Universitas Education, LLC v. T.D. Bank, N.A.

Filing 28

MEMORANDUM OPINION AND ORDER re: 25 MOTION for Reconsideration of December 21, 2015 Decision and Order filed by Universitas Education, LLC, individually and on behalf of the CHARTER OAK TRUST. For the foregoing reasons, plaintiff's motion is DENIED. The Clerk of the Court is directed to close this motion (Dkt. No. 25). (As further set forth in this Order.) (Signed by Judge Shira A. Scheindlin on 1/5/2016) (kko)

controlling decisions or data that the court overlooked.’”1 “Reconsideration of a
court’s previous order is an ‘extraordinary remedy to be employed sparingly in the
interests of finality and conservation of scarce judicial resources.’”2 Typical
grounds for reconsideration include “an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.”3
The purpose of Local Rule 6.3 is to “‘ensure the finality of decisions
and to prevent the practice of a losing party examining a decision and then
plugging the gaps of a lost motion with additional matters.’”4 Local Rule 6.3 must

1

Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d
Cir. 2012) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
2

Oji v. Yonkers Police Dep’t, No. 12 Civ. 8125, 2013 WL 4935588, at
*1 (S.D.N.Y. Sept. 11, 2013) (quoting Parrish v. Sollecito, 253 F. Supp. 2d 713,
715 (S.D.N.Y. 2003)).
3

Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (quotation omitted). See also Shrader, 70 F.3d at 257
(describing grounds for reconsideration as “matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court”).
4

In re Optimal U.S. Litigation, 813 F. Supp. 2d 383, 387 (S.D.N.Y.
2011) (quoting Grand Crossing, L.P. v. United States Underwriters Ins. Co., No.
03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008)). Accord
Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 233 F.R.D.
355, 361 (S.D.N.Y. 2005) (“[A] movant may not raise on a motion for
reconsideration any matter that it did not raise previously to the court on the
underlying motion sought to be reconsidered.”).
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be “‘narrowly construed and strictly applied so as to avoid repetitive arguments on
issues that have been considered fully by the Court.’”5 Courts have repeatedly
been forced to warn counsel that such motions should not be made reflexively, to
reargue “‘those issues already considered when a party does not like the way the
original motion was resolved.’”6 A motion for reconsideration is not an
“‘opportunity for making new arguments that could have been previously
advanced,’”7 nor is it a substitute for appeal.8
II.

DISCUSSION
While plaintiff is quick to note that motions for reconsideration are

“not vehicles in which a party may get two bites at the apple,”9 the entirety of its
motion for reconsideration concerns equitable tolling — a form of relief not
5

Simon v. City of New York, No. 14 Civ. 8391, 2015 WL 4092389, at
*1 (S.D.N.Y. July 6, 2015) (quoting United States v. Treacy, No. 08 Cr. 0366,
2009 WL 47496, at *1 (S.D.N.Y. Jan. 8, 2009)).
6

Flood v. Carlson Rests, Inc., No. 14 Civ. 2740, 2015 WL 6870490, at
*2 (S.D.N.Y. Nov. 9, 2015) (quoting Makas v. Orlando, No. 06 Civ. 14305, 2008
WL 2139131, at *1 (S.D.N.Y. May 19, 2008)).
7

Stone v. Theatrical Inv. Corp., 80 F. Supp. 3d 505, 506 (S.D.N.Y.
2015) (quoting Associated Press v. United States Dep’t of Defense, 395 F. Supp.
2d 17, 19 (S.D.N.Y. 2005)).
8

See Amtrust North America, Inc. v. Safebuilt Ins. Servs., Inc., No. 14
Civ. 9494, 2015 WL 9480080, at *1 (S.D.N.Y. Dec. 22, 2015).
9

Plaintiff’s Memorandum of Law in Support of its Motion for
Reconsideration (“Pl. Mem.”) at 1.
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requested in plaintiff’s opposition to defendant’s motion to dismiss. Upon a close
review of plaintiff’s opposition papers, this Court can find only one point that
could charitably be characterized as a nod towards equitable tolling, which reads in
full: “Universitas’ claims are timely under New York law. Detailed in Factual
Background, supra, Universitas did not discover the theft of its property, nor could
it have, until at least November 2012.”10 This argument is made in a twoparagraph section answering defendant’s comprehensive argument that plaintiff’s
claims are time-barred, and does not advocate for the application of equitable
tolling, but instead for the application of an incorrect accrual rule to plaintiff’s
claims — accrual upon discovery of an injury, instead of accrual upon occurrence
of the injury itself. While plaintiff may regret not seeking equitable tolling in its
opposition papers, pasting together facts from past briefing and appending an
entirely new argument section is a supplemental opposition brief disguised as a
motion for reconsideration, and is inappropriate.
Even were this Court to accept plaintiff’s invitation to engage in an
equitable tolling analysis, plaintiff has not offered evidence sufficient to “establish
that extraordinary circumstances prevented [it] from filing [its] claim on time, and

10

Plaintiff’s Memorandum of Law in Support of Its Opposition to
Defendant’s Motion to Dismiss at 16.
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that [it] acted with reasonable diligence throughout the period [it] seeks to toll.”11
While plaintiff provides citations to cases applying the federal doctrine of equitable
tolling, the borrowing of a state law statute of limitations (as I did here in disposing
of plaintiff’s common law claims)12 carries with it the borrowing of the state’s
tolling rules.13 “Under New York law, the doctrines of equitable tolling or
equitable estoppel ‘may be invoked to defeat a statute of limitations defense when
the plaintiff was induced by fraud, misrepresentations or deception to refrain from
filing a timely action.’”14 “Such fraud, misrepresentations, or deception must be

11

Parada v. Banco Industrial De Venezuela, C.A., 753 F.3d 62, 71 (2d
Cir. 2014) (citing Phillips v. Generations Family Health Ctr., 723 F.3d 144, 150
(2d Cir. 2013) (quotation marks and alterations omitted)).
12

I would also have declined to equitably toll plaintiff’s federal RICO
claim. Plaintiff discovered its injury — and accrued its RICO claim — in October
2009 when Nova Group refused to release the Charter Oak Trust funds from its
accounts in TD Bank. Universitas could have, at that time, conducted a reasonable
inquiry into TD Bank’s behavior that would have resulted in the same factual
record it received in 2012 after completing arbitration. Instead, Universitas elected
to proceed solely against Nova Group in arbitration, and allowed any possible
claim against TD Bank to become stale. This is not a situation where it was
impossible for Universitas to discover any alleged complicity on the part of TD
Bank until the post-arbitration confirmation subpoenas. Universitas was aware TD
Bank held the Charter Oak Trust funds, and chose not to investigate further.
13

See Twersky v. Yeshiva Univ., 993 F. Supp. 2d 429, 437 (S.D.N.Y.

2014).
14

Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (quoting Doe v.
Holy See (State of Vatican City), 17 A.D.3d 793, 794 (Third Dept. 2005).
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affirmative and specifically directed at preventing the plaintiff from bringing suit;
failure to disclose the basis for potential claims is not enough . . . .”15 Finally,
absent affirmative conduct on the part of a defendant, “the plaintiff must
demonstrate a fiduciary relationship . . . which gave the defendant an obligation to
inform [the plaintiff] of facts underlying the claim.”16
TD Bank and Universitas were not in a fiduciary relationship, and
plaintiff has not so argued. Plaintiff must therefore show affirmative conduct on
the part of TD Bank if equitable tolling is to be applied. Read liberally,
Universitas’s opposition papers could be construed to argue that TD Bank
affirmatively concealed documents relevant to Universitas’s claims by not
promptly responding to Universitas’s subpoenas for documents in Universitas’s
earlier action against Nova Group. However, as Universitas admits in its
briefing,17 TD Bank sought the court’s guidance as to Universitas’s subpoena in
response to threats of legal action from Nova Group should TD Bank comply.18

15

Twersky, 993 F. Supp. 2d at 442.

16

Zumpano v. Quinn, 6 N.Y. 3d 666, 675 (2006).

17

See Pl. Mem. at 8 (“In response, the Nova Group, through baseless
motions and letter campaigns, kept TD Bank from complying with the issued
subpoenas.”).
18

Magistrate Judge Pitman further noted that it was the Nova Group that
was “attemp[ing] to prevent non-party TD Bank, N.A. from complying with [the]
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-AppearancesFor Plaintiff:
Annie E. Causey, Esq.
Napoli Shkolnik PLLC
1301 Avenue of The Americas
New York, NY 10019
[phone]
Marie E. Napoli, Esq.
Napoli Law, PLLC
1301 Avenue of The Americas
New York, NY 10019
[phone]
Paul J. Napoli, Esq.
Napoli Bern Ripka & Associates
350 Fifth Avenue
New York, NY 10118
[phone]
For Defendant:
Jeffrey J. Chapman, Esq.
Aaron F. Jaroff, Esq.
McGuire Woods LLP
1345 Avenue of the Americas
7th Floor
New York, NY 10105
[phone]

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