Schwartz v. HSBC Bank USA, N.A.

Filing 70

OPINION AND ORDER. For the foregoing reasons, Plaintiff's motion, pursuant to Rules 59(e) and 15(a), and Local Civil Rule 6.3, to reopen this case and vacate the judgment, and also for reconsideration of Schwartz II or alternatively to grant Pla intiff leave to file a TAC nunc pro tunc is DENIED. SO ORDERED. re: 65 MOTION to Reopen Case . MOTION to Vacate 64 Clerk's Judgment, . MOTION for Reconsideration re; 63 Memorandum & Opinion, . MOTION to Amend/Correct 48 Amended Complaint, nunc pro tunc filed by Bruce Schwartz. (Signed by Judge Katherine Polk Failla on 6/19/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
BRUCE SCHWARTZ, individually and on
:
behalf of all others similarly situated,
:
:
Plaintiff,
:
:
v.
:
:
HSBC BANK USA, N.A.,
:
:
Defendant. :
:
------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: ______________
June 19, 2017

14 Civ. 9525 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
In an Opinion and Order dated January 9, 2017, the Court granted
Defendant HSBC Bank USA N.A.’s motion to dismiss Plaintiff Bruce Schwartz’s
Second Amended Complaint (the “SAC”). See Schwartz v. HSBC Bank USA,
N.A., No. 14 Civ. 9525 (KPF), 2017 WL 95118, at *1 (S.D.N.Y. Jan. 9, 2017)
(“Schwartz II”). On January 23, 2017, Plaintiff moved, pursuant to Federal
Rules of Civil Procedure 59(e) and 15(a), and Local Civil Rule 6.3, to reopen this
case and vacate the judgment entered on January 11, 2017, and also (i) for
reconsideration of Schwartz II; or, alternatively, (ii) for leave to file a Third
Amended Complaint (the “TAC”) nunc pro tunc. For the reasons that follow,
Plaintiff’s motion is denied in its entirety.

BACKGROUND 1
Plaintiff filed his original Complaint on December 1, 2014, and a First
Amended Complaint (the “FAC”) on March 27, 2015 (Dkt. #2, 12), alleging that
Defendant violated the Truth in Lending Act (“TILA” or the “Act”), 15 U.S.C.
§§ 1601-1677f, and its implementing regulations. In a February 9, 2016
Opinion and Order, the Court held, inter alia, that Plaintiff had sufficiently
stated a claim for violation of TILA disclosure requirements concerning penalty
annual percentage rates (or “APRs”). See Schwartz v. HSBC Bank USA, N.A.,
160 F. Supp. 3d 666, 681-82 (S.D.N.Y. 2016) (“Schwartz I”).
Following a February 23, 2016 conference, the Court stayed this action
pending the Supreme Court’s anticipated decision in Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016), which was issued on May 16, 2016, and revised on
May 24, 2016. Thereafter, the Court held a conference on June 9, 2016, and
set a schedule for the filing of the SAC and of Defendant’s Spokeo-based motion
to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1) (Dkt. #45, 49); that motion was fully briefed on
August 31, 2016 (Dkt. #51-54). On November 23, 2016, the Second Circuit
issued Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016), and this Court
granted the parties leave to submit supplemental letter briefs concerning the
effect, if any, of Strubel on the pending motion; the parties filed those briefs on
December 16, 2016. (Dkt. #59-60).

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For convenience, Plaintiff’s moving brief is referred to as “Pl. Br.” (Dkt. #66);
Defendant’s opposition brief as “Def. Opp.” (Dkt. #68); and Plaintiff’s reply brief as
“Reply Br.” (Dkt. #69).

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In Schwartz II, the Court dismissed this action for lack of subject matter
jurisdiction on the grounds that “Plaintiff [had] fail[ed] plausibly to plead the
concrete and particularized injury necessary to establish Article III standing.”
Schwartz II, 2017 WL 95118, at *4; id. at *7 (“[W]ell-pled allegations describing
Plaintiff's injuries are found nowhere in the SAC.”). Schwartz II began by
outlining the statutory and regulatory framework of TILA and Regulation Z,
including the disclosure provisions concerning interest-rate hikes for late
payments. Id. at *2-3. It next surveyed standing doctrine in light of Spokeo
and Strubel, paying special attention to the concreteness and particularization
requirements of the injury-in-fact element. Id. at *3-5. Finally, the Opinion
examined the SAC’s sparse, conclusory allegations of injury and concluded that
Plaintiff had “fail[ed] to carry his burden to clearly allege facts demonstrating a
concrete … [and] particularized injury to support standing.” Id. at *6-8; see id.
at *6 (“Mere incantations of ‘concrete harm’ and ‘material risk of concrete
harm,’ or of the purpose statement of TILA, are plainly insufficient to plead
plausibly that Plaintiff suffered a concrete injury.”); id. at *7 (“[The SAC’s]
allegations that Plaintiff personally and individually suffered an injury as a
result of those violations are conclusory and inadequately pled.”)
The Court also denied Plaintiff leave to file a TAC because Plaintiff never
sought leave to do so. See Schwartz II, 2017 WL 95118, at *8 (“Plaintiff has not
sought leave to amend his complaint a third time and, accordingly, the Court
affords him no such opportunity.” (citing Shields v. Citytrust Bancorp, Inc., 25
F.3d 1124, 1132 (2d Cir. 1994) (“Although federal courts are inclined to grant

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leave to amend following a dismissal order, we do not deem it an abuse of the
district court’s discretion to order a case closed when leave to amend has not
been sought.”))). The Court noted, however, that dismissal of the SAC was
without prejudice “because the dismissal [wa]s one for lack of subject matter
jurisdiction, which deprives the Court of its ability to issue a prejudicial
dismissal.” Id. (citing Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir.
2016); Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)).
Plaintiff filed the instant motion, supporting brief, and declaration on
January 23, 2017 (Dkt. #65-67); Defendant filed its opposition brief on
February 6, 2017 (Dkt. #68); and Plaintiff filed his reply brief on February 13,
2017 (Dkt. #69).
DISCUSSION
A.

Applicable Law
Federal Rule of Civil Procedure 59(e) allows a district court “to alter or

amend a judgment.” Fed. R. Civ. P. 59(e). “Generally, district courts will only
amend or alter a judgment pursuant to Rule 59 ‘to correct a clear error of law
or prevent manifest injustice.’” In re Assicurazioni Generali, S.P.A., 592 F.3d
113, 120 (2d Cir. 2010) (quoting Munafo v. Metro. Transp. Auth., 381 F.3d 99,
105 (2d Cir. 2004)). The rule “covers a broad range of motions,” and “the only
real limitation on the type of motion permitted is that it must request a
substantive alteration of the judgment, not merely the correction of a clerical
error, or relief of a type wholly collateral to the judgment.’” ING Glob. v. United
Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 96 (2d Cir. 2014) (internal

4

quotation marks omitted) (quoting Schwartz v. Liberty Mut. Ins. Co., 539 F.3d
135, 153 (2d Cir. 2008)).
A motion to alter or amend the judgment under Rule 59(e) is assessed
under the same standard as a motion for reconsideration under Local Civil
Rule 6.3. See Oocl (USA) Inc. v. Transco Shipping Corp., No. 13 Civ. 5418 (RJS),
2016 WL 4481153, at *1 (S.D.N.Y. Aug. 23, 2016); In re Evergreen Mut. Funds
Fee Litig., 240 F.R.D. 115, 117 (S.D.N.Y. 2007) (collecting cases). Both rules
“are meant to ‘ensure the finality of decisions and to prevent the practice of a
losing party examining a decision and then plugging the gaps of a lost motion
with additional matters.’” Cancel v. Kelly, No. 13 Civ. 6007 (JMF), 2016 WL
1559166, at *1 (S.D.N.Y. Apr. 15, 2016) (quoting Medisim Ltd. v. BestMed LLC,
No. 10 Civ. 2463 (SAS), 2012 WL 1450420, at *1 (S.D.N.Y. Apr. 23, 2012)); see
also Artists Rights Enf’t Corp. v. Estate of King, No. 16 Civ. 1121 (JPO), 2017
WL 2062988, at *1 (S.D.N.Y. May 15, 2017) (recognizing reconsideration as “an
extraordinary remedy to be employed sparingly in the interests of finality and
conservation of scarce judicial resources[.]” (citations omitted)).
A motion for reconsideration is governed by a “strict” standard and is
generally denied “unless the moving party can point to controlling decisions or
data that the court overlooked.” Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (internal citation omitted). Thus,
reconsideration is appropriate “only when the [movant] identifies [i] an
intervening change of controlling law, [ii] the availability of new evidence, or [iii]
the need to correct a clear error or prevent manifest injustice.” Kolel Beth

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Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir.
2013) (citation omitted); see also Bldg. Serv. 32BJ Health Fund v. GCA Servs.
Grp., Inc., No. 15 Civ. 6114 (PAE), 2017 WL 1283843, at *1 (S.D.N.Y. Apr. 5,
2017) (“A party seeking reconsideration ‘is not supposed to treat the court’s
initial decision as the opening of a dialogue in which that party may then use
such a motion to advance new theories or adduce new evidence in response to
the court’s rulings.’” (quoting De Los Santos v. Fingerson, No. 97 Civ. 3972
(MBM), 1998 WL 788781, at *1 (S.D.N.Y. Nov. 12, 1998)).
B.

Analysis
1.

Plaintiff’s Motion for Reconsideration Is Denied

Plaintiff’s motion falls short of the standard for reconsideration. He does
not identify “an intervening change of controlling law,” “the availability of new
evidence,” or “the need to correct a clear error.” Kolel Beth Yechiel, 729 F.3d at
104. He likewise does not “point to controlling decisions or data that the court
overlooked.” Analytical Surveys, 684 F.3d at 52. Rather, Plaintiff argues that
reopening this action and vacating the judgment “is necessary to avoid
manifest injustice, because Plaintiff can make a colorable argument as to why
reconsideration is appropriate.” (Pl. Br. 4).
Plaintiff presents two related arguments for reconsideration. He first
contends that “the ‘plausibility’ standard of pleading elaborated by the
Supreme Court in Iqbal simply does not apply to allegations concerning the
grounds of the Court’s subject matter jurisdiction.” (Pl. Br. 9; see generally id.
at 10-12). Next, Plaintiff argues that his complaint need not contain legal

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argument but only factual matter, and that the portions of his opposition
briefing cited by the Court in Schwartz II “[are] more akin to legal argument
than to factual matter and, thus, were not required to be included in Plaintiff’s
complaint.” (Pl. Br. 13-14).
Plaintiff fails to demonstrate why vacatur of the judgment in Schwartz II
is necessary to avoid manifest injustice. “The ‘manifest injustice’ standard is,
by definition, ‘deferential to district courts and provide[s] relief only in the
proverbial rare case.’” Corsair Special Situations Fund, L.P. v. Nat’l Res., 595 F.
App’x 40, 44 (2d Cir. 2014) (summary order) (quoting United States v. Rigas,
583 F.3d 108, 123 (2d Cir. 2009)); accord E.J. Brooks Co. v. Cambridge Sec.
Seals, No. 12 Civ. 2937 (LAP), 2015 WL 9704079, at *4 (S.D.N.Y. Dec. 23,
2015).
Plaintiff’s reconsideration arguments are flat-out wrong. For starters, the
Second Circuit has made clear that factual allegations going to the Court’s
subject matter jurisdiction should be not merely threadbare and conclusory,
but rather should be “affirmatively and plausibly” pled. Amidax Trading Grp. v.
S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per curiam); id. (“[The
plaintiff’s] general proposition standing alone, however, is insufficient to make
[the plaintiff’s] alleged injury in fact plausible. Rather, what is missing is
factual support for [the plaintiff’s allegation]. Only if such factual support
exists, can [the plaintiff] nudge its alleged injury from one that is conceivable to
one that is plausible.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009)); id. at
148 (“[B]ecause [the plaintiff] has not alleged more specific details …, [it] has

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not plausibly alleged that it suffered a concrete, particularized, and actual or
imminent injury-in-fact. … [F]or [the plaintiff] to have standing to sue, its
alleged injury in fact must be plausible.” (internal citations and quotation
marks omitted) (citing Iqbal, 556 U.S. at 679)); accord Carter v. HealthPort
Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016).
Courts in this District have followed suit. See, e.g., Clarex Ltd. v. Natixis
Sec. Am. LLC, No. 12 Civ. 0722 (PAE), 2012 WL 4849146, at *5 (S.D.N.Y.
Oct. 12, 2012) (“[A]lthough the Court ‘may consider affidavits and other
materials beyond the pleadings’ in deciding a 12(b)(1) motion, it ‘may not rely
on conclusory or hearsay statements contained in the affidavits.’ The standard
here is one of plausibility.” (quoting Mosdos Chofetz Chaim, Inc. v. Vill. Of
Wesley Hills, 701 F. Supp. 2d 568, 580-81 (S.D.N.Y. 2010)) (citing Amidax, 671
F.3d at 146 (“[F]or [the plaintiff] to have standing to sue, its alleged injury in
fact must be plausible.”)); see also Brach Family Found., Inc. v. AXA Equitable
Life Ins. Co., No. 16 Civ. 740 (JMF), 2016 WL 7351675, at *5 n.5 (S.D.N.Y.
Dec. 19, 2016) (recognizing that “it is the plaintiff’s burden to plausibly allege
facts that establish federal subject-matter jurisdiction” (citing Carter, 822 F.3d
at 56)).
Recently, the Second Circuit in Whalen v. Michaels Stores, Inc. affirmed
the dismissal of a claim for lack of standing where the plaintiff alleged, inter
alia, that the defendant’s data breach caused her injury in the form of time and
money she spent monitoring her credit. See No. 16-260, 2017 WL 1556116, at

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*2 (2d Cir. May 2, 2017) (summary order). The Court rejected this basis of
injury as insufficiently pled and conclusory:
[The plaintiff] pleaded no specifics about any time or
effort that she herself has spent monitoring her credit.
Her complaint alleges only that “consumers must
expend considerable time” on credit monitoring, and
that she “and the Class suffered additional damages
based on the opportunity cost and value of time that
[she] and the Class have been forced to expend to
monitor their financial and bank accounts.” She did
not seek leave to amend her complaint to add anything
more substantial. Accordingly, she has alleged no
injury that would satisfy the constitutional standing
requirements of Article III, and her claims were properly
dismissed.
Id. at *2. And just two weeks ago in John v. Whole Foods Market Group, Inc.,
the Second Circuit again confirmed that a plaintiff must “plausibly alleg[e]” an
injury in order to have Article III standing. See No. 16-986-cv, 2017 WL
2381191, at *2-3 (2d Cir. June 2, 2017). Ultimately, the Circuit found that the
plaintiff had satisfied this standard. Id. at *3-4.
The Court will not here repeat Schwartz II’s explication of how the SAC
fails affirmatively and plausibly to allege a concrete and particularized injury in
support of Plaintiff’s standing and why the SAC’s conclusory and threadbare
allegations are insufficient. See Schwartz II, 2017 WL 95118, at *4-6. The
Court stands by its reasoning and conclusion. 2

2

Until recently, the Second Circuit sometimes instructed courts to refrain from drawing
inferences at the pleading stage in favor of a plaintiff’s standing. See, e.g., Morrison v.
Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (“[A jurisdictional] showing
is not made by drawing from the pleadings inferences favorable to the party asserting
it.”); APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (same); Shipping Fin. Servs. Corp.
v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (same). Whole Foods Market Group appears
to have abrogated that rule, holding that “[w]hen the defendant asserts a ‘facial’
challenge to standing … courts should continue to draw from the pleadings all

9

Plaintiff’s related argument for reconsideration is likewise rejected
because it is predicated on a misapprehension of Schwartz II to require legal
argument in his pleadings. Schwartz II does no such thing. The Opinion
evaluated the three assertions of injury in the SAC and found these allegations
to be conclusory and insufficient. See Schwartz II, 2017 WL 95118, at *4-6.
The Court need not have gone further, but offered excerpts of Plaintiff’s
opposition and supplemental briefs as merely indicative of the kind of specifics
lacking in the SAC, including for example the nature of the harm that Plaintiff
himself suffered or was at risk of suffering — in other words, factual allegations
tending to show that the injury affected Plaintiff in a “personal and individual
way,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992), and that the
injury “actually exist[ed],” Spokeo, 136 S. Ct. at 1548, and “present[ed] a ‘risk
of real harm’ to [Plaintiff’s] concrete interest,” Strubel, 842 F.3d at 189 (quoting
Spokeo, 136 S. Ct. at 1549).
In short, Plaintiff fails to demonstrate that the Court committed error, let
alone “clear error,” or that vacatur of the judgment and reconsideration is
needed to “prevent manifest injustice.” In re Assicurazioni Generali, S.P.A., 592
F.3d at 120. Accordingly, Plaintiff’s motion pursuant to Rule 59(e) and Local
Civil Rule 6.3 is denied.

reasonable inferences in the plaintiff’s favor and are to presume that general allegations
embrace those specific facts that are necessary to support the claim.” John v. Whole
Foods Mkt. Grp., Inc., No. 16-986-cv, 2017 WL 2381191, at *4 (2d Cir. June 2, 2017)
(internal quotation marks omitted). This does not alter the Court’s analysis in Schwartz
II because Plaintiff’s three conclusory allegations of injury are inadequate, even drawing
all reasonable inferences in Plaintiff’s favor. See Schwartz II, 2017 WL 95118, at *4-6.

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2.

Plaintiff’s Motion for Leave to Amend the SAC Is Denied

Plaintiff argues that “even if the Court declines to reconsider its Opinion
and Order, vacating the judgment is necessary to avoid manifest injustice
because, under these circumstances, Plaintiff should be granted an
opportunity to file a [TAC]” and “his failure to cross-move for permission to file
a [TAC] should be excused.” (Pl. Br. 5-6).
Here too, Plaintiff falls short of demonstrating why vacatur is necessary
to prevent manifest injustice. His failure to establish a Rule 59(e) basis to set
aside or vacate the judgment dooms his motion for leave to amend the SAC.
Generally, leave to amend should be “freely give[n] … when justice so requires.”
Fed. R. Civ. P. 15(a)(2). “However, amendment of a complaint becomes
significantly more difficult when a plaintiff waits … until after judgment has
been entered.” Janese v. Fay, 692 F.3d 221, 229 (2d Cir. 2012); see also State
Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 418
(2d Cir. 1990) (“When the moving party has had an opportunity to assert the
amendment earlier, but has waited until after judgment before requesting
leave, a court may exercise its discretion [to grant leave to amend] more
exactingly.”). Indeed, “‘[o]nce judgment is entered the filing of an amended
complaint is not permissible until judgment is set aside or vacated pursuant to
Fed. R. Civ. P. 59(e) or 60(b).’” Id. (quoting Nat’l Petrochemical Co. of Iran v.
M/T Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991) (alterations omitted)); accord
Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (“A party seeking to file

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an amended complaint postjudgment must first have the judgment vacated or
set aside pursuant to Fed. R. Civ. P. 59(e) or 60(b).”).
In Janese, the plaintiffs, following the district court’s entry of judgment,
unsuccessfully moved for reconsideration of the court’s dismissal of their
complaint and for leave to amend in order to assert their claims with greater
particularity. See Janese, 692 F.3d at 225. On appeal, the Second Circuit
rejected the plaintiffs’ argument that the district court had erred in denying
them leave to amend. Id. at 229.
The Circuit reaffirmed the principle that the post-judgment filing of an
amended complaint is impermissible “until judgment is set aside or vacated
pursuant to Fed. R. Civ. P. 59(e) or 60(b),” reasoning that “‘[t]o hold otherwise
would enable the liberal amendment policy of Rule 15(a) to be employed in a
way that is contrary to the philosophy favoring finality of judgments and the
expeditious termination of litigation.’” Id. (quoting Nat’l Petrochemical Co. of
Iran, 930 F.2d at 245 (quoting 6 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1489, at 694 (1990))). Accordingly, the Circuit
described the district court’s denial of reconsideration as having “render[ed] the
motion to amend moot” and concluded that the lower court had “properly
denied the motion to amend following its denial of the motion for
reconsideration.” Id. at 225, 229; accord Smith v. Hogan, 794 F.3d 249, 256
(2d Cir. 2015) (“[The plaintiff] sought leave to replead only after judgment had
been entered. Because he did not succeed in having the judgment vacated, he

12

was not entitled to replead at this stage of the case.” (citing Nat’l Petrochemical
Co. of Iran, 930 F.2d at 244-45)), cert. denied, 137 S. Ct. 566 (2016).
Here, Plaintiff has failed to demonstrate a basis to set aside or vacate the
judgment, as described above. Accordingly, his motion for leave to file a TAC is
denied. 3

3

Plaintiff indirectly cites the Second Circuit’s 2011 decision in Williams v. Citigroup Inc.,
659 F.3d 208 (2d Cir. 2011) (per curiam), for the proposition that allowing a party to file
an amended pleading can itself be a reason to vacate the judgment. (Reply Br. 4; see
also Pl. Br. 3 n.10). Williams vacated the district court’s denial of a post-judgment
motion for leave to replead because the lower court had “applied a standard that
overemphasized considerations of finality at the expense of the liberal amendment
policy embodied in the Federal Rules of Civil Procedure.” Id. at 210. The Circuit
acknowledged that “[w]here … a party does not seek leave to file an amended complaint
until after judgment is entered, Rule 15’s liberality must be tempered by considerations
of finality,” but also observed that “considerations of finality do not always foreclose the
possibility of amendment, even when leave to replead is not sought until after the entry
of judgment.” Id. at 213.
Insofar as the Second Circuit’s 2011 decision in Williams may be read to be in tension
on this specific point with the Circuit’s 2012 decision in Janese and 2015 decision in
Smith, noted above, the Court conforms to the Circuit’s more recent pair of precedents.
But even under Plaintiff’s reading of Williams, Plaintiff’s motion would still be denied:
He has failed to demonstrate why granting him leave to replead with greater specificity
is necessary to avoid a manifest injustice. Cf. Ciralsky v. C.I.A., 355 F.3d 661, 673
(D.C. Cir. 2004) (“We also cannot find that the district court abused its discretion in
concluding that manifest injustice does not exist where, as here, a party could have
easily avoided the outcome[.]” (internal quotation marks omitted)). Plaintiff describes
Article III standing as a “quickly developing area of law” and principally argues that it
would have been difficult to predict that he was required to include the kind of detail
missing in the SAC. (Pl. Br. 14). But Plaintiff’s reasons do not support a finding of
manifest injustice in the Court’s decision to dismiss the SAC without prejudice. Indeed,
Plaintiff’s uncertainty about the necessary factual allegations can also cut the other
way; it should have counseled in favor of his having sought leave to amend prejudgment.
Thus, even recognizing that “the liberal spirit of Rule 15 [does not] necessarily dissolve[]
as soon as final judgment is entered,” Williams, 659 F.3d at 214, the Court additionally
finds that leave to amend is appropriately denied because of Plaintiff’s undue delay in
seeking such leave and because Plaintiff has failed to take advantage of multiple
opportunities to cure the deficiencies in the complaint. See Foman v. Davis, 371 U.S.
178, 182 (1962). The Complaint was originally filed in December 2014, it has been
twice amended, and opportunities to seek leave to amend have existed both before and
after the 2016 decisions in Spokeo and Strubel. Indeed, Plaintiff’s burden to plead
allegations of injury affirmatively and plausibly long predated this Court’s decision in
Schwartz II. See, e.g., Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d
Cir. 2011) (per curiam); Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016);
Clarex Ltd. v. Natixis Sec. Am. LLC, No. 12 Civ. 0722 (PAE), 2012 WL 4849146, at *5
(S.D.N.Y. Oct. 12, 2012). In light of Plaintiff’s delay in seeking to cure his pleading

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion, pursuant to Rules 59(e) and
15(a), and Local Civil Rule 6.3, to reopen this case and vacate the judgment,
and also for reconsideration of Schwartz II or alternatively to grant Plaintiff
leave to file a TAC nunc pro tunc is DENIED.
SO ORDERED.
Dated:

June 19, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

deficiencies despite multiple opportunities, the Court denies him leave to file a TAC
nunc pro tunc.

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