Persh v. Petersen

Filing 121

OPINION AND ORDER re: 117 MOTION for Reconsideration / Notice of Motion for Reconsideration, or, in the Alternative, for Certification of Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b). filed by Aldo Petersen. For the fo regoing reasons, Defendant's motion for reconsideration or, in the alternative, certification for interlocutory appeal is DENIED. The Clerk of Court is respectfully directed to close the motion at Docket No. 117. Defendants request for oral argument is denied as moot. (Signed by Judge Lorna G. Schofield on 10/4/2016) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
:
NEIL PERSH,
:
Plaintiff,
:
:
-against:
:
ALDO PETERSEN,
:
Defendant. :
:
------------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 10/4/2016

15 Civ. 1414 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Defendant Aldo Petersen moves for reconsideration of the Court’s September 13, 2016,
Opinion and Order denying Defendant’s motion for summary judgment. In the alternative,
Defendant moves for certification of an interlocutory appeal. Defendant’s motion is denied.
I.

BACKGROUND
Familiarity with the factual background and procedural history of this case is presumed.

The following facts are relevant to the disposition of this motion.1
Plaintiff Neil Persh and Defendant Aldo Petersen entered into business to acquire the
shares of three companies. They met in New York City on multiple occasions to discuss,
negotiate and finalize the acquisition. The deal hinged upon an oral currency exchange rate
agreement (the “CERA”) that the parties entered into with a third party, David Nemelka. Under
the CERA, Nemelka would provide a note in Danish Kroner that the parties agreed would not
cost Nemelka more than $4,000,000 United States Dollars (“USD”). If the note wound up
costing Nemelka more, Persh and Petersen would personally pay Nemelka the difference

1

As Defendant seeks reconsideration of his summary judgment motion, all factual disputes are
resolved and all reasonable inferences are drawn in Plaintiff’s favor. See, e.g., Wright v. N.Y.
State Dep’t of Corr., No. 15 Civ. 3168, 2016 WL 4056036, at *4 (2d Cir. July 29, 2016). 

between the amount paid and $4,000,000 USD. If Nemelka paid less than $4,000,000 USD, he
would pay Persh and Petersen the difference between the amount he paid and $4,000,000 USD.
Any payment that Nemelka owed to Persh and Petersen under the CERA was to be split equally
between Persh and Petersen. Millions of shares of one of the companies were held in escrow to
be released to Nemelka upon payment of the note.
New York attorney George Lander represented both Persh and Petersen individually in
creating the CERA. Persh and Nemelka later signed a written document containing the same
economic terms as the CERA and a number of other terms including a forum selection clause.
Petersen never signed the written agreement.
At issue is Persh’s claim that Petersen breached the CERA. Persh alleges that Petersen
was paid pursuant to the CERA, but cut Persh out of the arrangement by creating a “side deal”
with Nemelka. Petersen moved for summary judgment, arguing that: (1) there is no disputed fact
that would support a finding that Petersen breached the CERA and (2) the Court lacks personal
jurisdiction over Petersen, a resident of Denmark.
By Opinion and Order dated September 13, 2016, Petersen’s motion for summary
judgment was denied on both grounds. The Opinion held that a reasonable jury could find that
Petersen breached the CERA by failing to share with Persh a payment Petersen allegedly
received from Nemelka, based on three pieces of evidence: (1) Persh’s testimony that Petersen
released the escrowed shares to Nemelka, which could indicate that Petersen was paid everything
he was owed, (2) Persh’s testimony regarding first-hand knowledge of prior side deals conducted
by Petersen, including testimony that he personally aided Petersen with such deals, which could
demonstrate a pattern or practice by Petersen of a side deal with Nemelka to cut Persh out of the
deal and (3) Petersen’s testimony, later disavowed, that he received payment from Nemelka

2

under the agreement. The Opinion further held that Persh adduced evidence that, if credited,
would support the exercise of specific personal jurisdiction over Petersen, including Persh’s
testimony that: (1) Petersen participated in numerous meetings in New York City to structure and
finalize the acquisition, (2) at least one such meeting concerned the CERA and (3) Petersen
engaged the services of a New York attorney to personally represent him in connection with the
CERA.
II.

STANDARD
A. Motion for Reconsideration
The decision to grant or deny a motion for reconsideration rests within the “sound

discretion of the district court.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009). The standard
for granting a motion for reconsideration is “strict.” Analytical Surveys, Inc. v. Tonga Partners,
L.P., 684 F.3d 36, 52 (2d Cir. 2012). “A motion for reconsideration should be granted only
when the defendant identifies an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel
Mechil of Tarikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013). It is “not a
vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on
the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, 684 F.3d at 52.
B. Motion for Certification of an Interlocutory Appeal
A district court may certify an interlocutory appeal of a non-final order when the court is
“of the opinion that such order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Certification
under Section 1292(b) requires “exceptional circumstances justifying a departure from the basic
policy of postponing appellate review until after the entry of a final judgment.” Transp. Workers
3

Union of Am., Local 100, AFL–CIO v. N.Y.C. Transit Auth., 505 F.3d 226, 229 (2d Cir. 2007)
(internal quotation marks omitted). Certification is thus appropriate only in the small subset of
cases where “an intermediate appeal may avoid protracted litigation.” Koehler v. Bank of Berm.
Ltd., 101 F.3d 863, 866 (2d Cir. 1996). The ultimate decision of whether to certify an
interlocutory appeal “is entirely a matter of discretion for the district court.” In re Roman
Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 36 (2d Cir. 2014) (per curiam).
III.

DISCUSSION
A. Motion for Reconsideration

Defendant does not meet the strict standard for granting a motion for reconsideration.
Defendant’s primary argument is that the Court overlooked controlling law mandating Persh to
proffer hard evidence in response to Defendant’s motion for summary judgment. However,
Defendant has not pointed to any controlling decisions that the Court has overlooked. Instead,
Defendant reiterates the same arguments made in support of his motion for summary judgment,
and cites a number of additional cases articulating the same standard that the Court already
considered and applied in rejecting that motion. Nothing in these additional cases changes the
conclusion that Persh provided sufficient evidence to survive summary judgment. See, e.g.,
Urbont v. Sony Music Entm’t, No. 15 Civ. 1778, 2016 WL 4056395, at *9-10 (2d Cir. July 29,
2016) (reversing grant of summary judgment where plaintiff’s case was supported by plaintiff’s
testimony and additional circumstantial evidence).
Defendant further argues that the Court improperly relied on Persh’s testimony regarding
Defendant’s previous side deals because the testimony does not prove the existence of such deals
and is inadmissible propensity evidence. Defendant is incorrect. First, Persh’s testimony that he
personally aided Petersen in conducting similar side deals is sufficient proof of these deals at the

4

summary judgment stage. See Rentas v. Ruffin, 816 F.3d 214, 221 (2d Cir. 2016) (party entitled
to rely upon own testimony to establish claim at summary judgment). Second, Persh’s evidence
of Petersen’s other side deals may be admissible at trial, provided it shows a modus operandi and
is more probative than prejudicial. See, e.g., S.E.C. v. McGinnis, No. 5:14 Civ. 6, 2015 WL
5643186, at *13 (D. Vt. Sept. 23, 2015) (admitting evidence that defendant previously used “a
similar modus operandi” relevant to the issue of whether he “acted with similar knowledge and
intent, and used the same modus operandi” in the case at issue); see also United States v.
Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978) (finding evidence of alleged similar acts
inadmissible where they did not share “unusual characteristics . . . evidencing a unique scheme
or pattern.”) Under Rule 404(b), Fed. R. Evid., the introduction of other wrongful acts is
permitted for any relevant purpose other than to show propensity to commit the act in question.
See Ismail v. Cohen, 899 F.2d 183, 188 (2d Cir.1990); United States v. Brennan, 798 F.2d 581,
589 (2d Cir.1986). Drawing all inferences in favor of Plaintiff, the non-moving party, at the
summary judgment stage, Persh’s testimony may properly be considered as a part of the record
that creates an issue of fact on the question of whether Petersen received some payment from
Nemelka, which should have been shared with Plaintiff. See, e.g., United States v. Scott, 677
F.3d 72, 79 (2d Cir. 2012) (“This Circuit has adopted an ‘inclusionary’ approach to other act
evidence under Rule 404(b), which allows such evidence to be admitted for any purpose other
than to demonstrate criminal propensity.” (citation omitted)).
Defendant’s request for reconsideration on the question of personal jurisdiction is
similarly meritless. Persh testified that Petersen conducted business in New York related to the
oral agreement, and that Petersen conducted that business in his personal capacity. If credited,
this testimony would establish jurisdiction over Petersen regardless of the fiduciary shield

5

argument that Defendant reiterates in this motion. Defendant’s attempt to argue that the
unexecuted written agreement divests this Court of jurisdiction is nothing more than an attempt
to take another bite at the apple on an argument that has already been considered and rejected.
Consequently, Defendant’s motion for reconsideration is denied.
B. Motion for Certification of an Interlocutory Appeal
Defendant also fails to meet the requirements for certification of an interlocutory appeal.
Defendant does not even attempt to argue that an interlocutory appeal would materially advance
the ultimate termination of the litigation. In approximately two weeks, an evidentiary hearing on
the question of personal jurisdiction will be held, which will provide a final resolution on the
question of the Court’s jurisdiction over Petersen. Certification of personal jurisdiction
questions prior to an evidentiary hearing is “improvidently granted.” Koehler, 101 F.3d at 867.
Failure to demonstrate that certification of any of Defendant’s requested appeal questions will
materially advance the termination of the litigation defeats Defendant’s motion on its own.
Defendant also has failed to identify substantial grounds for a difference of opinion
regarding the Opinion and Order. Simple disagreement with the Court’s conclusions is
insufficient to justify an interlocutory appeal. See In re Flor, 79 F.3d 281, 284 (2d Cir.1996)
(mere presence of disputed issue insufficient to demonstrate substantial ground for difference of
opinion, even if issue is one of first impression). Lastly, not all of Defendant’s identified
questions would be controlling. Whether the Court can assert jurisdiction over Defendant for
actions he took as a corporate executive has no bearing on whether the Court has personal
jurisdiction over Defendant at summary judgment in light of Plaintiff’s testimony that Defendant
was acting in his personal capacity. Defendant has not met the three requirements for
certification of an interlocutory appeal, and as such, Defendant’s motion is denied.

6

IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for reconsideration or, in the alternative,

certification for interlocutory appeal is DENIED. The Clerk of Court is respectfully directed to
close the motion at Docket No. 117. Defendant’s request for oral argument is denied as moot.
Dated: October 4, 2016
New York, New York

7