SKAT v. Headsail Manufacturing LLC Roth 401K Plan et al

Filing 357

MEMO ENDORSED ORDER denying (345) Motion for Reconsideration in case 1:18-cv-07824-LAK; denying (348) Motion for Reconsideration in case 1:18-cv-07827-LAK; denying (346) Motion for Reconsideration in case 1:18-cv-07828-LAK; denying (348) Motion f or Reconsideration in case 1:18-cv-07829-LAK; denying (1211) Motion for Reconsideration in case 1:18-md-02865-LAK; denying (345) Motion for Reconsideration in case 1:19-cv-01781-LAK; denying (346) Motion for Reconsideration in case 1:19-cv-01783-L AK; denying (345) Motion for Reconsideration in case 1:19-cv-01785-LAK; denying (353) Motion for Reconsideration in case 1:19-cv-01788-LAK; denying (351) Motion for Reconsideration in case 1:19-cv-01791-LAK; denying (346) Motion for Reconsiderati on in case 1:19-cv-01792-LAK; denying (350) Motion for Reconsideration in case 1:19-cv-01794-LAK; denying (353) Motion for Reconsideration in case 1:19-cv-01798-LAK; denying (353) Motion for Reconsideration in case 1:19-cv-01800-LAK; denying (353) Motion for Reconsideration in case 1:19-cv-01801-LAK; denying (353) Motion for Reconsideration in case 1:19-cv-01803-LAK; denying (341) Motion for Reconsideration in case 1:19-cv-01806-LAK; denying (348) Motion for Reconsideration in case 1:19-c v-01808-LAK; denying (349) Motion for Reconsideration in case 1:19-cv-01809-LAK; denying (352) Motion for Reconsideration in case 1:19-cv-01810-LAK; denying (382) Motion for Reconsideration in case 1:19-cv-01812-LAK; denying (354) Motion for Reco nsideration in case 1:19-cv-01813-LAK; denying (347) Motion for Reconsideration in case 1:19-cv-01815-LAK; denying (353) Motion for Reconsideration in case 1:19-cv-01818-LAK; denying (356) Motion for Reconsideration in case 1:19-cv-01866-LAK; deny ing (325) Motion for Reconsideration in case 1:19-cv-01867-LAK; denying (322) Motion for Reconsideration in case 1:19-cv-01868-LAK; denying (329) Motion for Reconsideration in case 1:19-cv-01869-LAK; denying (343) Motion for Reconsideration in ca se 1:19-cv-01870-LAK; denying (326) Motion for Reconsideration in case 1:19-cv-01871-LAK; denying (319) Motion for Reconsideration in case 1:19-cv-01873-LAK; denying (328) Motion for Reconsideration in case 1:19-cv-01894-LAK; denying (319) Motion for Reconsideration in case 1:19-cv-01896-LAK; denying (350) Motion for Reconsideration in case 1:19-cv-01918-LAK; denying (341) Motion for Reconsideration in case 1:19-cv-01922-LAK; denying (339) Motion for Reconsideration in case 1:19-cv-01926- LAK; denying (345) Motion for Reconsideration in case 1:19-cv-01928-LAK; denying (343) Motion for Reconsideration in case 1:19-cv-01929-LAK; denying (349) Motion for Reconsideration in case 1:19-cv-01931-LAK; denying (338) Motion for Reconsiderat ion in case 1:19-cv-10713-LAK; denying (176) Motion for Reconsideration in case 1:21-cv-05339-LAK. ENDORSEMENT: Defendant's motion (Dkt 1211) is denied. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 10/24/24) Filed In Associated Cases: 1:18-md-02865-LAK et al. (yv)

Case 1:18-md-02865-LAK

Document 1211

Filed 10/02/24

Page 1 of 4

MEMO ENDORSED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
In re
CUSTOMS AND TAX ADMINISTRATION
OF THE KINGDOM OF DENMARK
(SKATTEFORVALTNINGEN) TAX
REFUND SCHEME LITIGATION

MASTER DOCKET
18-md-2865 (LAK)

This document relates to:
18-cv-07824; 18-cv-07827; 18-cv-07828;
18-cv-07829; 19-cv-01781; 19-cv-01783;
19-cv-01785; 19-cv-01788; 19-cv-01791;
19-cv-01792; 19-cv-01794; 19-cv-01798;
19-cv-01800; 19-cv-01801; 19-cv-01803;
19-cv-01806; 19-cv-01808; 19-cv-01809;
19-cv-01810; 19-cv-01812; 19-cv-01813;
19-cv-01815; 19-cv-01818; 19-cv-01866;
19-cv-01867; 19-cv-01868; 19-cv-01869;
19-cv-01870; 19-cv-01871; 19-cv-01873;
19-cv-01894; 19-cv-01896; 19-cv-01918;
19-cv-01922; 19-cv-01926; 19-cv-01928;
19-cv-01929; 19-cv-01931; 19-cv-10713;
21-cv-05339.

DEFENDANTS’ MOTION FOR PARTIAL RECONSIDERATION OF THE COURT’S
ORDER ON MOTION IN LIMINE REGARDING COMPARATIVE FAULT
PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law, dated
October 2, 2024, and under Rule 60(b) of the Federal Rules of Civil Procedures and Local Civil
Rule 6.3 of the Local Rules of the United States District Court for the Southern District of New
York, Defendants, by their undersigned attorneys, move the Court to reconsider its order dated
September 18, 2024 as to the 2016 National Audit Office Report.

1

10/24/24

Memorandum Endorsement In re Customs and Tax Admin., Master Docket 18-md-2865 (LAK)
Defendants move (Dkt 1211) for partial reconsideration of this Court’s order (Dkt
1195) granting in part plaintiff’s motion in limine (Dkt 1139) to exclude evidence that defendants
claim supports their comparative fault or statute of limitations defenses. The motion is denied.
Plaintiff moved in limine to“exclude certain evidence defendants claim supports their
comparative fault or statute of limitations defenses” pursuant to Federal Rules of Evidence 401 and
403.1 Plaintiff’s motion specifically sought to exclude a number of internal SKAT documents and,
relevant here, a 2016 report issued by the Danish National Audit Office (the “2016 National Audit
Office Report” or “2016 Report”). Defendants opposed the motion. With respect to the 2016
Report, they devoted more than six pages to developing two theories of relevance. They argued first
that “[t]he retrospective analysis of the National Audit Office of Denmark is directly relevant to
when SKAT should have known of its claims.”2 Next, they argued that “the 2016 report is also
relevant . . . . [because] [i]t contains data on the net withholding tax collected and refunds paid that
are relevant to assessing whether SKAT can meet its burden of proving loss.”3 Holding that the
2016 Report would not be relevant to defendants’ anticipated statute of limitations defenses but that
the data contained in the report conceivably could be relevant to determining plaintiff’s loss amount,
the Court excluded the 2016 Report “except to the extent that it contains data relevant to SKAT’s
loss amount.”4
The Court’s ruling with respect to two other pieces of evidence is relevant here.
Plaintiff moved also to exclude several audit reports issued by the Danish Ministry of Taxation’s
internal audit agency (“SIR”). The Court denied plaintiff’s motion as to SIR Reports issued in 2010
and 2015 except “to the extent that [they] show[] that SKAT lacked the ability or otherwise failed
to verify the veracity of refund claims,”5 which, defendant had argued, would be relevant to the
issues of “reasonable reliance, comparative negligence or the balancing of the equities.”6 Defendant
had not advanced this theory of relevance for the 2016 Report.
Latching onto this relevance ground, defendants’ motion for reconsideration argues
that the 2016 Report would be relevant because, like the 2010 and 2015 SIR Reports, it is “replete
1

Dkt 1141.
2

Dkt 1163 at 16.
3

Id. at 17.
4

Dkt 1195 at 5.
5

Id.
6

Dkt 1163 at 14.

2
with ‘evidence that SKAT lacked the ability or otherwise failed to verify the veracity of a refund
claim.’”7 This, defendants say, is relevant to “reasonable reliance, comparative negligence, and the
balance of equities.”8 Plaintiff opposes the motion, arguing that defendants fail to satisfy the strict
criteria for reconsideration. The Court agrees.
“Reconsideration of a previous order is an extraordinary remedy, to be used
sparingly.” It is available “only if the movant demonstrates that the Court overlooked controlling
decisions or factual matters that were put before the Court on the underlying motion. Such a motion
may not advance new facts, issues or arguments not previously presented to the [C]ourt.”10
9

Defendants do not identify previously identified law or facts overlooked by the
Court’s order. Instead, they highlight findings from the 2016 Report that, they say, go to reasonable
reliance, comparative negligence, and the equities. But defendants did not raise this theory of
relevance in their initial opposition to plaintiff’s motion, nor did they emphasize the 2016 Report’s
factual findings on which they focus now.11 In other words, it appears that they seek a ‘do over’ so
that they can switch to a faster horse. But “a motion for reconsideration should not be treated as a
second bite at the apple for a party dissatisfied with a court’s ruling.”12 Defendants impermissibly
seek in their motion “to advance new theories or adduce new evidence in response to the court’s

7

Dkt 1212 at 2 (quoting Dkt 1195 at 4).
8

Id. at 4 (internal quotation marks omitted).
9

Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 598 (S.D.N.Y. 2008), aff’d, 355 F. App’x 487
(2d Cir. 2009) (internal quotation marks omitted).
10

In re Rezulin Prod. Liab. Litig., 224 F.R.D. 346, 349 (S.D.N.Y. 2004) (internal quotation
marks omitted); see In re Transcare Corp., No. 20-cv-06274 (LAK), 2021 WL 5909794, at
*1 (S.D.N.Y. Dec. 14, 2021); U.S. Dist. Ct. Rules S.D.N.Y., Civil Rule 6.3.
11

While defendants’ brief in opposition to plaintiff’s motion did allude to this theory in
passing, they did not call it adequately to the Court’s attention nor did they explain how the
2016 Report’s findings fit into that theory. It is not the Court’s obligation to “sift through”
exhibits to find relevant evidence. Carmel v. CSH & C, 32 F. Supp. 3d 434, 436 (W.D.N.Y.
2014); see United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like
pigs, hunting for truffles buried in briefs.”).
12

City of New York v. Venkataram, No. 06-cv-6578 (NRB), 2009 WL 3321278, at *1
(S.D.N.Y. Oct. 7, 2009) (internal quotation marks omitted).