 10 2013 8328
:
No. MD Civ.(PAC) (JFK)
: MEMORANDUM OPINION & ORDER
-against:
:
OPINION & ORDER
:
-----------------------------------------------------------x
KALMAN KASPIEV,
:
:
Defendant.
:
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HONORABLE PAUL A. CROTTY, United States District Judge:
JOHN F. KEENAN, United States District Judge:
Before the Court is Plaintiff Anna Efimovna Khaldei’s
BACKGROUND1
latest motion seeking reconsideration,home financing which was Court’s
The early years of this decade saw a boom in this time of the fueled, among
June 9, 2014 Opinion and Order. See 2014 WLNew lending instruments, such as
other things, by low interest rates and lax credit conditions. 2575774. In that
ruling, the Court concluded loans) and Alt-A mortgages (low-documentation loans)
subprime mortgages (high credit risk that Plaintiff’s New Jersey judgment
of kept the boomagainst Defendant a role too; they took oncannot be enforced
replevin going. Borrowers played Kalman Kaspiev unmanageable risks on the
in assumption that the market would continue to failedthat refinancing options would always be
this action because Plaintiff rise and to carry her burden of
demonstratingfuture. Lending discipline was lacking in the system. Mortgage originators did
available in the that Defendant had been properly served with
process of the New mortgage loans. Rather than carry the rising risk on their that the
not hold these high-risk Jersey action. Plaintiff now asserts books,
this Court’s decisioninto the secondary mortgage errors of as securitized packages
originators sold their loans contained various market, often fact and law.
Although she requests securities (“MBSs”). MBS markets grew almost exponentially.
known as mortgage-backed oral argument on the motion, a review of
the papers then the housing bubble burst. In would be cumulative, dropped abruptly
But reveals that argument 2006, the demand for housing pointless,
and dilatory. began Local In light ofRule 6.3. housing the reasons that their
and home prices See to fall. Civil the changing For market, banks modified
follow, practices and became unwilling to refinance home mortgages without refinancing.
lending the motion for reconsideration is denied.
Plaintiff’s arguments flow from several grievous
1
misapprehensions. all references cited as “(¶ _)” or to the “Complaint” are to counsel has
Unless otherwise indicated, First and foremost, Plaintiff’s the Amended Complaint,

dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

again misapprehended the standards controlling a motion for

1

reconsideration.

Although those standards go completely

unmentioned in both of Plaintiff’s briefs, they are well
settled. See, e.g., Khaldei v. Kaspiev, No. 10 Civ. 8328, 2014
WL 114350, at *1 (S.D.N.Y. Jan. 13, 2014); accord Local Civil
Rule 6.3.

Briefly stated, reconsideration may be appropriate if

the movant can “point to controlling decisions or data that the
court overlooked.” Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995).

Where no such controlling decisions or data

exist, or where the court has considered and rejected the
movant’s position, reconsideration should not be sought. E.g.,
Grand Crossing, L.P. v. U.S. Underwriters Ins. Co., No. 03 Civ.
5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008); In re
Houbigat, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996).

Thus, a

movant may not use a reconsideration motion as an opportunity to
repeat the same old arguments ad nauseam.

Using the motion to

try out new theories, or to introduce new non-controlling
caselaw, is equally improper. See Walsh v. WOR Radio, 537
F. Supp. 2d 553, 555 (S.D.N.Y. 2008), aff’d, 326 F. App’x 589
(2d Cir. 2009).

Plaintiff’s motion therefore fails at the

outset, because it cites neither controlling law nor overlooked
evidence.
The second misapprehension which permeates Plaintiff’s
motion relates to the burden of proof.
2

Although Plaintiff

concedes that the burden was hers to prove the validity of
service, at other times her motion seems premised on the idea
that Defendant — or, bizarrely, this Court — was required to
disprove the consistent position of Defendant and Otis that
Defendant did not live with her in January 2001. See Pl. Moving
Br. at 4 (“Kaspiev has failed to provide a convincing excuse for
using the Long Branch address”); Pl. Reply. Br. at 4 (“Kaspiev
cannot simply deny that he lived in Long Branch”); id. at 10
(“[N]either Kaspiev nor the Court has cited a single decision
that vacated a default judgment while finding that the
defendant’s denial of residence at the relevant address lacked
credibility.”).

Plaintiff also repeatedly grouses that the

Court drew an “adverse inference” against her in connection with
Marina Otis, and now complains that the “Court did not address
the argument for drawing an inference against Kaspiev.” (Pl.
Moving Br. at 8.)

Of course, Defendant was not obligated to

call Otis (or anyone) at the hearing.

He nevertheless chose to

submit an affidavit by Otis, which the Court credited because
(1) Otis’s statements contained therein were consistent with her
2001 letter to the New Jersey court, and (2) Plaintiff did not
impeach her credibility by calling her to testify at the
hearing. See 2014 WL 2575774, at *7. 1

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Plaintiff now complains that the Court “did not explain why the

3

The Court further observes that much of Plaintiff’s
briefing seems baldly premised on her disagreement with the
Court’s findings and conclusions.

For example, she urges no

fewer than five times that her reading of the record is the only
“logical” one. See Pl. Moving Br. at 2; id. at 3; Pl. Reply Br.
at 1 (arguing that “the logical finding would be that Kaspiev
continued to live in Long Branch at least until the next turn in
his story”); id. (urging “the logical conclusion is that he
still lived in Long Branch”); id. at 10; see also Pl. Moving Br.
at 2 (“Many of the Court’s inferences are illogical or contrary
to fact.”); Pl. Reply Br. at 5 (“The Court’s conclusion is
illogical and contrary to law.”).

Then and now, the Court

simply disagrees with this ipse dixit for the reasons set forth
in its Opinion. See 2014 WL 2575774, at *7–9.

Although the

Court concluded that Defendant had indeed lived with Otis “for
at least some period before 2000,” id. at *7, this alone simply
did not suffice to carry Plaintiff’s burden of showing that
Defendant continued to actually live there on or around January
evidence at pp. 10-12 of Plaintiff’s brief is not ‘compelling.’”
(Moving Br. at 13.) The Court believes its rationale for using that
descriptor is self-evident, particularly as to Plaintiff’s argument
that Defendant and Otis are nefariously “deceiving the telephone
company” by using a “family” cell phone plan. (Pl. Post-Hearing Br. at
12.) Moreover, it bears mentioning that two of the exhibits (Ex. 21
and Ex. 42) relied on in that section of the brief were not admitted
in evidence at the hearing and so the Court did not consider them when
it ruled. See 2014 WL 2575774, at *4.

4

4, 2001, after Defendant and Otis broke up, see id. at *9 (“The
documentary record is ambiguous at best, and Otis’s unimpeached
affidavit supports the defense position.”).

Plaintiff’s

displeasure at this ruling is understandable, but is not itself
a colorable basis for reconsideration. See Houbigant, 914
F. Supp. at 1001 (a party may not “reargue those issues already
considered when [it] does not like the way the original motion
was resolved”).

Neither are her quibbles with, inter alia, the

Court’s word choice. See Pl. Moving Br. at 6 (complaining that
“the Court’s use of the word ‘reconciled’ blurs the deception by
Kaspiev and Otis of how close they are now”).
Plaintiff also seeks to reargue her contention, improperly
raised for the first time after the hearing, that Otis should be
deemed a “suitable agent for service of process” on Defendant
because he registered “Abcot” as a trade name in 1997, and
listed the Long Branch apartment as his address at that time.
(Pl. Post-Hearing Br. at 24.)

Plaintiff now claims that the

Court erred in stating that “the New Jersey judgment has nothing
to do with Abcot,” 2014 WL 2575774, at *9, although she does not
contend that the New Jersey pleadings name Abcot as a defendant.
Plaintiff now cites three cases, none of which are new,
controlling, or particularly relevant. See Bonneville Billing &
Collection v. Johnston, 987 P.2d 600 (Utah 1999) (plaintiff sued
5

defendant in his individual capacity, named the trade entity in
the suit, and validly effected service on the individual);
Academy of IRM v. LVI Environmental Services, Inc., 687 A.2d
669, 671, 677 (Md. 1997) (upholding service of an order that
addressed a party by its trade name, but only after the
plaintiff had named both the party and its trade name in the
initial lawsuit); McCall v. IKON, 611 S.E.2d 315 (S.C. Ct. App.
2005) (service upheld where corporate defendant was to blame for
plaintiff’s confusion about its corporate structure).

These

decisions thus provide no basis for reconsideration under the
standard. See Davis v. The Gap, Inc., 186 F.R.D. 322, 324
(S.D.N.Y. 1999) (movant “must demonstrate that the Court
overlooked controlling decisions or factual matters that were
put before it on the underlying motion”).
Plaintiff’s remaining arguments are specious.

First, she

now claims that the Court’s statements at the hearing about
which evidence it would consider were “ambiguous.” (Pl. Moving
Br. at 13.)

This contention is improper because it was not

raised in Plaintiff’s post-hearing brief, or in his supplemental
brief concerning this very evidence. See Carolco Pictures Inc.
v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988)
(reconsideration rules “prevent the practice of a losing party
examining a decision and then plugging the gaps of a lost motion
6

with additional matters”).

The characterization is also absurd,

as evidenced by the fact that counsel stated twice on the record
that he understood the Court’s ruling. (Hearing Tr. at 116.)
Indeed, the very impetus for the colloquy at the hearing was
that counsel was deciding whether to spend time moving documents
into evidence. (Id. at 115.)

Having then failed to do so, and

having now utterly failed to identify any error in the Court’s
June 9, 2014 decision, its rulings will not be revisited.
Second, in a letter dated August 1, 2014, Plaintiff
contends that the Court’s December 2013 decision incorrectly
rejected her argument “that Defendant’s fiduciary duties
preclude his challenge to the New Jersey judgment.”

But this

argument is related to Plaintiff’s constructive notice theory,
which was considered and rejected (again) in the Court’s last
Opinion denying reconsideration. See Khaldei v. Kaspiev, No. 10
Civ. 8328, 2014 WL 114350, at *2 (S.D.N.Y. Jan. 13, 2014).
Regardless, Plaintiff has never cited any authority for the
curious proposition that the requirement of valid service, a
fundamental tenet of due process, may be discarded where the
target of the suit has breached a duty to the plaintiff.
Finally, Plaintiff’s recycled arguments concerning
Defendant’s credibility, or his whereabouts at times other than
January 2001, do not warrant yet another discussion.
7

Suffice it

to say that Plaintiff falls well short of demonstrating that the
high bar for reconsideration has been met.
In sum:

the hearing will not be reopened, no new

inferences will be made, no new theories will be entertained,
and no "disputed" exhibits will be admitted.

Plaintiff's

reconsideration motion is denied, and the June 9, 2014 Opinion
stands.
Subject to the parties' input at the conference on August
21, 2014, the Court believes that the next step in this case is
for the parties to finally complete discovery and, if they so
choose, renew their summary judgment motions.

It is exceedingly

unlikely that the Court would rule favorably on Plaintiff's
contemplated motion for leave to take an interlocutory appeal.

SO ORDERED.

Dated:

New York, New York
August jl_ , 2014

~f.~<

(/!

J ol'1I1F.Ke"enan
United States District Judge

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