Allianz Global Investors GmbH v. Bank Of America Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------X

:

ALLIANZ GLOBAL INVESTORS GMBH, et :

al., : 18 Civ. 10364 (LGS)

Plaintiffs, :

: ORDER

-against- :

:

BANK OF AMERICA CORPORATION, et al., :

Defendants. :

------------------------------------------------------------ X

LORNA G. SCHOFIELD, District Judge:

WHEREAS, on April 30, 2020, an Opinion and Order (the “Opinion”) was issued

granting in part and denying in part Defendants’ motion to dismiss for lack of personal

jurisdiction (Dkt. No. 389). In relevant part, the Opinion denied the motion to dismiss Defendant

Societe Generale (“SocGen”);

WHEREAS, on May 14, 2020, SocGen filed a motion for reconsideration of that holding

(Dkt. No. 399);

WHEREAS, “[a] motion for reconsideration should be granted only when the [movant]

identifies an intervening change of controlling law, the availability of new evidence, or the need

to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc.

v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd. v.

Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)) (internal quotation marks omitted). 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)) (internal quotation marks omitted). The

standard for granting a motion for reconsideration is “strict, and reconsideration will generally be

denied unless the moving party can point to controlling decisions or data that the court

overlooked.” Id. (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995))

(internal quotation marks omitted);

WHEREAS, SocGen does not identify any change of controlling law, any new evidence,

the need to correct a clear error, or prevent injustice. SocGen argues for the first time in its

motion for reconsideration that certain of the chats on which the Opinion relies in finding

personal jurisdiction -- including the chat identified in the Opinion as plausibly referring to

unlawful conduct -- were misattributed to SocGen in the Complaint, and that the actual

participating traders were employees of an unrelated entity. But “[i]t is black letter law that a

motion for reconsideration may not be used to advance new facts, issues or arguments not

previously presented to the Court[.]” Nat'l Union Fire Ins. Co. of Pittsburg, PA v. Las Vegas

Prof'l Football Ltd. P'ship, 409 F. App'x 401, 403 (2d Cir. 2010) (summary order); see also

Tonga Partners, L.P., 684 F.3d at 52 (“[R]econsideration will generally be denied unless the

moving party can point to controlling decisions or data that the court overlooked.” (emphasis

added)). SocGen waived this argument when it failed to raise it in its motion to dismiss, and the

motion for reconsideration is properly denied for that reason alone.1 See Nat'l Union Fire Ins.

Co. of Pittsburg, PA, 409 F. App'x at 403 (“The district court properly determined that the

argument was not properly raised for the first time on a motion for reconsideration, and deemed

it waived—a finding we affirm.”); accord Media Glow Digital, LLC v. Panasonic Corp. of N.

1 That Defendants, in the reply in support of the motion to dismiss, reference Plaintiffs’

opposition and refer to the chat described in paragraph 744 of the Complaint as “the only chat on

which Plaintiffs rely” is not sufficient to find that SocGen’s motion for reconsideration

“maintains the same position” as the motion to dismiss.

Am., No. 16 Civ. 7907, 2020 WL 1812868, at *1 (S.D.N.Y. Apr. 8, 2020) (“[A] request for

reconsideration under Rule 6.3 must demonstrate controlling law or factual matters put before

the court in its decision on the underlying matter that the movant believes the court overlooked

and that might reasonably be expected to alter the conclusion reached by the court.”).

The motion also fails on the merits. SocGen argues that the Court can consider the

transcripts of the chats as “documents upon which the complaint relies and which are integral to

the complaint.” Subaru Distributors Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir.

2005). Accepting for purposes of this Opinion that the chat transcripts are integral to the

Complaint, per the representations made in SocGen’s motion the chat transcripts do not clearly

indicate that the Complaint misrepresents the chat participants. SocGen asserts that the

transcripts of the chats refer to the at-issue participant by an email address at the domain

“sg@reuters.com,” and that domain does not belong to SocGen. But that email domain does not

clearly establish that the author of the email has no relationship with SocGen. SocGen further

argues that a comparison to the chats in which SocGen traders did participate (which allegedly

identify those traders as “[Name] (SOCIETE GENERALE)”) demonstrate that the chat

participants were employed by a different entity, and that “subsequent searches across produced

materials confirm” that this email domain belongs to a different entity. But the additional

investigation required to prove SocGen’s assertion that the Complaint’s allegations are factually

incorrect cannot be taken at this stage of a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), where “it [would be] error for the district court to resolve [a] factual dispute"

in a defendant's favor. Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85-86 (2d Cir.

2013) (emphasis in original).

SocGen’s cited cases are not to the contrary. See Affiliated FM Ins. Co. v. Kuehne +

Nagel, Inc., 328 F. Supp. 3d 329, 334 n.1 (S.D.N.Y. 2018) (interpreting contract attached to

motion to dismiss where third-party plaintiff relied on it in establishing personal jurisdiction);

Palm Beach Strategic Income, LP vy. Salzman, No. 10 Civ. 261, 2011 WL 1655575, at *8

(E.D.N.Y. May 2, 2011), aff'd, 457 F. App’x 40 (2d Cir. 2012), and aff'd, 457 F. App’x 40 (2d

Cir. 2012) (considering contracts appended to different versions of an amended complaint in

motion to dismiss); Columbia Sportswear N. Am., Inc. v. Seirus Innovative Accessories, Inc., No.

3:19 Civ. 00137, 2020 WL 1865858, at *5 (D. Or. Apr. 14, 2020) (granting motion for

reconsideration and dismissing case for lack of personal jurisdiction where the judge to whom

the case was newly transferred found the previous court’s finding that defendants had consented

to jurisdiction was in error). As the Court declines to accept SocGen’s representations as to the

disputed chats, this Opinion does not address SocGen’s arguments as to why the Court lacks

jurisdiction based solely on the remaining chats. Accordingly, it is hereby

ORDERED that SocGen’s motion for reconsideration is DENIED. Plaintiffs’ request to

file an opposition to SocGen’s motion to DENIED as moot.

The Clerk of Court is respectfully directed to close Docket No. 399 and 402.

Dated: May 19, 2020

New York, New York

UNITED STATES DISTRICT JUDGE