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United States District Court, S.D. New York

May 05, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Pro se plaintiffs Susan Augienello ("Augienello"), Richard J. Doran ("Doran"), Philip Einhorn ("Einhorn"), Craig Nazzaro ("Nazzaro") and Eileen Papp ("Papp") (collectively, the "Plaintiffs") have moved pursuant to Local Civil Rule 6.3 and Fed.R.Civ.P. 60 for relief from the March 25, 2004 opinion dismissing the claims against defendant Federal Deposit Insurance Corporation ("FDIC"), as Receiver of Superior Bank, FSB ("Superior") (the "FDIC-Receiver"). See Augienello v. FDIC. 02 Civ. 4317, 2004 WL 585829 (S.D.N.Y. March 25, 2004), or alternately for transfer to the District Court of the District of Columbia. For the following reasons, the motion is denied.

Prior Proceedings

  The proceedings in this case prior to the dismissal of the Plaintiffs' case are recounted in the March 25 opinion, familiarity with which is presumed. In the March 25 opinion, it was held that subject matter jurisdiction was lacking because jurisdiction exists only in the district in which Superior's principal place of business is located or the United States District Court for the District of Columbia, and because Superior's principal place of business is in the Northern District of Illinois. Id., at *5-9. On April 2, 2004, Plaintiffs filed the instant motion. After submission of briefs, the motion was deemed fully submitted on April 28, 2004.

 Plaintiffs' Motion for Reconsideration is Denied

  In addressing the present motion, the Court is mindful that Plaintiffs are proceeding pro se and that their submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Keener, 404 U.S. 519, 520 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "` read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the Court is also aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).

  A motion for reconsideration under Local Civil Rule 6.3" is appropriate where a court overlooks `controlling decisions or factual matters that were put before it on the underlying motion and which, had they been considered, might have reasonably altered the result before the court.'" Banco. de Sequros Del Estado v. Mut. Marine Offices, Inc., 230 F. Supp.2d 427, 428 (S.D.N.Y. 2002) (quoting Range Rd. Music, Inc. v. Music Sales Corp., 90' F. Supp.2d 390, 392 (S.D.N.Y. 2000)). "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 — 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, 257 (2d Cir. 1995). "[A] motion for reconsideration may be granted to `correct a clear error or prevent manifest injustice.'" Banco, 230 F. Supp.2d at 428 (quoting Griffin Indus., Inc, v. Petrojam, Ltd., 72 F. Supp.2d 365, 368 (S.D.N.Y. 1999)). However, this must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temps., Inc., 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 21, 2001).

  Plaintiffs' motion does not present any legal decisions that the Court has overlooked. Plaintiffs have instead submitted twelve numbered "facts," without evidentiary support, which Plaintiffs argue demonstrate that Superior's principal place of business is in New York, and hence that subject matter jurisdiction exists to hear their claim. Each of the facts, however, were either not put before the Court on the underlying motion or were taken into consideration in the March 25 opinion. Accordingly, Plaintiffs have not met the strict standard for reconsideration, and the motion pursuant to Local Civil Rule 6.3 is denied.

 Plaintiffs' Motion for Relief under Rule 60 is Denied

  Plaintiffs' motion states that it is made under Fed.R.Civ.P. 60, but it does not state whether it is made under Rule 60(a) or Rule 60(b). However, because " [a] motion under Rule 60(a) is available only to correct a judgment `for the purpose of reflecting accurately a decision that the court actually made,'" Hodge ex rel. Skiff v. Hodge, 269 F.3d 155, 158 (2d Cir. 2001) (quoting Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995)), and because Plaintiffs have not alleged that the March 25 opinion does not accurately reflect the Court's decision, Plaintiffs' motion will be construed as a motion under Rule 60(b). Rule 60(b) provides, in relevant part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged . . .; or (6) any other reason justifying relief from the judgment.
As explained by the court in Williams v. New York City Dep't of Corrections, 219 F.R.D. 78, 83-84 (S.D.N.Y. 2003), "A motion under Rule 60(b) is addressed to the sound discretion of the trial court." Velez v. Vassallo, 203 F. Supp.2d 312, 333 (S.D.N.Y. 2002) (citing Mendell In Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990)); . . . Rule 60(b) provides an opportunity for courts to balance fairness considerations present in a particular case against the policy favoring the finality of judgments. Kotlicky v. United States Fidelity Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987); Broadway v. City of New York, 2003 WL 21209635, at *3 (S.D.N.Y. May 21, 2003) (Patterson, J.) ("While Rule 60(b) was designed to strike a balance between the interests of fairness and the finality of judgments, `final judgments should not be lightly reopened.'") (citing Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986)); Velez, 203 F. Supp.2d at 333. However, Rule 60(b) motions "are generally granted only upon a showing of exceptional circumstances." Mendell In Behalf of Viacom, 909 F.2d at 731; Nemaizer, 793 F.2d at 61 (holding that Rule 60(b) motions are "extraordinary judicial relief" that can be granted "only upon a showing of exceptional circumstances."); Salomon v. 1498 Third Realty Corp., 148 F.R.D. 127, 128 (S.D.N.Y. 1993).

 In order to prevail on a Rule 60(b) motion, the Second Circuit has held the courts generally "require that the evidence in support of the motion to vacate a final judgment be highly convincing, that a party must show cause for failure to act sooner, and that no undue hardship be imposed on the other parties." Kotlicky, 817 F.2d at 9 (internal quotations and citations omitted). Pro se litigants "are not . . . excused from the requirement that they produce highly convincing' evidence to support a Rule 60(b) motion." Gil v. Vogilano, 131 F. Supp.2d 486, 494 (S.D.N.Y. 2001); see also Broadway v. City of New York, 96 Civ. 2798, 2003 WL 21209635, at *3 (S.D.N.Y. May 21, 2003) ("the heavy burden for securing relief from final judgments applies to pro se litigants as well as to those who are represented by counsel."). Defendant argues that Plaintiffs have not alleged any of the available grounds for relief under Rule 60(b). In reply, Plaintiffs argue that they have alleged neglect, misrepresentation and misconduct on the part of Defendant, and that they have submitted newly discovered evidence. The alleged misrepresentation consists in: 1) Defendant providing misleading information about the management of Superior; 2) Defendant's "hiding behind the corporate veneer constructed by Superior Bank FSB's owners"; and 3) the Defendant's providing only a partial picture of Superior's situation. The newly discovered evidence is a deposition taken from a director of Superior, and handwritten notes from that Director which demonstrate that "the contractual obligations at issue in this case were fully vested . . ."

  Even if the newly discovered evidence proved what Plaintiffs allege, it would make not affect the lack of subject matter jurisdiction. Further, Plaintiffs have not submitted any "highly convincing evidence," Gil, 131 F. Supp.2d at 494, to prove that the Defendant has made any misrepresentations. The heart of the underlying decision is that Superior's principal place of business was in Illinois. See Augienello, 2004 WL 585829, at *7-9. Because Superior operated its business nationwide with offices in Illinois, New York, and eleven other states, the "nerve center" test was applied to determine the principal place of business. Id., at *7 (citing R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979)). It was further held that "the `nerve center' test places the principal place of business at the location of the corporation's headquarters," id. (citing Compucon Distrib. of New England, Inc. v. Cooper, 685 F. Supp. 424, 425 (S.D.N.Y. 1988), which for Superior is in Oakbrook Terrace, Illinois. Nothing submitted by the Plaintiffs has shown that this conclusion was incorrect. Plaintiffs have therefore not met their burden of showing that any exceptional circumstances merit a grant of relief under Rule 60(b).

 Plaintiffs' Request to Transfer is Denied

  Plaintiffs' motion in the alternative to transfer this case to the District Court of the District of Columbia under the motion for reconsideration is denied because no such request was before the Court on the underlying motion. "It is well established that a motion for reconsideration is not the proper vehicle to advance new arguments or theories under the facts alleged." Melnitzky v. Rose, 305 F. Supp.2d 349, 352 (S.D.N.Y. 2004).

  Under Plaintiffs' Rule 60(b) motion, the request could only be considered under exceptional circumstances. See Mendell In Behalf of Viacom, 909 F.2d at 731. A district court may transfer an action after a finding of want of jurisdiction "if it is in the interest of justice." 28 U.S.C. § 1631. However, the Second Circuit has held that it is not in the interest of justice to transfer a meritless claim under § 1631. See Adeleke v. United States, 355 F.3d 144, 152 (2d Cir. 2004) (citing Phillips v. Seiter, 173 F.3d 609, 610-11 (7th Cir. 1999)). In its brief on the underlying motion, the FDIC demonstrated convincingly that Plaintiffs' contract claim had been considered by this Court in the related action and that decision was upheld by the Second Circuit. See Augienello v. Coast-to-Coast Financial Corp., 01 Civ. 11608, 2003 WL 1822926, at *2-3 (S.D.N.Y. Aug. 7, 2002), aff'd, 64 Fed. Appx. 820, 2003 WL 21069080 (2d Cir. May 9, 2003). Further, the cause of action for breach of an implied covenant of good faith and fair dealing would not be enforceable as the federal regulations which terminated the Defendant's obligations under the contract preempt state law in the area of savings and loan industry regulation. See Rush v. FDIC, 747 F. Supp. 575 (N.D. Cal. 1990) ("Congress has developed a comprehensive scheme for regulating the savings and loan industry; thus federal regulations governing the savings and loan industry preempt attempts by states to regulate in that field."). Therefore, no exceptional circumstances exist which would justify transferring this action. Conclusion

  For the foregoing reasons, Plaintiffs' motions to reconsider the March 25 opinion under Local Civil Rule 6.3 and for relief from the judgment under Rule 60(b) are denied.

  It is so ordered.


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