The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
This class action concerns foreign currency conversion fees
imposed by defendant Citibank (South Dakota), N.A. ("Defendant"
or "Citibank") on its credit cardholders. Plaintiff Gilbert
Schrank ("Plaintiff" or "Schrank") asserts claims pursuant to New
York consumer protection statutes and the common law of New York
and other states.
Plaintiff moves for reconsideration of this Court's Memorandum
and Order, dated December 2, 2004, certifying a class of New York
state residents suing under the New York Personal Property Law.
For the reasons set forth below, Plaintiff's motion is granted in
part and denied in part. BACKGROUND
The relevant facts are described in detail in this Court's
prior Memoranda and Orders. See Schrank v. Citibank (South
Dakota), N.A., No. 03 Civ. 2843, 2004 WL 2750091 (S.D.N.Y. Dec.
2, 2004); Schrank v. Citibank (South Dakota), N.A., No. 1409,
21-95, 2003 WL 22097502 (S.D.N.Y. Sept. 10, 2003); see also In
re Currency Conversion Fee Antitrust Litig., No. 1409, 21-95,
2005 WL 1405993 (S.D.N.Y. June 16, 2005) ("Currency Conversion
IV"); In re Currency Conversion Fee Antitrust Litig.,
361 F. Supp. 2d 237 (S.D.N.Y. 2005) ("Currency Conversion III"); In
re Currency Conversion Fee Antitrust Litig., 224 F.R.D. 555
(S.D.N.Y. 2004) ("Currency Conversion II"); In re Currency
Conversion Fee Antitrust Litig., 265 F. Supp. 2d 385 (S.D.N.Y.
2003) ("Currency Conversion I").
Schrank asserts six claims in his Complaint: (1) violation of
New York Personal Property Law ("NYPPL"), Article 10, §
413(3)(a); (2) violation of New York General Business Law § 349
("Section 349"); (3) common law fraud; (4) unconscionable fees
under the common law and UCC § 2-202; (5) violation of the duty
of good faith and fair dealing pursuant to common law and UCC §
1-203; and (6) unjust enrichment. Following the removal and
transfer of this action to this Court, Plaintiff sought
certification of two classes, a New York class for New York
statutory claims and a national class for common law claims. This
Court certified a New York class consisting of "[a]ll New York
State residents issued Citibank, Visa or MasterCard credit cards
who did not agree to arbitrate their claims and were assessed a
foreign currency conversion fee in violation of the New York
Personal Property Law." Schrank, 2004 WL 2750091, at *9.
Schrank moves for reconsideration arguing that this Court
should have certified a New York class with respect to all
claims. (Plaintiff's Memorandum in Support of Motion for Reconsideration ("Pl. Mem.") at 4-10.) In addition, Schrank
contends that a national class is appropriate for his claims of
breach of good faith and fair dealing and unjust enrichment. (Pl.
Mem. at 10-12.) Plaintiff also asserts that Citibank has waived
its right to compel arbitration by litigating the action in this
forum and benefiting from discovery not available in arbitral
proceedings. (Pl. Mem. at 12-17.)
Defendant counters that Plaintiff's motion is an improper
attempt to reargue issues that this Court has already decided and
raise new arguments not addressed in the initial motion papers.
(Defendant's Memorandum in Opposition to Reconsideration ("Def.
Mem.") at 2-3.) Citibank also contends that it has not waived its
right to compel arbitration. (Def. Mem. at 7-8.)
I. Motion for Reconsideration Standard
"A motion for reconsideration should be granted only where the
moving party demonstrates that the Court has overlooked factual
matters or controlling precedent that were presented to it on the
underlying motion and that would have changed its decision."
Colodney v. Continuum Health Partners, Inc., No. 03 Civ. 7276
(DLC), 2004 WL 1857568, at *1 (S.D.N.Y. Aug. 18, 2004) (internal
quotation marks and citation omitted). Such a motion "should not
be granted where the moving party seeks solely to relitigate an
issue already decided." Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995). Indeed, reconsideration is not an
opportunity to take "a `second bite at the apple' for a party
dissatisfied with a court's ruling." Pannonia Farms, Inc. v. USA
Cable, No. 03 Civ. 7841 (NRB), 2004 WL 1794504, at *2 (S.D.N.Y.
Aug. 10, 2004). In addition, "a motion for reconsideration cannot
assert new arguments or claims which were not before the court on
the original motion." Koehler v. Bank of Bermuda, Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1
(S.D.N.Y. May 10, 2005); accord Am. Hotel Int'l Group v.
OneBeacon Ins. Co., No. 01 Civ. 0654 (RCC), 2005 WL 1176122, at
*1 (S.D.N.Y. May 18, 2005). Under Local Rule 6.3, "[t]he standard
for granting such a motion is strict, and reconsideration will
generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked."
Shrader, 70 F.3d at 257. Whether reconsideration is appropriate
is "within the sound discretion of the district court."
Colodney, 2004 WL 1857568, at *1.
Plaintiff does not point to any "controlling decisions or data"
that this Court overlooked in rendering its class certification
decision. Instead, Schrank reiterates arguments previously
addressed by this Court or presents entirely new arguments, both
impermissible grounds for reconsideration.
This Court considered and rejected Plaintiff's argument with
respect to certification of his Section 349 claim. That section
requires proof of causation, which this Court previously
concluded "entails individual inquiries" not appropriate for
class certification under Rule 23(b)(3). See Schrank, 2004 WL
2750091, at *6-7. In addition, this Court held that Plaintiff's
claims were not typical of the claims of other class members.
Schrank's claims may be subject to certain defenses not
applicable to the rest of the class and as such, unique and
ineligible for class certification under Rule 23(a)(3).
Schrank, 2004 WL 2750091, at *4.
Similarly, this Court previously decided that Schrank's unjust
enrichment claim is not amenable to national class certification.
Variations in the laws of fifty different states eviscerate any common issues that may ...