Geo-Group Communications, Inc. v. Goldberg et al

Filing 295

OPINION AND ORDER re: 276 LETTER MOTION for Extension of Time Motion seeks an Order Denying the Chand/LLC Defendants' October 18, 2019 Letter Request for an Extension of the September 10, 2019 Briefing Schedule (Dk. 269 as modified by Dk . 271) addressed to filed by Geo-Group Communications, Inc., 272 MOTION to Reopen re: 269 Memo Endorsement, Set Deadlines, 271 Order on Motion for Extension of Time, Motion to Reopen Case Against the LLC Defendants and Mahendra Shah, to Join Sanjiv Chand as a Defendant, to file Amended and Supple filed by Geo-Group Communications, Inc. For the foregoing reasons, Plaintiff's motion to reopen the case as to 728 Melville Petro LLC, Kedis Enterprises LLC, JMVD Hi llside LLC, and Mahendra Shah is DENIED; Plaintiff's motion to join Sanjiv Chand is DENIED; and Plaintiff's motion to file a Fourth Amended Complaint is DENIED. The Clerk of Court is directed to terminate the motions pending at docket entri es 272 and 276. The parties remaining in the case are directed to submit a joint letter to the Court on or before October 23, 2020, discussing their availability for trial in the second half of 2021 and, as appropriate, any interest in alterna tive dispute resolution of this matter. The Clerk of Court is directed to mail a copy of this Opinion and Order to Defendants Vipin Shah and Mahendra Shah. (Signed by Judge Katherine Polk Failla on 9/25/2020) (mro) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GEO-GROUP COMMUNICATIONS, INC.,
Plaintiff,
-v.-

15 Civ. 1756 (KPF)
OPINION AND ORDER

VIPIN SHAH,
Defendant.
KATHERINE POLK FAILLA, District Judge:

On October 4, 2019, after more than four and a half years of litigation,
Plaintiff Geo-Group Communications, Inc. (“Geo-Group”) moved to reopen its
case against previously-dismissed Defendants 728 Melville Petro LLC
(“Melville”), Kedis Enterprises LLC (“Kedis”), JMVD Hillside LLC (“JMVD,” and
together with Melville and Kedis, the “LLC Defendants”), and Mahendra Shah
(“M. Shah”); to join non-party Sanjiv Chand (“Chand,” and together with the
LLC Defendants and M. Shah, “Respondents”); and to file a fourth amended
complaint. Specifically, Plaintiff seeks:
i.

Reconsideration of the Court’s prior orders
dismissing the LLC Defendants and granting
summary judgment in favor of M. Shah, pursuant
to Fed. R. Civ. P. 54(b);

ii.

Leave to file a fourth amended complaint,
pursuant to Fed. R. Civ. P. 15(a)(2), to assert
claims (i) against the LLC Defendants for
fraudulent conveyance under New York Debtor
and Creditor Law (“NYDCL”) §§ 273, 274, 276,
and (ii) against M. Shah for fraud on the Court
and fraudulent conveyance under NYDCL § 276;
and

iii.

Addition of Chand as a defendant in this action,
pursuant to Fed. R. Civ. P. 15(a), 15(d), 20(a)(2),
and 21, in order to assert against him claims for
fraud on the Court and fraudulent conveyance
under NYDCL § 276.

As made clear by its docket number, this case has been pending for
years, and the underlying allegations and factual disputes raised in the instant
motions have been addressed by this Court in two previous Opinions. See GeoGrp. Commc’ns, Inc. v. Chopra, No. 15 Civ. 1756 (KPF), 2018 WL 3632498, at *4
(S.D.N.Y. July 30, 2018) (“Geo-Group III”); Geo-Grp. Commc’ns, Inc. v. Chopra,
No. 15 Civ. 1756 (KPF), 2016 WL 4098552, at *5-7 (S.D.N.Y. July 27, 2016)
(“Geo-Group II”). Undaunted by this procedural history, Plaintiff argues that
new evidence outlined herein gives these allegations renewed life. However, for
the reasons set forth in this Opinion, the Court finds that the interests of
finality, coupled with Plaintiff’s unreasonable delay in seeking this relief after
years of litigation, compel the Court to deny Plaintiff’s motions.
BACKGROUND 1
A.

Factual Background
1.

The Parties and the Instant Litigation

This case arises out of an attempt by Plaintiff to enforce an arbitration
award against Jaina Systems Network, Inc. (“Jaina”). Plaintiff Geo-Group is a
1

The facts recounted herein are drawn in the first instance from the parties’ submissions
in connection with the instant motion. The exhibits attached to Govind Vanjani’s
Declaration in Support of Plaintiff’s Motion to Reopen are referred to as “Vanjani Decl.,
Ex. [ ]” (Dkt. #273), and the exhibits attached to Govind Vanjani’s Reply Declaration in
Support of Plaintiff’s Motion to Reopen are referred to as “Vanjani Reply Decl., Ex. [ ]”
(Dkt. #289). Plaintiff’s moving brief is referred to as “Pl. Br.” (Dkt. #274); Respondents
Chand and the LLC Defendants’ joint brief in opposition is referred to as “LLC Opp.”
(Dkt. #283); Respondent M. Shah’s brief in opposition is referred to as “M. Shah Opp.”
(Dkt. #284); and Plaintiff’s reply is referred to as “Pl. Reply” (Dkt. #288). The transcript

2

telecommunications company that was in the business of buying minutes from
carriers and reselling those minutes to an array of customers. (Vanjani MSJ
Decl. ¶ 6). Non-party Jaina was a customer of Geo-Group. (Id. at ¶ 7). Former
Defendant M. Shah was, during the relevant time period, president of Jaina
and a 25% shareholder. (M. Shah MSJ Aff. ¶¶ 1, 11(b)). Plaintiff alleges that
non-party Chand owns and controls the LLC Defendants (Vanjani Decl. ¶ 5),
and, further, that Chand and the LLC Defendants were involved in a series of
fraudulent transactions with Jaina in 2014 (id. at ¶¶ 6-7). Vipin Shah
(“V. Shah”) is the last remaining Defendant in the instant litigation; he is also
M. Shah’s brother. (V. Shah MSJ Aff. ¶ 3).
The arbitration against Jaina commenced on May 30, 2013; Plaintiff
prevailed in that proceeding on July 10, 2014; and the award was confirmed by
the New York State Supreme Court, New York County, which issued judgment
on April 3, 2015, in the amount of $2,712,175.51. (Chopra 56.1 ¶¶ 8-10). On
March 9, 2015, after Jaina failed to satisfy that judgment and settlement

of the deposition of M. Shah is referred to as “M. Shah Dep.” (Vanjani Decl., Ex. 7); the
transcript of the deposition of V. Shah is referred to as “V. Shah Dep.” (Vanjani Decl.,
Ex. 32); and the transcript of the Deposition of Ravi Chopra is referred to as “Chopra
Dep.” (Dkt. #221, Ex. F-G). The transcript of the July 25, 2017 conference is referred to
as “July 25, 2017 Tr.” (Dkt. #172); the transcript of the November 19, 2018 conference
is referred to as “Nov. 19, 2018 Tr.” (Dkt. #253, Ex. A); and the transcript of the June
26, 2019 conference is referred to as “June 26, 2019 Tr.” (Dkt. #264).
The Court has also considered materials submitted by the parties in connection with
the prior motions for summary judgment; references to those materials are made using
the citing conventions identified in Geo-Group III, See 2018 WL 3632498, at *1 n.2.
Finally, the Court has considered submissions made in connection with non-party
Williston Park Realty LLC’s (“Williston Park”) earlier motion to quash Plaintiff’s
subpoena. The motion itself is referred to as “Motion to Quash” (Dkt. #174); the
exhibits attached to Joseph Vogel’s Declaration in Support of the Motion to Quash are
referred to as “Vogel Decl., Ex. [ ]” (Dkt. #175); and Philip J. Loree, Jr.’s Declaration in
Opposition to the Motion to Quash is referred to as “Loree Quash Decl.” (Dkt. #180).

3

negotiations failed, Plaintiff initiated the instant suit. (Dkt. #1). After nearly a
year of extensive motion practice and litigation, on February 22, 2016, Plaintiff
filed its Third Amended Complaint (or “TAC”), alleging that the LLC Defendants,
M. Shah, and V. Shah, inter alia, were the recipients or beneficiaries of a series
of fraudulent conveyances from Jaina. (See generally Dkt. #105 (TAC)). A key
point of contention concerns whether certain transfers from Jaina’s accounts
to various third parties were made to satisfy antecedent loan debts, as
Respondents argue, or whether they constituted actual or constructive
fraudulent transfers, as Plaintiff contends.
2.

The Neminath Transactions

The instant motions focus on one particular series of transfers and one
specific putative antecedent debt. By way of a January 18, 2013 Commercial
Loan Agreement (the “CLA”), one of the LLC Defendants, Kedis, loaned nonparty Neminath, Inc. (“Neminath”) $600,000. (Vanjani Decl., Ex. 4). The loan
was secured by a building that Neminath owned, located at 235 Hillside
Avenue, Williston Park, New York (the “Building”), and the mortgage was
recorded with the Nassau County Clerk. (Id. at Ex. 4-5). Pursuant to the CLA,
Neminath was to pay Kedis 15% annual interest on the loan. (Id. at Ex. 4).
Chand signed the CLA on behalf of Kedis, and M. Shah signed on behalf of
Neminath. (Id.). The loan was personally guaranteed by M. Shah, V. Shah,
and their spouses. (Id.). 2 A wire transfer receipt shows that on January 22,

2

At the time that Neminath and Kedis executed the CLA, M. Shah owned 5% of
Neminath, his spouse Pooja Shah owned 45%, V. Shah owned 5%, and his spouse
Nayana Shah owned 45%. (V. Shah Dep. 27, 29). Plaintiff alleges that as of April 1,

4

2013, Kedis transferred $600,000 to Neminath. (Siddiqi Decl., Ex. C-18; see
also Vanjani Decl., Ex. 6 (Neminath bank statement)).
Respondents maintain that the money Kedis loaned to Neminath was
intended to be used — and was in fact used — for Jaina’s benefit. (LLC Opp. 7;
M. Shah Opp. 11). To that end, it is claimed, Neminath transferred a portion of
the $600,000 to Jaina between January 22, 2013, and February 6, 2013.
(Vanjani Decl., Ex. 6). 3 Respondents further state that (i) all parties involved in
this series of transactions (the “Neminath Transactions”) understood that
Jaina, rather than Neminath, would repay this loan, and (ii) Chand
subsequently assigned Kedis’s right to collect on the loan to two other LLC
Defendants, Melville and JMVD. (LLC Opp. 7; M. Shah Opp. 11).
Ravi Chopra, a previous Defendant in this action, corroborated the
assertion that the Neminath Transactions were made for Jaina’s benefit:
Chopra testified at his deposition that he was approached by Jagdish Alwani,
Jaina’s accountant, who was looking for financing for Neminath to use for the
benefit of Jaina. (Chopra Dep. 45:19-52:23). Chopra testified that Jaina
needed money quickly and that it was chronically short on cash. (Id.). Chopra
understood that because Neminath had a building to put up as collateral,

2017, M. Shah “transferred complete ownership and Corporate Stock share ownership
of Neminath Inc.” to V. Shah and Nayana Shah, each with a 50% ownership interest.
(Vanjani Decl., Ex. 33).
3

Plaintiff alleges that Neminath transferred only $530,000 to Jaina (see Pl. Br. 3; but see
Pl. Chopra 56.1 Opp. ¶ 81 (admitting that Neminath transferred $570,000 to Jaina)),
while Respondents have set the amount transferred by Neminath to Jaina at $570,000
(see M. Shah Opp. 11). For purposes of resolving this motion, the precise amount
Neminath transferred to Jaina is immaterial.

5

Alwani and Jaina’s CEO, Surajit Bose (“S. Bose”), decided to seek funding
using Neminath that they could then transfer to Jaina. (Id.). Chopra testified
that he received a broker’s fee for helping to arrange the loan with Chand. (Id.
at 62:4-15, 77:21-24). For its part, Plaintiff strongly disputes the assertion
that Kedis assigned its right to collect to the LLC Entities. (Pl. Br. 4). Plaintiff
also disputes that the loan between Kedis and Neminath was done for Jaina’s
benefit, even though Plaintiff previously admitted this fact on summary
judgment, see Geo-Group III, 2018 WL 3632498, at *4 (citing Pl. Chopra 56.1
Opp. ¶¶ 80-81) 4; the Court understands Plaintiff’s change of heart to be
prompted by new evidence from non-party NRM Holdings, Inc. (“NRM”), which
evidence suggests to Plaintiff that Jaina was not as short on cash as
Respondents claim (see Pl. Br. 11-12).
3.

Jaina’s Transfers to the LLC Entities

On August 13, 2014, Jaina transferred $200,000 to JMVD; and in
October 2014, Jaina made a series of transfers totaling $460,000 to Melville.
(Vanjani MSJ Decl., Ex. Z). Respondents maintain that, pursuant to the
assignment agreement discussed above, Chand asked Jaina to send the loan
repayments directly to Melville and JMVD (together, the “LLC Transferees”).
(LLC Opp. 7; M. Shah Opp. 11). Thus, Respondents state, the $660,000 in
payments from Jaina to the LLC Transferees was made in satisfaction of the

4

Because of a typographical error in Plaintiff’s opposition to Chopra’s Local Rule 56.1
Statement, the numbers after Paragraph 79 of Plaintiff’s submission are off by one
number. The Court endeavors to correct this problem when citing to Plaintiff’s
opposition, and will use the number of the corresponding paragraph in Chopra’s
statement.

6

debt incurred under the CLA and were done for fair consideration. (LLC
Opp. 8; M. Shah Opp. 11).
Plaintiff disagrees. In the TAC, Plaintiff alleged that Jaina’s transfer of
this $660,000 to the LLC Transferees was done without fair consideration and
was therefore actually or constructively fraudulent. (TAC ¶¶ 37-58). In
support, Plaintiff points to Neminath’s 2014, 2015, and 2016 tax returns,
which appear to show an outstanding $600,000 loan receivable due and owing
from Jaina even after these transfers were made. (See Vanjani Decl. ¶¶ 44.n,
52). Plaintiff also construes Neminath’s tax returns and bank statements to
suggest that Neminath continued to pay interest to Kedis on the loan, even
after Jaina supposedly discharged the debt. (Id. at ¶ 44.k-m; see also id. at Ex.
6, 8-12 (Neminath bank statements and tax returns)). Plaintiff raised
essentially this same argument in opposition to Defendants’ motions for
summary judgment (see Pl. MSJ Opp. 20-21), and much of the evidence just
cited has been submitted to the Court in support of previous motions (see, e.g.,
Pl. Chopra 56.1 Opp. ¶ 83 (citing Loree Quash Decl. ¶¶ 7-38); Loree Quash
Decl., Ex. A-E). However, Plaintiff proffers new evidence in the form of a
statement and some documents from Neminath’s accountant, Andrew Bose
(“A. Bose”), that Plaintiff contends supports its interpretation of Neminath’s
financial activity from 2013 until 2016. (Vanjani Decl. ¶¶ 68-74; see also id. at
Ex. 13-14; Vanjani Reply Decl., Ex. F). Specifically, in an email to Plaintiff’s
counsel, A. Bose stated that he understood that Neminath continued to pay
interest to Kedis and to carry the outstanding loan to Kedis on its books up
7

until early 2016. (Vanjani Decl., Ex. 13). A. Bose sourced this knowledge to
information given to him by the Shah brothers. (Id.). Working backwards from
Bose’s statement, Plaintiff now interprets Neminath’s ledgers and bank
statements to show regular interest payments to Kedis through March 2015.
(Vanjani Reply Decl., Ex. E-G).
4.

Neminath’s Sale of the Building

On January 14, 2016, Neminath sold the Building to non-party Williston
Park Realty, LLC (“Williston Park”). (Vanjani Decl., Ex. 22). Respondents
assert that Neminath sold this property to Williston Park in an arm’s-length
transaction for $425,000. (Chand Opp. 20-22). Plaintiff, however, alleges that
Williston Park is secretly controlled by Chand, and that Neminath actually sold
the Building for $1,025,000, comprising $425,000 in cash plus a $600,000
discount to Williston Park for the purpose of discharging its debt to Kedis. (Pl.
Br. 4-5). Thus, argues Plaintiff, if the sale of the Building to Williston Park
discharged Neminath’s debt to Kedis, then Jaina’s payments to the LLC
Transferees were not made in satisfaction of an antecedent loan debt incurred
via the Neminath Transactions. (Id. at 5-6; see also Pl. Chopra 56.1 Opp.
¶ 83).
Here, too, Plaintiff cites evidence previously submitted to the Court,
including the deposition testimony of M. Shah and Neminath’s tax returns (see
Pl. MSJ Opp. 19-21; Pl. Chopra 56.1 Opp. ¶ 83; Loree Quash Decl., Ex. A-E);
publicly available information, such as the CLA filed with the Nassau County
Clerk’s Office (see, e.g., Loree Quash Decl., Ex. F; Vanjani Decl., Ex. 4, 5); and
8

evidence obtained from a subpoena of Williston Park that Plaintiff has
possessed since 2017 (see, e.g., Vanjani Decl., Ex. 22-26, 29, 31, 34). And
with this evidence, Plaintiff advances essentially the same arguments
previously made in opposition to various motions for summary judgment. (Pl.
MSJ Opp. 21). But Plaintiff also cites new evidence obtained from accountant
A. Bose — this time, a handwritten note that Plaintiff interprets to support its
allegation that the Building was sold for $1,025,000 and not $425,000.
(Vanjani Decl. ¶¶ 69-74; see also id. at Ex. 14). A. Bose states that the note
refers to the sale of the Building and that the information in the note came
from the Shah brothers. (Id. at ¶¶ 70, 73-74).
B.

Procedural History
This case has an especially complicated procedural history that is

discussed at length in several prior opinions, all of which are incorporated
herein by reference. See Geo-Group III, 2018 WL 3632498, at *1 (granting
motion for summary judgment in favor of prior Defendants M. Shah, Ravi
Chopra, and NYC Telecommunications Corp., but denying V. Shah’s motion for
summary judgment); Geo-Group II, 2016 WL 4098552, at *1 (granting LLC
Defendants’ motion to dismiss); Geo-Grp. Commc’ns, Inc. v. Chopra, No. 15 Civ.
1756 (KPF), 2016 WL 390089, at *1 (S.D.N.Y. Feb. 1, 2016) (“Geo-Group I”)
(granting motion to dismiss as to LLC Defendants, M. Shah, V. Shah, and
others, but allowing Plaintiff to file a third amended complaint). The Court
focuses in this Opinion on the facts and procedural history undergirding

9

Plaintiff’s motions to join Chand as a defendant and to reopen as to M. Shah
and the LLC Defendants.
In the TAC, Plaintiff alleged that Jaina’s transfer of $660,000 to the LLC
Defendants in 2014 violated the NYDCL because “there is no evidence” that the
sums paid to the respective LLC Defendants represented “fair value exchange[s]
for any goods, services, property or property rights,” or that they “were made to
discharge any legitimate antecedent loan or other debt Jaina” may have owed.
(TAC ¶¶ 37, 42-44, 49-50, 54-55, 58). Holding that Plaintiff had not
adequately alleged either the LLC Defendants’ bad faith or the lack of a fairvalue exchange, the Court dismissed Geo-Group’s claims against the LLC
Defendants by Order dated July 27, 2016. Geo-Group II, 2016 WL 4098552, at
*5-7. The Court explicitly considered allowing Plaintiff to file a fourth amended
complaint naming the LLC Defendants, but concluded that “[t]he TAC
represents Plaintiff’s fourth attempt at pleading; the Court will not offer it a
fifth, as the Court finds that any further attempt to replead the claims against
the dismissed [LLC Defendants] would be futile.” Id. at *10. The Court held
that Plaintiff had sufficiently pleaded claims against M. Shah, V. Shah, Ravi
Chopra, and NYC Telecommunications Corp. (“NYC Telecom”), a company
controlled by Chopra. Id.
On September 14, 2016, the remaining parties entered into a case
management plan that explicitly stated that “[a]mended pleadings may not be
filed and additional parties may not be joined except with leave of the Court.
Any motion to amend or to join additional parties shall be filed within 16 days
10

from the date of this Order.” (Dkt. #139). The case management plan set
January 31, 2017, as the fact discovery deadline, and the parties commenced
discovery on September 14, 2016. (Id.). Discovery was then stayed, due to the
automatic stay occasioned by the Shah brothers’ bankruptcy filings, from
January 27, 2017, until July 25, 2017, when the Court lifted the stay at a
conference. (See Dkt. #158; see generally July 25, 2017 Tr.). Upon lifting the
stay, the Court declined to enter a new scheduling order, and ordered only that
the close of fact discovery be extended to September 15, 2017. (July 25, 2017
Tr. 25:10-11). The Court cautioned the parties to “[u]se your time wisely and
please plan on the front-end perhaps to have these depositions [of the Shah
brothers] in the month of August so that you will have enough time to ask your
follow-up document production requests and [so] that you will be able to tell me
if there are discovery disputes.” (Id. at 25:11-15 (emphasis added)).
On August 11, 2017, Plaintiff deposed M. Shah and first learned the
facts underlying its current allegations regarding the Neminath Transactions
and the sale of the Building to Williston Park. (Pl. Br. 8). At his deposition,
M. Shah testified that Neminath sold the Building “[b]ecause we wanted to
pa[y] off Jaina’s debt, some of the lenders, you know, so that’s the reason that
we sold it[,]” and explained how Neminath received $425,000 in cash for the
sale of the Building, which was distributed by escrow. (M. Shah Dep. 33:439:7). M. Shah further testified that he understood that the Building was sold
to Chand or an entity owned or controlled by Chand. (Id. at 31:12-32:6).

11

M. Shah also informed Plaintiff that A. Bose, an accountant, prepared
Neminath’s tax returns. (Id. at 165:23-166:3-6).
To follow up on this information, Plaintiff served a subpoena on
Neminath on August 27, 2017, pursuant to Fed. R. Civ. P. 45, seeking
Neminath’s tax returns for tax years 2013-2016 and all of its bank statements.
((Dkt. #). #280, Ex. D (Neminath Subpoena)). That same day, Plaintiff also
served a subpoena pursuant to Fed. R. Civ. P. 30(b)(6) on Williston Park.
(Vogel Decl., Ex. 1-2). Specifically, Plaintiff sought documents and
information — including deposition testimony — from Williston Park related to,
inter alia: (i) its purchase of the Building from Neminath, and (ii) the identity
and ownership interests of Williston Park’s members and managers. (Id.,
Ex. 1). On September 11, 2017, Williston Park filed a motion to quash
Plaintiff’s subpoena. (Dkt. #174-178). Fact discovery closed on September 15,
2017. (July 25, 2017 Tr. 25:10-15). A week later, on September 22, 2017,
Plaintiff filed its opposition to the motion to quash, wherein Plaintiff averred
that its “goal in subpoenaing Williston Park Realty LLC,” was “not to ask the
Court [to] reopen the case against the LLC [Defendants] or to name Sanjiv
Chand as a defendant[,]” because “[i]t is too late for that, as the discovery cutoff has passed and this case is moving forward to trial.” (Loree Quash Decl.
¶ 6). Williston Park filed its reply on September 29, 2017 (Dkt. #183), and the
Court denied Williston Park’s motion to quash on October 16, 2017 (Dkt.
#187).

12

Shortly thereafter, on October 20, 2017, the Court set a briefing schedule
for summary judgment practice. (Dkt. #190). Meanwhile, Plaintiff took the
Rule 30(b)(6) deposition of Mariana Ramirez, Williston Park’s representative,
over the course of two hours on November 1, 2017. (Loree MSJ Decl., Ex. 12).
Chopra and NYC Telecom filed a joint motion for summary judgment on
December 8, 2017 (Dkt. #193-199); V. Shah filed his motion for summary
judgment on December 11, 2017 (Dkt. #200-202); and M. Shah filed his motion
for summary judgment on December 14, 2017 (Dkt. #207-209). Plaintiff filed a
consolidated response on January 30, 2018 (Dkt. #218-222), which response
included evidence obtained through the Williston Park subpoena (see, e.g.,
Loree MSJ Decl., Ex. 12), as well as extensive argument about the Neminath
Transactions and Neminath’s sale of the Building (Pl. MSJ Opp. 19-21; see also
Pl. Chopra 56.1 Opp. ¶ 83). Chopra and NYC Telecom filed reply papers on
February 28, 2018 (Dkt. #230-232); V. Shah filed a reply brief on March 14,
2018 (Dkt. #234-235); and M. Shah filed a reply brief on March 15, 2018 (Dkt.
#233). On July 30, 2018, the Court granted M. Shah’s, Chopra’s, and NYC
Telecom’s motions for summary judgment, but denied V. Shah’s motion for
summary judgment. Geo-Group III, 2018 WL 3632498, at *15.
On September 7, 2018, Plaintiff and V. Shah filed a joint letter
requesting a settlement conference (Dkt. #238), and the Court facilitated said
conference on October 10, 2018 (Minute Entry for October 10, 2018). On
October 19, 2018, more than a year after the close of fact discovery and more
than two years after the LLC Defendants had been dismissed from the case,
13

Plaintiff first announced its intention to “reopen the case against the [LLC
Defendants] and to make Mr. Chand a defendant” in a letter to the Court
describing its efforts to enlist V. Shah’s cooperation in exchange for settlement.
(Dkt. #240). Attached to Plaintiff’s letter was a 20-page document detailing the
extensive discovery requests that Plaintiff had elected not to pursue during the
fact discovery period in this case, but that Plaintiff now sought from V. Shah.
(Id. at Ex. B 44-64).
In a letter dated October 24, 2018, Plaintiff described additional efforts to
settle the case with V. Shah, noting that V. Shah had taken the position that
he could not provide the extensive discovery Plaintiff sought. (Dkt. #243). By
endorsement dated October 25, 2018, the Court acknowledged that the parties
remaining in the case had been unable to settle. (Dkt. #245). Of potential
significance to the instant motion, the Court rejected Plaintiff’s request to enter
a second or supplemental case management plan, and instead directed the
parties to provide their availability for trial. (Id.). With V. Shah’s cooperation
off the table, Plaintiff formally turned its attention to reconsideration of the
Court’s prior orders: In a November 2, 2018 letter to the Court — nominally
submitted to schedule the trial with V. Shah — Plaintiff requested that the
Court grant permission to pursue additional third-party discovery with the goal
of reopening the case as to M. Shah and the LLC Defendants and adding
Chand. (Dkt. #248).
On November 5, 2018, the Court set a pre-trial schedule and a trial date
to resolve Plaintiff’s remaining claims against V. Shah. (Dkt. #249). In
14

response, in a letter to the Court, Plaintiff again raised its request to seek
third-party discovery with the goals of: (i) reopening the case against M. Shah
and the LLC Defendants, (ii) adding Chand, and (iii) seeking additional
information relevant to V. Shah’s claims in preparation for the upcoming trial.
(Dkt. #250). Plaintiff specified that it sought discovery from “the following two
banks and three Jaina or Neminath Certified Public Accountants: Citibank,
Capital One Bank, CPA Harvinder Dhody, CPA Aqueel Khan, and CPA Andrew
Bose,” as well as from NRM Holdings, Inc., a company that Plaintiff alleged
extended a $2,500,000 letter of credit to Jaina. (Id.). The Court scheduled a
conference for November 19, 2018, to address Plaintiff’s requests. (Dkt. #251).
At the November 19, 2018 conference, the Court voiced its concern that
Plaintiff was “failing to perceive with sufficient alacrity ... that we are two
months away from trial” and noted that Plaintiff’s anticipated motion was “to
basically resurrect the case as to half the folks against whom it’s been
dismissed.” (Nov. 19, 2018 Tr. 7). The Court asked Plaintiff to explain why it
waited so long to request this relief, given that the LLC Defendants had been
dismissed from the case in 2016 and that Plaintiff had filed four complaints
without once naming Chand. (Id.).
Plaintiff conceded that it had known the facts motivating the instant
motion since at least August 2017, yet declined to raise the issue with the
Court until well after the Court’s July 2018 summary judgment decision:
THE COURT: But at no point during the summary
judgment — at no point prior to your letter to me or to
these discussions about settlement when we had this
settlement conference did you suggest that the chart
15

that [Plaintiff] prepared or the discussions about how
things were reflected in the [Neminath] tax returns were
reasons to bring back in the LLC defendants.
My concern, sir, is to the extent that there is an
application under Rule 59 or Rule 60, part of the
analysis is when did you have the information. And it
looks like you had the information in 2017. So you’re
asking me a year plus after you’ve had it to bring back
these other entities into the case. Yes?
MR. LOREE: The answer to that is yes.
(Nov. 19, 2018 Tr. 12). Plaintiff also acknowledged that nothing had prevented
it from seeking before the fact discovery deadline any of the discovery it now
sought (id. at 28), specifically admitting that it could have subpoenaed NRM,
the banks, and/or the Jaina and Neminath accountants prior to the discovery
cutoff, but chose not to due to time constraints (id. at 30-33, 35, 38). 5
Additionally, Plaintiff noted that it had been aware of missing documents from
Citibank at the close of fact discovery, but decided not to pursue those until
late 2018, after the Court’s decision on the motions for summary judgment.
(Id. at 38).
Plaintiff further conceded that its decision to delay raising these issues
was a strategic one, and that up until the abortive settlement discussions with
V. Shah, Plaintiff intended neither to move for reconsideration of the Court’s
prior decisions as to M. Shah and the LLC Defendants, nor to bring Chand into

5

At the November 19, 2018 conference, Plaintiff’s counsel speculated that he was not
aware of the identity of Andrew Bose, Neminath’s CPA, until he received Neminath’s tax
returns after the close of fact discovery. (Nov. 19. 2018 Tr. 33). However, the transcript
of M. Shah’s deposition demonstrates that Plaintiff was aware of A. Bose’s identity, and
of the fact that A. Bose prepared Neminath’s tax returns, as early as August 11, 2017.
(M. Shah Dep. 165:23-166:3-6).

16

the case, and instead planned to bring a separate suit against Chand and the
LLC Defendants after final judgment in the instant case. (Nov. 19, 2018 Tr. 1213).
THE COURT: ... But I feel as though you’ve kind of kept
these things in your pocket for the last year plus as
we’ve been resolving other issues and to have them
brought out now is something that causes me concern.
You’re saying to me, sir, that at the very time of the
motion to quash [the] Williston Park [subpoena] you let
me know that there was going to be an application at
some later date to make this without prejudice?
MR. LOREE: No. But what I did say, it was too late to
bring [Chand] in.
***
THE COURT: And I don’t know how it’s any less late to
bring him in now.
MR. LOREE: As we said, the only reason that we would
bring — we had a shift in the way we dealt with this was
because of the settlement conference.
(Id. at 16-17). Yet the 2016 dismissal of the LLC Defendants was with
prejudice, and despite purportedly planning to pursue a separate case against
them for the preceding two years, Plaintiff had never mentioned or moved for
reconsideration in order to have the dismissal be one without prejudice. (Id.).
Plaintiff also equivocated about whether it was asking the Court to
reopen discovery. Plaintiff framed its request as for subpoenas duces tecum for
production in V. Shah’s trial, but refused to foreswear the use of that
information against Chand, M. Shah, or the LLC Defendants. (Nov. 19, 2018
Tr. 28-29, 34). On December 18, 2018, the Court issued a scheduling order
17

adjourning the trial sine die in light of Plaintiff’s request to serve a series of
subpoenas well after the close of fact discovery. (Dkt. #255).
At a June 26, 2019 telephonic conference to discuss Plaintiff’s
outstanding motions, Plaintiff clarified that although some of the discovery
sought would be used for trial against V. Shah, much of the discovery sought
would be used for an anticipated motion to reopen the case against M. Shah
and the LLC Defendants, and for a motion to join Chand. (June 26, 2019
Tr. 4-6). Plaintiff also explained that it was aware of the missing discovery at
the close of fact discovery, and that although “we could have tried to get them
earlier, ... we were at that point thinking it was kind of late and we would like
to see if we can get by without them.” (Id. at 7 (emphasis added)). Plaintiff
stated that it failed to pursue this discovery because Plaintiff felt it had
sufficient evidence to survive summary judgment:
THE COURT: I think I understand that. But if I’m
recalling correctly, the case management plan in this
case was entered into — and the docket confirms it was
entered into in September of 2016. There were some
bumps in the road or some unusual features of this
discovery period because of the bankruptcy filing of the
Shahs during the pendency of discovery, but I guess a
concern that I have is that I don’t think I knew, I don’t
think you told me, Mr. Loree, until after the decision on
the summary judgment motion that there were these
gaps in discovery.
And I’m trying to figure out why I did not know, why I
was not told prior to then of the problems in discovery.
And it may be, sir, that you did not know at the time
that the summary judgment motion was filed, but that’s
really what I’m trying to figure out.
MR. LOREE: In terms of gaps in discovery, there was
discussion of that at [the June 25, 2017 conference],
18

and we indicated there that we thought we would get to
the bottom of it with depositions, and so that went
forward. And meanwhile, during the deposition phase,
that’s when we first discovered this business about Mr.
Chand and what we believe is misrepresentations about
the nature of the transcripts that were made to the LLC
defendants.
That came up [i]n August 2017, so
basically from there we went into summary judgment.
And it wasn’t that we ... thought that we didn’t have
discovery necessarily to defeat summary judgment,
because then we wouldn’t have made a Rule 56(e), I
think it is, application, at that point. 6
(Id. at 8-9). Citing V. Shah’s untimely production of text messages and emails
that should have been produced during discovery (id. at 13-14), the Court
granted Plaintiff’s request to reopen discovery and denied its motion to reopen
the case against LLC Defendants and M. Shah without prejudice (id. at 15-16;
see also Dkt. #263 (memorializing oral decision)).

6

Plaintiff never submitted a Rule 56(e) application in connection with the motions for
summary judgment; to the contrary, in its pre-motion letter, Plaintiff detailed why it
believed it had sufficient evidence to establish a disputed issue of material fact as to the
purportedly fraudulent transfers from Jaina to the LLC Entities. (Dkt. #185). Indeed,
Plaintiff continued to assert, even after the Court granted summary judgment in favor of
M. Shah, that it had submitted sufficient evidence in its opposition to summary
judgment to raise a disputed issue of material fact as to the Neminath Transactions and
Neminath’s sale of the Building:
THE COURT: What is the evidence that you would suggest ... for
a basis or bases for allowing these people in? You’re going to say
look at Chand’s affidavit, look at Mahendra Shah’s testimony and
look at the [Neminath] tax returns. And putting those three things
together somebody must be lying, correct?
MR. LOREE: Well, I think if you look at all the evidence it’s that —
yeah, there’s a question of fact as to — in other words, the prior
decision has taken the view that this $660,000 transfer was for
antecedent debt.
THE COURT: Yes.
MR. LOREE: But based on what was before the court in summary
judgment, we think that there was a question of fact.
(Nov. 19, 2018 Tr. 18).

19

On August 26, 2019, Plaintiff filed a letter on the status of its subpoenas,
including a short summary of evidence gleaned from records produced by
Neminath’s accountant, Andrew Bose. (Dkt. #266). In its letter, Plaintiff stated
its belief that the information obtained from A. Bose confirmed that Neminath
had continued to pay interest to Kedis even after Jaina wired money to the LLC
Entities in 2014, and also that Neminath had recorded the sale price of the
Building as $1,025,000, not $425,000. (Id.). In a subsequent status update,
filed on September 9, 2019, Plaintiff included excerpts from an email exchange
with A. Bose wherein the latter confirmed his understanding that Neminath
continued to pay interest to Kedis through tax year 2015. (Dkt. #268).
The next day, the Court set a briefing schedule on Plaintiff’s motions to:
(i) reopen the case as to the LLC Defendants and M. Shah; (ii) add Chand as a
Defendant; and (iii) file a fourth amended complaint. (Dkt. #269). Plaintiff filed
its moving papers on October 4, 2019 (Dkt. #272-274); Chand and the LLC
Defendants submitted a joint opposition on December 2, 2019 (Dkt. #283);
M. Shah submitted his opposition on December 3, 2019 (Dkt. #284); and
Plaintiff filed its consolidated reply on December 20, 2019 (Dkt. #288-290). 7

7

Chand and the LLC Defendants object to Plaintiff’s inclusion of two supplemental
declarations and numerous exhibits along with its reply brief. (Dkt. #293). Plaintiff
responds that the supplemental exhibits do not prejudice Respondents. (Dkt. #294).
Because consideration of these exhibits does not impact the Court’s analysis that
Plaintiff has not met the standard required for reconsideration or to file an amended
complaint, the Court accepts Plaintiff’s supplemental declarations.

20

DISCUSSION
A.

The Court Denies Plaintiff’s Motion for Reconsideration
1.

Applicable Law
a.

Motions to Reconsider Under Federal Rule of Civil
Procedure 54(b)

Under Rule 54(b), interlocutory decisions “may be revised at any time
before the entry of a judgment adjudicating all the claims and all the parties’
rights and liabilities.” Fed. R. Civ. P. 54(b). However, “the interests of finality”
serve to “severely restrict [the] circumstances” in which courts may revise
judgments that “adjudicate a claim or determine the rights and liabilities of the
parties.” Colvin v. Keen, 900 F.3d 63, 71-72 (2d Cir. 2018) (explaining that a
higher standard applies to reconsideration under Rule 54(b) of a decision that
would be an “immediately appealable final judgment if no other claims
remained to be adjudicated,” than to reconsideration of a non-interlocutory
decision).
The law of the case doctrine governs Rule 54(b) motions for
reconsideration of decisions that “adjudicate a claim or determine the rights
and liabilities of the parties.” Colvin, 900 F.3d at 72; see also Official Comm. of
Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147,
167 (2d Cir. 2003) (“Color Tile”) (“We have limited district courts’
reconsideration of earlier decisions under Rule 54(b) by treating those decisions
as law of the case[.]”). “According to this doctrine, a district court may
reconsider prior adjudications where to do so would not be inconsistent with
the objectives of efficiency and finality.” Vicuna v. O.P. Schuman & Sons, Inc.,
21

298 F. Supp. 3d 419, 433 (E.D.N.Y. 2017) (citing Virgin Atl. Airways, Ltd. v.
Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); see also Tri-Star
Pictures, Inc. v. Leisure Time Prod., B.V., No. 88 Civ. 9127 (DNE), 1992 WL
296314, at *2 (S.D.N.Y. Oct. 6, 1992).
Under the law of the case doctrine, “‘[w]hen a court has ruled on an
issue, that decision should generally be adhered to by that court in subsequent
stages in the same case’ unless ‘cogent and compelling reasons militate
otherwise.’” Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (quoting United
States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)). This is because
generally “where litigants have once battled for the court’s decision, they
should neither be required, nor without good reason, permitted to battle for it
again.” Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964).
To be sure, the law of the case doctrine does not “‘rigidly bind a court to
its former decisions, but is only addressed to its good sense.’” Colvin, 900 F.3d
at 68 (quoting Zdanok, 327 F.2d at 952-53). Even so, courts generally will not
depart from an interlocutory decision pursuant to Rule 54(b) unless there is
“an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” Color Tile, 322
F.3d at 167 (internal quotation marks and citation omitted); accord Colvin, 900
F.3d at 71-72. Nor is a motion for reconsideration “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,

22

Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp.
v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
Motions for reconsideration in civil cases in this District are governed by
Local Civil Rule 6.3. See Ricatto v. M3 Innovations Unlimited, Inc., No. 18 Civ.
8404 (KPF), 2020 WL 2306480, at *1 (S.D.N.Y. May 8, 2020); JP Morgan Chase
Bank, N.A. v. Reifler, No. 11 Civ. 4016 (DAB), 2013 WL 12177061, at *3
(S.D.N.Y. Sept. 20, 2013). Local Civil Rule 6.3 generally requires a party to
submit a motion for reconsideration within 14 days of the court’s
determination of the original motion. Ricatto, 2020 WL 2306480, at *2.
However, “[a] Rule 54(b) motion is not untimely under Local Rule 6.3” where,
as here, “the evidence upon which the motion is based is newly-discovered.”
Sys. Mgmt. Arts Inc. v. Avesta Techs., Inc., 160 F. Supp. 2d 580, 583 (S.D.N.Y.
2001); see also JP Morgan Chase Bank, N.A., 2013 WL 12177061, at *3.
b.

Newly Discovered Evidence Under the Law of the Case
Doctrine

In order to establish that reconsideration is warranted under Rule 54(b)
due to newly discovered evidence, “a movant must demonstrate that [i] the
proffered evidence was unavailable despite the exercise of due diligence and
[ii] manifest injustice will result if a court does not reconsider its earlier
decision.” JP Morgan Chase Bank, N.A., 2013 WL 12177061, at *3 (citing
Rockland Exposition, Inc. v. All. of Auto. Serv. Providers of N.J., 894 F. Supp. 2d
288, 339 (S.D.N.Y. 2012); In re Rezulin Prods. Liab. Litig., 224 F.R.D. 346, 350
(S.D.N.Y. 2004)). To demonstrate that the evidence was “unavailable despite
due diligence,” a movant “must demonstrate that the evidence it seeks to admit
23

is in fact new, meaning he did not possess it at the time of the earlier decision
and could not have obtained it despite his efforts to procure it.” Id. And to
establish manifest injustice, “a movant must demonstrate that the new
evidence is ‘of such importance that it probably would have changed the
outcome’ of the prior ruling.” Id. (quoting Vincent v. Money Store, No. 03 Civ.
2876 (JGK), 2011 WL 4501325, at *9 (S.D.N.Y. Sept. 29, 2011), aff’d in part,
vacated in part on other grounds, remanded sub nom. Vincent v. The Money
Store, 736 F.3d 88 (2d Cir. 2013)).
In determining whether reconsideration is warranted, “the Court may
also consider [i] the timeliness of the motion, [ii] a tardy movant’s explanation
for not presenting the evidence earlier, and [iii] the potential prejudice to the
opposing party which may result from granting the motion.” Rockland
Exposition, Inc., 894 F. Supp. 2d at 339. Furthermore, a motion for
reconsideration pursuant to Rule 54(b) should be denied “if the movant had the
opportunity to present the evidence or litigate the issue earlier but did not do
so, either because of inadvertence or as a strategic maneuver.” Id. at 340
(citing In re Rezulin, 224 F.R.D. at 352 (“Rule 54(b) motions may be denied
where relief is sought on a basis which a party inadvertently failed to raise
earlier or the interests of justice otherwise so require.” (internal quotation
marks and citation omitted))).
2.

Analysis

Plaintiff requests that the Court “reopen” the case against M. Shah and
the LLC Defendants. (Pl. Br. 1-2). The LLC Defendants were dismissed from
24

this case by Opinion and Order dated July 27, 2016 (Dkt. #134), while
M. Shah’s motion for summary judgment was granted by Opinion and Order
dated July 30, 2018 (Dkt. #236); by necessity, Plaintiff asks the Court for
reconsideration of these decisions. Because the Court’s 2016 Opinion
dismissing the LLC Defendants and the 2018 Opinion granting summary
judgment to M. Shah both “adjudicate[] some but not all of the claims at issue
in the suit,” Plaintiff’s motion to reopen “is governed by Rule 54(b).” Rockland
Exposition, Inc., 894 F. Supp. 2d at 339 n.47.
As noted, courts usually will not grant a motion for reconsideration
unless there is “[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.” Color Tile, 322 F.3d at 167 (internal quotation marks and citation
omitted). Plaintiff does not argue that there has been an intervening change of
controlling law, nor that reconsideration is needed to correct a clear error or
prevent manifest injustice. (See generally Pl. Br.; Pl. Reply). Instead, Plaintiff
argues that the “evidence adduced since the dismissal of the LLC Defendants
and the Court’s grant of summary judgment to Mahendra Shah constitutes
ample grounds for reopening the case against those defendants under
Rule 54(b).” (Pl. Br. 23). Aside from this single conclusory sentence, Plaintiff
advances no further arguments to explain why it meets the strict standard for
reconsideration of an interlocutory decision under Rule 54(b); instead, Plaintiff
focuses on establishing the elements of the claims it seeks to assert if its
motion is granted. (See generally Pl. Br.; Pl. Reply).
25

a.

Plaintiff’s Purportedly “New” Evidence Is Not New

The Court begins by noting that it has already addressed the very
transactions that Plaintiff now puts before it on summary judgment. (See
Nov. 19, 2018 Tr. 16 (“THE COURT: But I’ve addressed this precise issue in
the summary judgment. And you never came back and said that I had
misperceived the evidence.”)). Plaintiff does not specifically enumerate the
evidence that it believes is newly discovered and justifies reconsideration under
Rule 54(b). (See generally Pl. Br.; Pl. Reply). Instead, the Court has reviewed
the record and determined that Plaintiff relies on the following evidence to
assert that Jaina’s 2014 transfers to the LLC Entities were not made to
discharge an antecedent debt incurred via the Neminath Transactions:
i.

The deposition of M. Shah (see, e.g., Pl. Br. 8; Vanjani
Decl., Ex. 7);

ii.

Neminath’s tax returns (see, e.g., Pl. Br. 8; Vanjani
Decl., Ex. 8-12);

iii.

Neminath’s bank statements (see, e.g., Pl. Br. 8;
Vanjani Decl., Ex. 6);

iv.

Documents and deposition testimony obtained from
Williston Park (see, e.g., Pl. Br. 8-10; Vanjani Decl.,
Ex. 22-26, 29, 31, 34);

v.

The CLA, corresponding mortgage agreement, and other
publicly available documents regarding the sale (see,
e.g., Pl. Br. 8-10; Vanjani Decl., Ex. 4-5);

vi.

Jaina’s bank statements and other banking documents
(see, e.g., Pl. Br. 11-13; Vanjani Decl., Ex. 2-3, 16-17,
35, 43-44, 53, 55, 57);

vii.

Public records relating to the LLC Entities (see, e.g., Pl.
Br. 6-7; Vanjani Decl., Ex. 15, 19-21; Vanjani Reply
Decl., Ex. A-D);
26

viii.

An unsworn statement made by, and documents
produced by, A. Bose, Neminath’s account (see, e.g., Pl.
Br. 5; Vanjani Decl., Ex. 13, 14; Vanjani Reply Decl.,
Ex. F); and

ix.

Documents obtained from NRM (see, e.g., Pl. Br. 10-12;
Vanjani Decl., Ex. 40, 46-50). 8

Of the evidence just listed, everything — except for the information from
Andrew Bose, documents from NRM, and certain of Jaina’s bank
records — was available at the time of Plaintiff’s opposition to the summary
judgment motions, and indeed much of it was put before the Court at that
time. (See Pl. MSJ Opp. 19-21 (citing Neminath’s tax returns, Jaina’s bank
statements, M. Shah’s deposition transcript, and evidence obtained from
Williston Park); Nov. 19, 2018 Tr. 17-18). See also LaSalle Bank Nat’l Ass’n v.
Capco Am. Securitization Corp., No. 02 Civ. 9916 (RLC), 2006 WL 177169, at *2
(S.D.N.Y. Jan. 25, 2006) (explaining that publicly available documents are not
considered new evidence because they are “discoverable through the exercise of
reasonable diligence”).
As to the remaining items of evidence, Plaintiff acknowledged to the
Court that it opted not to pursue this evidence until more than a year after first
becoming aware of these items (and their significance), and almost six months

8

Defendants object to Govind Vanjani’s declaration in support of the instant motions
(see generally Vanjani Decl.), arguing that it is an attempt to circumvent the Court’s
rule imposing a page limit on Plaintiff’s brief, and that it contains improper
argumentation and conjecture. (LLC Opp. 16; M. Shah Opp. 14-17). The Court
declines to strike the Vanjani Declaration in whole or in part, but notes that it did not
rely on any portions of the declaration that: “[i] are not based upon the affiant’s
personal knowledge, [ii] contain inadmissible hearsay[,] or [iii] make generalized and
conclusory statements.” Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir.
1999).

27

after the Court’s summary judgment decision. (See Nov. 19, 2018 Tr. 12, 3038). Indeed, as noted above, Plaintiff conceded that it was a strategic choice to
move forward with summary judgment rather than to pursue these avenues for
further discovery. (Id. at 12-13, 16-18; June 16, 2019 Tr. 7-9).
b.

The Court Denies Plaintiff’s Motion for Reconsideration
of Its Dismissal of M. Shah

Turning first to Plaintiff’s motion for reconsideration of the July 30, 2018
Opinion and Order granting summary judgment in favor of M. Shah, see GeoGroup III, 2018 WL 3632498, at *13-14, the Court finds that Plaintiff has
demonstrated neither (i) that “the proffered evidence was unavailable despite
the exercise of due diligence,” nor (ii) that “manifest injustice will result if a
court does not reconsider its earlier decision.” JP Morgan Chase Bank, N.A.,
2013 WL 12177061, at *3.
As an initial matter, none of the evidence that Plaintiff actually had at
the time of its motion for summary judgment is “newly discovered,” and indeed
Plaintiff cited much of it in its opposition to summary judgment. (Pl. MSJ
Opp. 19-21). Accord Tri-Star Pictures, Inc., 1992 WL 296314, at *4 (noting that
evidence in movant’s possession at time of decision, especially when the same
issue “was clearly before the Court,” is not “newly discovered”). Conversely, the
evidence that Plaintiff did not have in hand at summary judgment was
obtainable, if only Plaintiff had exercised “due diligence.” After briefing its
opposition to the summary judgment motions, Plaintiff obtained evidence from
NRM and Andrew Bose, and acquired certain documents from Jaina’s banks.
But, as noted above, Plaintiff knew about, and could have pursued and
28

obtained, all of this evidence before the close of fact discovery. (See Nov. 19,
2018 Tr. 28, 30-38).
As one example, Plaintiff knew of Andrew Bose’s identity and his role as
Neminath’s account and tax-preparer as far back as August 2017. (M. Shah
Dep. 165:23-166:3-6). And prior to the close of fact discovery, Plaintiff had
actually served subpoenas on Citibank, in an attempt to obtain records it had
already identified as missing, but Plaintiff failed to follow up when Citibank’s
response was purportedly lost in the mail. (Nov. 19, 2018 Tr. 38). Plaintiff
conceded that nothing prevented it from issuing a subpoena to NRM in 2016 or
2017, but instead blamed a “very cramped discovery period” for its failure to do
so. (Id. at 33). Thus, although Plaintiff obtained evidence from NRM, Andrew
Bose, and Jaina’s banks after submitting its opposition to summary judgment,
Plaintiff failed to demonstrate that it “could not have obtained [the evidence]
despite [its] efforts to procure it,” or that “the proffered evidence was
unavailable despite the exercise of due diligence.” JP Morgan Chase Bank, N.A.,
2013 WL 12177061, at *3.
Plaintiff’s lack of diligence in pursuing the newly discovered evidence is
sufficient cause in and of itself to deny Plaintiff’s motion. Nevertheless, the
Court looks to other factors, such as “[i] the timeliness of the motion, [ii] a
tardy movant’s explanation for not presenting the evidence earlier, and [iii] the
potential prejudice to the opposing party which may result from granting the
motion,” Rockland Exposition, Inc., 894 F. Supp. 2d at 339, all of which confirm
the propriety of denial.
29

First, the timeliness of this motion weighs against Plaintiff, because as
discussed above, Plaintiff delayed for more than a year from the date it first
learned of the facts that prompted this motion. See, e.g., Rockland Exposition,
Inc., 894 F. Supp. 2d at 341 (finding that a delay of 11 months “independently
justifies denying the motion” for reconsideration). Second, Plaintiff has
provided no explanation for the delay. (See generally Pl. Br.; Pl. Reply). See
also Space Hunters, Inc. v. United States, 500 F. App’x 76, 81 (2d Cir. 2012)
(summary order) (upholding a denial of reconsideration where the plaintiffs did
not “provide a convincing explanation as to why they could not have obtained”
the evidence sooner). Instead, Plaintiff conceded that its decision not to pursue
this discovery was a strategic one, grounded in an ultimately mistaken belief
that it had obtained sufficient evidence to raise a disputed issue of material
fact as to M. Shah at summary judgment. (Nov. 19, 2018 Tr. 18; June 26,
2019 Tr. 7-9). Third, as to prejudice, the parties have litigated this case for
several years, and although this is partly due to M. Shah’s own dilatory tactics,
the Court cannot say that reopening the case as to M. Shah on a motion filed
more than a year after he was dismissed from the case would cause him no
prejudice. (See M. Shah Opp. 2). But although the prejudice as to M. Shah
might not be extensive, Plaintiff’s lack of diligence and “the interests of finality,”
Colvin, 900 F.3d at 71, weigh strongly against granting reconsideration.
Indeed, because Plaintiff’s “decision not to file the Rule 54(b) motion until after
summary judgment was entered against it ... was a strategic one[,] [d]enying
[Plaintiff] yet another bite at the apple because this strategy ultimately failed
30

certainly cannot be characterized as manifestly unjust[.]” Color Tile, 322 F.3d
at 168.
Finally, the Court notes that Plaintiff has not established that
reconsideration is warranted to prevent manifest injustice. The purportedly
new evidence offered by Plaintiff is not “‘of such importance that it probably
would have changed the outcome’ of the prior ruling.” Vincent, 2011 WL
4501325, at *9 (quoting United States v. Int’l Bhd. of Teamsters, 247 F.3d 370,
392 (2d Cir. 2001)). In granting summary judgment to M. Shah, the Court
noted that (i) it did “not understand the factual record to support a finding that
M. Shah personally benefitted from the challenged transfers,” and (ii) the
NYDCL does “not provide a remedy against the transferor or against one who
orchestrates fraudulent transfers without being either a beneficiary or
transferee thereof.” Geo-Group III, 2018 WL 3632498, at *13 (citing BBCN Bank
v. 12th Ave. Rest. Grp. Inc., 55 N.Y.S.3d 225, 226 (2017)). Although Plaintiff’s
new evidence, if true, adds credence to the claim that M. Shah “aided and
abetted” allegedly improper transfers, id., none of the purportedly new evidence
alters that Court’s conclusion that:
the record does not reflect that M. Shah was himself the
recipient of any funds transferred to ... the LLC
Entities, ... or that any funds were subsequently given
to him by these transferees. Nor does the record show
that any of these transfers was made to satisfy personal
debts or expenses that M. Shah owed, thereby affording
him an indirect financial benefit.
Id.

31

c.

The Court Denies Plaintiff’s Motion for Reconsideration
of Its Dismissal of the LLC Defendants

Because the LLC Defendants were dismissed in 2016, before the Court
endorsed any schedule for discovery, see Geo-Group II, 2016 WL 4098552, at
*5-7, all of the evidence discussed above is technically “newly discovered” as to
those entities. However, other important factors, including “[i] the timeliness of
the motion, [ii] a tardy movant’s explanation for not presenting the evidence
earlier, and [iii] the potential prejudice to the opposing party which may result
from granting the motion,” Rockland Exposition, Inc., 894 F. Supp. 2d at 339,
all weigh heavily against granting a motion for reconsideration as to the LLC
Defendants.
First, Plaintiff delayed an unreasonable amount of time in bringing a
motion for reconsideration of the Court’s July 2016 dismissal of the LLC
Defendants. Plaintiff states that it first learned of the key fact that motivates
this motion — that “neither Jaina nor Neminath paid Neminath’s [CLA] debt
until Neminath sold its 235 Hillside Avenue property in January 2016” — at
M. Shah’s deposition on August 11, 2017. (Pl. Br. 8). But Plaintiff waited until
its October 19, 2018 letter regarding a settlement with V. Shah — a delay of
more than 14 months — to even hint at its intention to pursue reopening the
case as to the LLC Defendants. (See Dkt. #240). And Plaintiff did not formally
request such relief until November 2018. (Dkt. #248). What is more, despite
having this ostensibly critical new evidence well before summary judgment
practice began, Plaintiff only notified the Court of its intention to seek
reconsideration after the majority of the other Defendants had been dismissed
32

from the case (Dkt. #236), and after its efforts to settle with the lone remaining
Defendant, V. Shah, had fallen through (Dkt. #245, 250). Courts asked to
reconsider dispositive motions after comparable delays have routinely, and
appropriately, denied such motions. See, e.g., Pub. Emps. Ret. Ass’n of N.M. v.
PricewaterhouseCoopers LLP, 305 F. App’x 742, 745 (2d Cir. 2009) (summary
order) (affirming dismissal of motion for reconsideration brought a year after
motion to dismiss granted); Rockland Exposition, Inc., 894 F. Supp. 2d at 341
(finding that where movant “waited eleven months between obtaining the
[evidence] and filing the instant motion for reconsideration” the ensuing “delay
alone independently justifies denying the motion.”); Aini v. Sun Taiyang Co.,
174 F.R.D. 327, 330 (S.D.N.Y. 1997) (characterizing an eight-month delay as
“extraordinary”); cf. Vicuna, 298 F. Supp. 3d at 434 (finding delay of one month
between discovering new evidence and motion for reconsideration to be
reasonable).
Second, the lack of a satisfactory explanation for the delay weighs
against Plaintiff. In its motion papers, Plaintiff offers no explanation for its
delay whatsoever. (See generally Pl. Br.; Pl. Reply). In other statements to the
Court, Plaintiff’s only excuse has been that “up until the settlement meeting of
October 10[,] [Plaintiff’s] intention had been to ask [the Court] to simply make
any final judgment without prejudice to the 660,000-dollar issue as respects
the LLC defendants,” and to sue both Chand and the LLC Defendants

33

elsewhere. (Nov. 19, 2018 Tr 12-13; see also id. at 14-15). 9 But a change of
strategy after an unsuccessful opposition to summary judgment and an
unsuccessful attempt at obtaining cooperation from a putative co-Defendant
does not justify reconsideration. Furthermore, Plaintiff conceded that its
decision to forgo a motion to reopen as to the LLC Defendants was strategic
one. (Loree Quash Decl. ¶ 6). Accord Color Tile, 322 F.3d at 168 (denying
reconsideration because plaintiff made a strategic decision to wait until after
summary judgment to move for reconsideration).
Third, the “added weight, if any,” of new evidence “is more than
outweighed by the prejudice [Respondents] would suffer from having [Plaintiff’s]
claims reinstated against [them] more than 18 months after they were
dismissed with prejudice.” In re Bisys Sec. Litig., 496 F. Supp. 2d 384, 386
(S.D.N.Y. 2007), aff’d sub nom Pub. Emps. Ret. Ass’n of N.M., 305 F. App’x 742
(2d Cir. 2009) (summary order). This is because, after the LLC Defendants
were dismissed, “[they] had no motive to, and did not, participate in the vast

9

Plaintiff proclaimed that its reason to forgo reopening as to the LLC Defendants was
that it planned to bring a separate suit against the LLC Defendants all along. (See
Loree Quash Decl. ¶¶ 6-7; Nov. 19, 2018 Tr. 14-15). To do so, however, Plaintiff would
need to have the Court reconsider its July 20, 2016 Opinion dismissing the LLC
Defendants with prejudice, and have the Court order dismissal without prejudice.
(Nov. 19, 2018 Tr. 14). Yet Plaintiff failed even to mention this purported plan until
more than two years after the Court’s decision, at the November 19, 2018 conference:
THE COURT: ... I also wonder why you could not have told me at
any point prior to the fall of 2018 that my prior decisions in 2016
and 2017 should have been without prejudice because the
orders — the decisions themselves would seem to suggest that the
dismissals of the LLC defendants were with prejudice; is that not
correct?
MR. LOREE: That is correct.
(Id.).

34

discovery then undertaken.” Id. Granting reconsideration to reopen litigation
against the LLC Defendants would require a virtual re-do of discovery,
essentially bringing this case back to square one.
Additionally, Plaintiff previously disclaimed, in a sworn affidavit
submitted to this Court, an intent to reopen the case against the LLC
Defendants. Specifically, in Plaintiff’s reply to Williston Park’s motion to
quash, Plaintiff represented that:
Geo-Group’s goal in subpoenaing Williston Park Realty
LLC, and opposing the motion to quash, is not to ask
[that] the Court reopen the case against the LLC
[Defendants] or to name Sanjiv Chand as a defendant.
It is too late for that, as the discovery cut-off has passed
and this case is moving forward to trial.
(Loree Quash Decl. ¶ 6). Although this representation was not made in a
motion adverse to the LLC Defendants, it still demonstrates that Plaintiff “had
the opportunity to present the evidence or litigate the issue earlier but did not
do so, either because of inadvertence or as a strategic maneuver.” Rockland
Exposition, Inc., 894 F. Supp. 2d at 340. Thus, although the representation did
not directly prejudice the LLC Defendants at the time of Williston Park’s motion
to quash, the Court ultimately relied on Plaintiff’s representation in denying the
motion to quash. (Dkt. #187). It would not have been unreasonable for the
LLC Defendants to rely on a statement Plaintiff’s counsel made in a sworn
declaration to the Court, especially when Plaintiff sought no discovery from

35

them while pursuing discovery from other third parties related to the Neminath
Transactions and sale of the Building. 10
B.

The Court Denies Plaintiff’s Motion to File a Fourth Amended
Complaint
1.

Applicable Law

Federal Rule of Civil Procedure 15(a)(2) states that a party may amend its
pleadings more than once “only with the opposing party’s written consent or
the court’s leave.” Although “[l]eave to amend should be freely granted”
pursuant to Rule 15(a)(2), this Court “‘has the discretion to deny leave if there
[is] a good reason for it, such as futility, bad faith, undue delay, or undue
prejudice to the opposing party.’” In re Arab Bank, PLC Alien Tort Statute Litig.,
808 F.3d 144, 159 (2d Cir. 2015) (quoting Jin v. Metro. Life Ins. Co., 310 F.3d
84, 101 (2d Cir. 2002)), as amended (Dec. 17, 2015); see also Foman v. Davis,
371 U.S. 178, 182 (1962) (analyzing the standard for a post-judgment motion
to amend).
However, where “‘a scheduling order governs amendments to the
complaint,’ and a plaintiff wishes to amend after the deadline to do so has
passed, the plaintiff must show good cause to modify the deadline under

10

The LLC Defendants and Chand ask the Court to find that Plaintiff is bound by the
statements made by its counsel in opposition to Williston Park’s motion to quash. (LLC
Opp. 14-15). Because Chand and the LLC Defendants were not directly prejudiced by
Plaintiff’s representations in its opposition to the Motion to Quash (because they were
not actually litigants in the case at that time), the Court will not deny Plaintiff’s motion
on these grounds. See DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010)
(“[L]imit[ing] judicial estoppel to situations where the risk of inconsistent results with its
impact on judicial integrity is certain.” (internal quotation marks and citation omitted)).
But as noted above, the Court considers this evidence in elucidating Plaintiff’s diligence
and intentions, and in weighing the prejudice to Chand and the LLC Defendants.

36

Rule 16.” BPP Illinois, LLC v. Royal Bank of Scotland Grp. PLC, 859 F.3d 188,
195 (2d Cir. 2017) (quoting Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir.
2009)). 11 “Whether good cause exists turns on the ‘diligence of the moving
party.’” Holmes, 568 F.3d at 335 (quoting Grochowski v. Phoenix Constr., 318
F.3d 80, 86 (2d Cir. 2003)). Indeed, a court “may deny leave to amend for lack
of diligence even if amendment would not prejudice the non-movant.” Suarez
v. California Nat. Living, Inc., No. 17 Civ. 9847 (VB), 2019 WL 5188952, at *2
(S.D.N.Y. Oct. 15, 2019) (citing Gullo v. City of New York, 540 F. App’x 45, 47
(2d Cir. 2013) (summary order)).
2.

Analysis

Plaintiff seeks to file a fourth amended complaint in order to add Sanjiv
Chand as a Defendant, 12 as well as to add and amend certain claims against
M. Shah and the LLC Defendants. 13 (See Pl. Br. 23). Where Plaintiff’s “claims

11

Fed. R. Civ. P. 16(b)(4) states that “[a] schedule may be modified only for good cause
and with the judge’s consent.” Under the operative case management plan, the
deadline to seek leave to modify was September 30, 2016. (See Dkt. #139).

12

Plaintiff appears to have moved to add Chand under both Rules 20 and 21. (Pl. Br. 1).
“Rule 21, which governs misjoinder and non-joinder of parties, does not apply unless
plaintiff is unable to satisfy the prerequisites of permissive joinder under Rule 20(a).”
Cline v. 1-888-Plumb. Grp., Inc., No. 99 Civ. 1401 (RJW), 2000 WL 342689, at *1
(S.D.N.Y. Mar. 30, 2000). There are two prerequisites to permissive joinder: “First, a
right to relief must be asserted against each defendant relating to or arising out of the
same transaction or occurrence. Second, there must exist some question of law or fact
common to all the parties that will arise in the litigation.” Id. The parties do not
address whether Chand meets the prerequisites for joinder under Rule 20(a). Because,
as noted below, Plaintiff is unable to demonstrate “good cause” to amend, and because
Chand would be prejudiced by allowing Plaintiff to amend to add him, the Court need
not address whether the prerequisites are met. However, the Court notes that the
fraudulent conveyance claims against Chand arise from the Neminath Transactions and
the sale of the Building; thus, permissive joinder with other claims for fraudulent
conveyance arising out of those same transactions would appear to meet the standard.

13

Under Rule 15(d), a party may “supplement its complaint in order to present facts and
claims that arose after the operative complaint was filed.” Kleeberg v. Eber, 331 F.R.D.
302, 315 (S.D.N.Y. 2019). “[T]he analysis used to determine whether supplementation

37

against [respondent] were previously dismissed with prejudice,” and Plaintiff
“purport[s] to ... request under Fed. R. Civ. P. 15(a)” to amend the complaint
based on “new evidence,” the Court may “construe plaintiffs’ request as a
motion under Fed. R. Civ. P. 54(b).” In re Bisys Sec. Litig., 496 F. Supp. 2d at
386. As discussed above, Plaintiff failed to meet the standard for
reconsideration under Rule 54(b) as to either M. Shah or the LLC Defendants.
Accord Pub. Emps. Ret. Ass’n of N.M., 305 F. App’x at 744-45 (affirming
rejection of motion for reconsideration styled by movants as a motion to amend
under both Rule 54(b) and Rule 15(a)).
Considering the motion to amend under Rules 15(a) and 16(b)(4), the
Court notes that “[w]hen a party files a motion to amend after the pleading
deadline set forth in the scheduling order,” as Plaintiff has done here, “‘the
lenient standard under Rule 15(a) ... must be balanced against the requirement
under Rule 16(b) that the Court’s scheduling order shall not be modified except
upon a showing of good cause.’” Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D.
193, 197 (S.D.N.Y. 2014) (alteration in original) (quoting Holmes, 568 F.3d at
334-35). Although Plaintiff does not explain why it believes it has met the
standard to amend under Rules 15 and 16, the Court construes Plaintiff’s
argument to be that new evidence provides good cause. (See Pl. Br. 23). But,

is appropriate under Rule 15(d) is identical to the analysis used to determine whether
amendment is appropriate pursuant to Rule 15(a).” Id. Plaintiff seeks to supplement
the complaint to add a claim against M. Shah for fraud on the Court. (Pl. Br. 1).
Because the Court declines to grant Plaintiff’s motion for reconsideration as to M. Shah,
the Court need not address Plaintiff’s motion to supplement the complaint against
M. Shah, as he is no longer a party to this litigation.

38

as discussed extensively above, Plaintiff waited 14 months from when it
discovered the new evidence to notify the Court of its intent to bring this
motion. Accord Lowry v. Eastman Kodak Co., 14 F. App’x 27, 30 (2d Cir. 2001)
(summary order) (“Lowry offers no good cause for his delay in filing an
amended complaint.... [H]e did not seek to amend his complaint until five
months after the new evidence surfaced. Discovery had closed, and a motion
for summary judgment was pending.”); see also McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 200 (2d Cir. 2007) (explaining that courts “ha[ve]
discretion to deny leave [to amend] for good reason, including futility, bad faith,
undue delay, or undue prejudice” (emphasis added)). Because Plaintiff fails to
demonstrate “good cause” for its unreasonable delay, Plaintiff’s motion to file a
fifth complaint is denied.
Although Plaintiff failed to offer good cause to amend, the Court notes, in
the interest of completeness, that allowing Plaintiff to file an amended
complaint at this stage in litigation would prejudice Respondents. In gauging
prejudice, courts in this Circuit consider, among other factors, “whether an
amendment would ‘require the opponent to expend significant additional
resources to conduct discovery and prepare for trial’ or ‘significantly delay the
resolution of the dispute.’” Ruotolo v. City of New York, 514 F.3d 184, 192 (2d
Cir. 2008) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.
1993)). Here, when Plaintiff finally requested leave to file the instant motion
(Dkt. #248), several motions to dismiss and for summary judgment had been
heavily litigated and decided (Dkt. #102, 134, 236), a trial date and trial
39

schedule had been set, and the trial itself was a scant two months away (Dkt.
#249).
After five years of litigation, Plaintiff seeks to add a completely new party
to the litigation; to add three parties that have not participated in discovery
(indeed, that have not been in the litigation for four years); and to assert new
fraud-on-the-court claims that arise out of conduct post-dating the initiation of
this lawsuit. The injection of these new parties and claims will require
extensive additional discovery, and will prejudice those parties that were not
participants in the extensive discovery and litigation that has occurred over the
past four years. See In re Bisys Sec. Litig., 496 F. Supp. at 386 (holding that to
grant a motion to amend brought more than a year after dismissal would
prejudice respondent because, after dismissal, respondent “did not, participate
in the vast discovery then undertaken”); accord State Teachers Ret. Bd. v. Fluor
Corp., 654 F.2d 843, 856 (2d Cir. 1981) (reversing denial of leave to amend
sought promptly after learning new facts, where “no trial date had been set by
the court and no motion for summary judgment had yet been filed by the
defendants” and where “the amendment will not involve a great deal of
additional discovery”).
Nor can denial of Plaintiff’s motion to amend a fourth time be said to
cause manifest injustice. See Metzler Inv. Gmbh v. Chipotle Mexican Grill, Inc.,
970 F.3d 133, 147 (2d Cir. 2020) (explaining that plaintiffs “were afforded and
availed themselves of three opportunities — beyond the original complaint — to
state a claim” and that therefore the “denial of the post-judgment motion [to
40

amend]” did not “cause any injustice, manifest or otherwise; four bites at the
apple is more than enough.”). And as to Chand and the LLC entities, in
September 2017, Plaintiff specifically foreswore pursuing claims against them
in this case:
Geo-Group’s goal in subpoenaing Williston Park Realty
LLC, and opposing the motion to quash, is not to ask
the Court [to] reopen the case against the LLC Entities or
to name Sanjiv Chand as a defendant. It is too late for
that, as the discovery cut-off has passed and this case is
moving forward to trial. A good deal of the events
implicating
Mr.
Chand
occurred
after
the
commencement of this action, and Mr. Chand has
actively concealed his involvement in this matter from
the beginning and is continuing to attempt to conceal
it. If it turns out to be warranted and necessary GeoGroup may commence proceedings against Mr. Chand,
and/or entities owned or controlled by him.
(Loree Quash Decl. ¶ 6 (emphasis added)). Plaintiff had ample opportunity to
name Chand as a defendant, to seek discovery from Chand and the LLC
Defendants before the close of fact discovery, and to litigate the claims against
M. Shah on summary judgment (which it did). Given Plaintiff’s delay, its
failure to pursue new evidence (be it inadvertent or strategic), the potential
prejudice to Respondents, Respondents’ and the Court’s interest in finality, and
the Court’s interest in judicial economy, Plaintiff’s motions for reconsideration,
to add a new party, and to file a fourth amended complaint will be denied. 14

14

The Court acknowledges that Plaintiff notified the Court that it believed the statute of
limitations on Plaintiff’s first fraudulent conveyance claim (for the August 13, 2014
$200,000 payment from Jaina) was likely extinguished on August 13, 2020. (Dkt.
#276, 277). The Court first notes that if it had the power to toll the statute of
limitations, the Court would find that the disruption occasioned by the COVID-19
pandemic would warrant such action. However, the Court also notes that even if the
Court tolled the statute of limitations for this claim, Plaintiff would still be barred from
pursuing claims against the LLC Defendants and M. Shah because their dismissals

41