De Ganay v. De Ganay et al

Filing 31

MEMORANDUM AND ORDER re: denying 25 Motion for Reconsideration. For the reasons stated above, plaintiff's motion for reconsideration is denied. This Memorandum and Order resolves docket entry no. 25. (Signed by Judge Naomi Reice Buchwald on 4/29/2013) Copies Mailed By Chambers. (sac)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------X
FRANCES SPENCE DE GANAY,
Plaintiff,
MEMORANDUM AND ORDER

- against THIERRY DE GANAY, SOCIETE PAC,
S.A., JEAN-LOUIS LARIVIERE,
BRIGITTE RICHARD, THIERRY LEGER,

11 Civ. 6490 (NRB)

Defendants.
----------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

I. Introduction
Presently before the Court is plaintiff Frances Spence de
Ganay

(“plaintiff”)’s

motion

for

reconsideration

of

our

Memorandum and Order of December 6, 2012, denying her motion for
default

judgment

and

dismissing

personal jurisdiction.

her

complaint

for

lack

of

See de Ganay v. de Ganay, No. 11 Civ.

6490 (NRB), 2012 WL 6097693 (S.D.N.Y. Dec. 6, 2012).

For the

following reasons, plaintiff’s motion is denied.
II. Background
This is a common law fraud action commenced by plaintiff
against several defendants, including her former spouse, Thierry
de Ganay, based on allegedly false statements made by defendants
in the course of judicial proceedings relating to plaintiff’s
divorce.

The

alleged

misrepresentations

primarily

concern

2
whether a Paris apartment lived in by plaintiff and her exhusband was a marital residence for purposes of their prenuptial
agreement, such that the personal property within the apartment
should have been distributed to plaintiff.

We need not recount

additional details of the parties’ dispute here, as they are set
out in our Memorandum and Order of December 6, 2012, see de
Ganay,

2012

WL

6097693,

at

*1-*4,

and

thus

we

will

proceed

directly to the procedural history.
Plaintiff filed her complaint on September 16, 2011.
defendants

had

not

answered

or

otherwise

responded

After
within

twenty-one days of service, plaintiff moved for default judgment
on April 22, 2012.
2012,

arguing

Mr. de Ganay filed an opposition on June 20,

inter

jurisdiction over him.
Enter Default 9-15.
On

December

6,

alia

that

we

do

not

have

personal

Def.’s Mem. of Law in Opp. to Request to

Plaintiff did not submit a reply.
2012,

we

issued

a

Memorandum

and

Order

denying plaintiff’s motion for default judgment and dismissing
her complaint for lack of personal jurisdiction.
2012

WL

6097693.

We

observed

that

“the

See de Ganay,
only

available

[statutory] basis for personal jurisdiction is [Federal Rule of
Civil Procedure] 4(k)(1)(A), establishing jurisdiction over a
defendant ‘who is subject to the jurisdiction of a court of
general jurisdiction in the state where the district court is
located.’”

Id. at *5 (quoting Fed. R. Civ. P. 4(k)(l)(A)).

3
However, plaintiff had not demonstrated that general personal
jurisdiction exists under N.Y. C.P.L.R. § 301, id., nor had he
demonstrated that specific personal jurisdiction exists under
N.Y. C.P.L.R. § 302, id. at *6-*7.
plaintiff’s
complaint.

motion

for

default

On this basis, we denied

judgment

and

dismissed

her

See id. at *7-*8.

On February 25, 2013, plaintiff moved for reconsideration
of our Memorandum and Order of December 6, 2012.1

Mr. de Ganay

filed an opposition on March 12, 2013, and plaintiff filed her
reply on March 19, 2013.
III. Discussion
A. Legal Standard
Plaintiff moves for reconsideration pursuant to Local Civil
Rule 6.3.2

“Reconsideration is appropriate only where a court

1

By letter endorsement dated January 22, 2013, we had granted plaintiff an
extension of time within which to make such a motion.

2

Local Civil Rule 6.3 provides:
Unless otherwise provided by the Court or by statute or rule
(such as Fed. R. Civ. P. 50, 52, and 59), a notice of motion for
reconsideration or reargument of a court order determining a
motion shall be served within fourteen (14) days after the entry
of the Court’s determination of the original motion, or in the
case of a court order resulting in a judgment, within fourteen
(14) days after the entry of the judgment. There shall be served
with the notice of motion a memorandum setting forth concisely
the matters or controlling decisions which counsel believes the
Court has overlooked.
The time periods for the service of
answering and reply memoranda, if any, shall be governed by Local
Civil Rule 6.1(a) or (b), as in the case of the original motion.
No oral argument shall be heard unless the Court directs that the
matter shall be reargued orally. No affidavits shall be filed by
any party unless directed by the Court.

Local Civ. R. 6.3.

4
has overlooked controlling decisions or facts presented in the
underlying

motion

which,

had

they

been

considered,

might

reasonably have altered the result of the initial decision.”3
re

Fosamax

Prods.

Liab.

Litig., 815

F.

Supp.

2d

649,

In
651-

52 (S.D.N.Y. 2011) (citing Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995)).

Because the remedy of reconsideration

does

“where

not

relevant

provide

relief

factual

or

legal

a

party

arguments,”

failed

id.

at

to

present

651,

a

party

seeking reconsideration “may not advance new facts, issues or
arguments not previously presented to the Court,” id. (quoting
E.E.O.C.

v.

Fed.

Express

(E.D.N.Y. 2003)).

Corp.,

268

F.

Supp.

2d

192,

199

Reconsideration is “an extraordinary remedy

to be employed sparingly,” given the interests of finality and
conservation

of

scarce

judicial

resources,

Small

v.

Nobel

Biocare USA, LLC, Nos. 05 Civ. 3225 (NRB), 06 Civ. 683 (NRB),
2012 WL 952396, at *1 (S.D.N.Y. Mar. 21, 2012) (quoting Liu v.
Credit Suisse First Boston Corp. (In re Initial Pub. Offering
Sec.

Litig.),

399

F.

Supp.

2d

298,

300

(S.D.N.Y.

2005))

(internal quotation mark omitted), and “[t]he decision to grant
or

3

deny

a

motion

for

reconsideration

is

within

‘the

sound

Reconsideration may also be appropriate “where the movant demonstrates that
there has been an intervening change of controlling law, that new evidence
has become available, or that there is a need to correct a clear error or
prevent manifest injustice.”
Small v. Nobel Biocare USA, LLC, Nos. 05 Civ.
3225 (NRB), 06 Civ. 683 (NRB), 2012 WL 952396, at *1 (S.D.N.Y. Mar. 21, 2012)
(quoting Padilla v. Maersk Line, Ltd., 636 F. Supp. 2d 256, 259 (S.D.N.Y.
2009)) (internal quotation marks omitted).

5
discretion of the district court,’” id. at *2 (quoting Families
for Freedom v. U.S. Customs & Border Protection, No. 10 Civ.
2705 (SAS), 2011 WL 4599592, at *2 (S.D.N.Y. Sept. 30, 2011)).
B. Analysis
In her motion for reconsideration, plaintiff argues that
our

decision

of

December

6,

2012,

was

in

error

because

we

overlooked allegations in her complaint that allegedly support
personal jurisdiction under CPLR section 302(a)(2).

Pl.’s Mem.

of Law 4; Frances Spence de Ganay Affirmation (Feb. 25, 2013)
¶ 3.

Section 302(a)(2) provides for personal jurisdiction over

any person who, either himself or through an agent, “commits a
tortious
action

act

within

arises

the

from

state,”

that

where

plaintiff’s

tortious

act.

that

claim,

cause

N.Y.

of

C.P.L.R.

§ 302(a)(2).
Here,
limited

plaintiff
to

argues

her

‘misrepresentations

to

“far

French

from

being

courts

in

France,’ . . . is also founded upon fraudulent representations
to state and federal courts in New York.”

Pl.’s Mem. of Law 5

(quoting de Ganay, 2012 WL 6097693, at *7).

Plaintiff cites

sections of her complaint in which she alleged that defendants
secured recognition of the French divorce judgment in New York
by

representing

plaintiff

and

to
her

New

York

husband

state

resided

and
in

federal
France,

courts
allegedly

that
in

contradiction to defendants’ representations to French courts

6
that the Paris apartment was not a marital residence.
at 5-7 (citing Compl. ¶¶ 53-54, 56-60).
cites

her

allegation

that

“Mr.

de

See id.

Additionally, plaintiff

Ganay’s

attorney,

Robert

Michaels, made efforts to conceal the fraud on the French courts
by

stating

extrinsic

[to
or

a

New

intrinsic

York
fraud

state

occurred

resulting in the French Judgments.’”
¶ 61)

(internal

plaintiff,

quotation

these

court] . . .

marks

in

the

that

‘[n]o

adjudication

Id. at 8 (quoting Compl.
omitted).

misrepresentations

According

justify

to

personal

jurisdiction under section 302(a)(2) because they were made by
agents of Mr. de Ganay in New York and “were the sine qua non of
the

injury

to

plaintiff:

without

recognition

of

the

French

decrees by the New York courts, those decrees would not have
force and effect and the divorce action commenced by plaintiff
in New York would not have been dismissed.”

Id.

Plaintiff’s argument is unconvincing, for three reasons.
First, although Mr. de Ganay had argued in his opposition to
plaintiff’s motion for default judgment that we lacked personal
jurisdiction, indeed, specifically that we lacked jurisdiction
under section 302(a)(2), plaintiff opted not to submit a reply
brief.

In light of plaintiff’s failure to avail herself of that

opportunity,

it

is

not

clear

that

she

may

assert

her

jurisdictional arguments now in a motion for reconsideration.
Plaintiff

certainly

has

not

demonstrated

that

her

present

7
arguments could not have been raised in briefing her motion for
default judgment.
Second,

even

putting

aside

the

above

concern,

reconsideration is not warranted because plaintiff has not shown
that we overlooked allegations that would have led us to reach a
different outcome.

As discussed above, CPLR section 302(a)(2)

provides for personal jurisdiction only when plaintiff’s cause
of action arises from a tortious act committed by defendant in
New

York.

plaintiff’s

However,
complaint

the

single

cause

for

common

is

of

action

law

committed by defendants against French courts.

asserted

fraud

in

allegedly

See Compl. ¶ 80

(“The misrepresentations and material omissions described above
were made with the intent to induce reliance by French Courts to
the detriment of plaintiff.”); id.

¶ 81 (“The French Courts

relied on the above representations to plaintiff’s detriment by,
among other things, issuing orders that deprived plaintiff of
valuable property.”).

Even if plaintiff’s complaint contains

allegations that might have supported a cause of action for
fraud against state and federal courts in New York, plaintiff
did not assert such a claim.4

4

Because plaintiff does not assert

Although the pleadings of a pro se plaintiff “should be liberally construed
to raise the strongest argument that [they] suggest[ ],” Williams v. United
States, Nos. 09 Civ. 2179 (NRB), 00 Cr. 1008 (NRB), 2013 WL 239839, at *2
(S.D.N.Y. Jan. 23, 2013) (alterations in original) (quoting Voss v. United
States, 360 F. App'x 239, 240 (2d Cir. 2010)) (internal quotation marks
omitted), we need not liberally construe plaintiff’s complaint because
plaintiff was represented by counsel at the time she filed her complaint.

8
a cause of action that arises from a tortious act committed by
defendants

in

New

York,

section

302(a)(2)

does

not

support

personal jurisdiction over defendants.
Third, even looking past how plaintiff formally framed her
claim, a brief review of plaintiff’s allegations reveals that
the alleged misrepresentations occurred in France, not New York.
According to plaintiff, defendants told two different stories to
French courts and to state and federal courts in New York.
French

courts,

apartment

was

plaintiff

defendants
not

would

the

not

allegedly

parties’

receive

the

argued

marital
personal

within it under her prenuptial agreement.

that

the

residence,
property

so

To

Paris
that

contained

To New York courts,

by contrast, defendants allegedly argued that the apartment was
the parties’ marital residence, so that New York courts would
grant

comity

to

the

French

divorce

judgment.

Plaintiff’s

position is that the Paris apartment was, in fact, her and her
ex-husband’s marital residence.

Under her theory, therefore,

defendants lied to French courts, but told the truth to New York
courts.

Thus, assuming arguendo that plaintiff’s allegations

are true, defendants’ statements to New York courts were not
false or misleading.

Moreover, for that reason, it makes sense

Thus, we may evaluate plaintiff’s single cause of action as it was pleaded,
which, as discussed above, asserts fraud only against French courts.

9
that

plaintiff

pleaded

her

cause

of

action

for

fraud

based

solely on defendants’ statements in France.5
In short, CPLR section 302(a)(2) does not support personal
jurisdiction over defendants because plaintiff’s cause of action
does not arise from tortious acts committed by defendants in New
York.

Therefore, our Memorandum and Order of December 6, 2012,

correctly found that we do not have personal jurisdiction, and
plaintiff has not met her burden of showing that we overlooked
allegations that would have led us to a contrary result.
IV. Conclusion
For

the

reasons

stated

reconsideration is denied.

above,

plaintiff’s

motion

for

This Memorandum and Order resolves

docket entry no. 25.

5

In addition to allegedly arguing before New York courts that plaintiff and
her ex-husband were domiciled in France, defendants also allegedly stated
that “[n]o extrinsic or intrinsic fraud occurred in the adjudication
resulting in the French Judgments.’”
Compl. ¶ 61 (alteration in original).
Taking plaintiff’s allegations as true, this statement might qualify as a
misrepresentation by defendants in New York. However, even if so, the fact
remains that the only cause of action asserted by plaintiff in her complaint
was a fraud on French courts. As discussed above, given that plaintiff was
represented by counsel when she submitted her complaint, she may be held to
the legal theory she asserted.

10

SO ORDERED.

Dat

New York, New York

1 29,

2013

L4!~
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

11
Copies of
foregoing Memorandum
mailed on this date to the following:
plaintiff:
Frances Spence de Ganay
120 East 87th Street
New York, NY 10128
Counsel for Defendant Thi
John F. Lang, Esq.
Danielle Kiwak, Esq.
Law Offices of John F. Lang
60 East 42nd Street, Suite 4600
New York, NY 10165

and

Order

have

been