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

Filing 305

OPINION AND ORDER re: 297 MOTION for Reconsideration re; 295 Memorandum & Opinion Notice of Motion for Reconsideration of September 25, 2020 Opinion and Order (Dk. 295). filed by Geo-Group Communications, Inc. For the foregoing reasons, Plaintiff's motion for reconsideration is DENIED. The Clerk of Court is directed to terminate the motion at docket entry 297. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/16/2020) (rro)

Case 1:15-cv-01756-KPF Document 305 Filed 11/16/20 Page 1 of 6

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:

Before the Court is Plaintiff’s second motion for reconsideration. (See
Dkt. #297-298). 1 By Opinion and Order dated September 25, 2020, the Court
denied Plaintiff’s first motion for reconsideration, in which motion Plaintiff
sought, in relevant part, to reopen the case against Defendants 728 Melville
Petro LLC (“Melville”), Kedis Enterprises LLC (“Kedis”), JMVD Hillside LLC
(“JMVD,” and together with Melville and Kedis, the “LLC Defendants”); to join
non-party Sanjiv Chand (“Chand,” and together with the LLC Defendants,
“Respondents”); and to file a fourth amended complaint asserting claims of
fraud on the court and fraudulent conveyance against Respondents. (See Dkt.
#295). 2

1

For ease of reference, Plaintiff’s brief is referred to as “Pl. Br.” (Dkt. #298), Respondents’
joint brief in opposition is referred to as “Resp. Opp.” (Dkt. #303), and Plaintiff’s reply is
referred to as “Pl. Reply” (Dkt. #304).

2

The LLC Defendants were previously dismissed from this suit in an Opinion and Order
dated July 26, 2016. See 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”). In its first motion
for reconsideration, Plaintiff also sought reconsideration of the Court’s July 30, 2018
Opinion and Order, see Geo-Grp. 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”), granting summary
judgment to Defendant M. Shah (see Dkt. #274, 288).

Case 1:15-cv-01756-KPF Document 305 Filed 11/16/20 Page 2 of 6

The Court denied Plaintiff’s first motion for reconsideration in full,
holding that Plaintiff had failed to meet the standard for reconsideration under
Federal Rule of Civil Procedure 54(b), and that Plaintiff had failed to
demonstrate good cause to amend the complaint pursuant to Federal Rules of
Civil Procedure 15 and 16. See Geo-Grp. Commc’ns, Inc. v. Shah, No. 15 Civ.
1756 (KPF), 2020 WL 5743516, at *9-18 (S.D.N.Y. Sept. 25, 2020) (“Geo-Group
IV”). Now, citing “certain matters” that Plaintiff believes the Court “overlooked”
in Geo-Group IV (Pl. Br. 1), Plaintiff attempts to take “‘yet another bite at the
apple,’” Geo-Group IV, 2020 WL 5743516, at *13 (quoting Official Comm. of
Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147,
167 (2d Cir. 2003)). The Court has carefully reviewed the parties’ submissions
and is not persuaded that it overlooked controlling legal authority or factual
data that would change its decision, or that reconsideration is needed to
correct clear error. Plaintiff’s motion is therefore denied.
“The decision to grant or deny a motion for reconsideration is within the
sound discretion of the district court.” In re Optimal U.S. Litig., 813 F. Supp. 2d
383, 403 n.6 (S.D.N.Y. 2011) (quoting Patterson v. United States, No. 04 Civ.
3140 (WHP), 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006)). Under Local
Rule 6.3, the moving party must “point to controlling decisions or data that the
court overlooked — matters, in other words, that might reasonably be expected
to alter the conclusion reached by the court.” Shrader v. CSX Transp. Inc., 70
F.3d 255, 256-57 (2d Cir. 1995) (internal citations omitted) (noting that the

2

Case 1:15-cv-01756-KPF Document 305 Filed 11/16/20 Page 3 of 6

standard for granting motions for reconsideration is “strict”); accord Van
Buskirk v. United Grp. of Cos., Inc., 935 F.3d 49, 54 (2d Cir. 2019).
Compelling reasons for granting a motion for reconsideration are limited
to “an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” Virgin Atl.
Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(internal quotation marks and citation omitted); accord Kolel Beth Yechiel
Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 108 (2d Cir. 2013).
A motion for reconsideration 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, 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)).
Plaintiff argues that the Court overlooked Plaintiff’s allegations that
Chand and non-party Jessie Gupta made false statements in sworn affidavits
submitted to the Court in connection with briefing submitted to support the
LLC Defendants’ motion to dismiss. (Pl. Br. 2; Pl. Reply 8-9). But the Court
did not overlook Chand’s affidavit, Gupta’s affidavit, or Plaintiff’s allegations of
fraud. Rather, the Court considered this issue and determined that the
evidence Plaintiff advanced to support its argument was not “new evidence”
such that reconsideration was warranted, and that in any event Plaintiff had
failed to demonstrate that it had pursued the evidence with the proper
diligence. See Geo-Group IV, 2020 WL 5743516, at *11-12, *14-15. Because
3

Case 1:15-cv-01756-KPF Document 305 Filed 11/16/20 Page 4 of 6

the Court did consider the allegedly false statements that Plaintiff now argues
were overlooked, Plaintiff offers no new evidence and points to no change in
controlling law that justifies reconsideration of Geo-Group IV.
Even assuming Plaintiff met the standard for a motion for
reconsideration of Geo-Group IV — and Plaintiff has not — Plaintiff’s motion
for reconsideration fails on the merits. In Geo-Group IV, Plaintiff raised the
same arguments it raises here: namely, that Chand and Gupta made false
statements in their affidavits to conceal the fact that Melville was a shell
company. (See, e.g., Dkt. #273, 288). The Court has already considered this
argument on the merits and rejected it. In Plaintiff’s first motion for
reconsideration, Plaintiff cited “[p]ublic records relating to the LLC Entities.”
Geo-Group IV, 2020 WL 5743516, at *11, as evidence to demonstrate that
Melville was a shell company and therefore that Chand and Gupta submitted
false statements in their affidavits. (See also Dkt. #273, 274, 288, 289). The
public records at issue were, for the most part, filed publicly in 2014 and 2015
(see, e.g., Dkt. 289, Ex. A-D), and the LLC Defendants were dismissed in 2016,
Geo-Group II, 2016 WL 4098552, at *5-7. As the Court explained in Geo-Group
IV, this evidence does not justify reconsideration, as “publicly available
documents are not considered new evidence because they are ‘discoverable
through the exercise of reasonable diligence.’” Geo-Group IV, 2020 WL
5743516, at *12 (quoting 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)).
4

Case 1:15-cv-01756-KPF Document 305 Filed 11/16/20 Page 5 of 6

In support of the instant motion, Plaintiff argues that even though the
relevant information about the LLC Defendants was publicly available and
therefore not new, it had “no reason ... to do an investigation to determine
whether [Melville] had been dissolved.” (Pl. Reply 7). Even setting aside that
the public records were available well before the LLC Defendants were even
dismissed from this suit, Plaintiff conceded that it first learned of the key fact
that motivates this motion at M. Shah’s deposition on August 11, 2017. (See
Pl. Br. 10). See also Geo-Group IV, 2020 WL 5743516, at *14. The Court
already considered and rejected Plaintiff’s argument that its delay in identifying
this evidence was justified. As the Court explained in Geo-Group IV, where
Plaintiff raised the same arguments about purportedly new evidence, Plaintiff
has already
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 after the Court’s summary judgment
decision. Indeed, ... 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. The same is true here, and Plaintiff still offers no excuse for its
unreasonable delay in identifying publicly available evidence. (See generally Pl.
Br., Pl. Reply). 3 Instead, Plaintiff reiterates the same arguments that it

3

Plaintiff says it had no reason to know of the specific fact that Melville was likely a shell
company until October of 2019, when it “was in the midst of preparing its motion
papers” in support of summary judgment. (Pl. Br. 11). But this assertion fails to
explain why Plaintiff failed to pursue evidence of the LLC Defendants’ fraud and/or
Chand’s false statements promptly after learning from M. Shah in August of 2017 that
the antecedent debt at issue in the instant motion was not, in fact, discharged by an
allegedly fraudulent transfer. See Geo-Group IV, 2020 WL 5743516, at *12. If Plaintiff

5

Case 1:15-cv-01756-KPF Document 305 Filed 11/16/20 Page 6 of 6

advanced in its first motion for reconsideration, focusing on evidence that it
has already admitted failing to pursue with the necessary diligence. 4
Therefore, even if Plaintiff had pointed to new evidence, a change in law, or
clear error in Geo-Group IV to correct, Plaintiff’s second motion for
reconsideration would still fail on the merits.
For the foregoing reasons, Plaintiff’s motion for reconsideration is
DENIED. The Clerk of Court is directed to terminate the motion at docket
entry 297.
SO ORDERED.
Dated:

November 16, 2020
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

were diligently pursuing its first motion for reconsideration against the LLC Defendants
(and thus, pursuing evidence of fraud, including this evidence), it would not have
waited more than two years — after a complete round of summary judgment briefing —
to look into the publicly available corporate histories of the beneficiaries of the alleged
fraud. See, e.g., Rockland Exposition, Inc. v. All. of Auto. Serv. Providers of N.J., 894 F.
Supp. 2d 288, 341 (S.D.N.Y. 2012) (finding that delay of 11 months merited denial of
motion for reconsideration).
4

Plaintiff also argues that evidence obtained from non-party Neminath and from
Neminath’s accountant further constitute new evidence that justifies reconsideration.
(Pl. Reply 7-8). The Court has already addressed and rejected these arguments at great
length in Geo-Group IV. See 2020 WL 5743516, at *11-14. Plaintiff offers no new
argument on this issue, and thus reconsideration on this basis is not justified.

6