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Sedona Corp. v. Ladenburg Thalmann & Co.

July 18, 2006

SEDONA CORPORATION, PLAINTIFF,
v.
LADENBURG THALMANN & CO., INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

MEMORANDUM OPINION AND ORDER

Defendants Amro International, S.A. ("Amro"), Roseworth Group Limited ("Roseworth"), Cambois Finance Inc. ("Cambois"), Rhino Advisors, Inc. ("Rhino"), Thomas Badian ("Badian"), UltraFinanz AG ("UltraFinanz"), and H.U. Bachofen ("Bachofen")*fn1 (collectively, the "Amro Settlement Defendants"); Ladenburg Thalmann & Co., Inc. ("Ladenburg"); Dr. Batliner and Partner, Hans Gassner ("Gassner"), and Dr. Herbert Batliner ("Dr. Batliner") (collectively, the "Batliner Defendants"); Markham Holdings Limited ("Markham"); Pershing, LLC ("Pershing"); Westminster Securities Corporation ("Westminster"); Wm. V. Frankel & Co., Inc. ("Frankel"); David Boris ("Boris"); Joseph A. Smith ("Smith"); Thomas Tohn ("Tohn"); and Michael Vasinkevich ("Vasinkevich"), move this Court pursuant to Local Civil Rule 6.3 for reconsideration of the Court's August 8, 2005, decision (the "Order") granting in part and denying in part their respective motions tc dismiss Plaintiff Sedona Corporation's ("Plaintiff' or "Sedona") First Amended Complaint ("Complaint"). See Sedona Corp. v. Ladenburg Thalmann & Co., Inc., No. 03 Civ. 3120(LTS), 2005 WL 1902780 (S.D.N.Y. Aug. 9, 2005). Defendants Vasinkevich, Tohn and Pershing further move, pursuant to Federal Rule of Civil Procedure 60(b)(1), to correct perceived mistakes. Plaintiff, by letter dated May 31, 2006, seeks permission to amend its allegations with respect to Defendant Pershing.

Familiarity with the Court's Order is presumed. The Court has considered thoroughly the parties' submissions in connection with the instant motions, and will address the merits of each motion in turn. Capitalized terms have the meanings set forth in the Order unless indicated otherwise here.

DISCUSSION

Federal Rule of Civil Procedure 60(b)(1) Motions

Federal Rule of Civil Procedure 60(b)(1) provides that, in the event of "mistake, inadvertence, surprise, or excusable neglect," the Court may, upon a motion, "relieve a party . . . from a final judgment [or] order." Fed. R. Civ. P. 60(b)(1). Pursuant to the Rule, a Court may "relieve a party from the effects of a judgment based on the court's own mistake of fact," as well as a mistake of law. In re: 310 Assocs., 346 F.3d 31, 32, 35 (2d Cir. 2003).

Pershing

The "Conclusion" section of the Order incorrectly listed Pershing's motion to dismiss Sedona's Second claim for relief as "denied." (Order, 50.) As a result, Pershing's motion to dismiss the civil conspiracy claim against it was also "denied." (See id.) As the Court noted in the Order, the Complaint is devoid of allegations of scienter as to Defendant Pershing; the Court therefore intended to dismiss all fraud-based claims for relief as against Pershing. Accordingly, the Order is hereby amended to the extent that Pershing's motion to dismiss the Complaint is granted, without prejudice, in its entirety. Pershing's motion for reconsideration is denied as moot. Sedona's letter request, dated May 31, 2006, to amend its allegations against Pershing is granted.

Boris

To the extent Defendants Ladenburg and Boris' motion for reconsideration includes a motion on behalf of Boris to correct a mistake, such motion is granted. The Court neglected to include Boris in a list of Defendant representatives as to whom Sedona failed to adequately allege a strong inference of scienter in connection with its market manipulation claim. (See Order, 29.) Accordingly, Boris' motion to dismiss Sedona's Second claim for relief is granted. The sole remaining claim against Boris is for control person liability for Defendant Ladenburg's alleged fraudulent activity.

Vasinkevich & Tohn

Defendants Vasinkevich and Tohn's motion to correct a mistake is denied. Vasinkevich and Tohn argue that, in light of the Court's conclusion as to Sedona's claim for market manipulation against them, the failure to dismiss the First, Fifth and Sixth claims for relief must have been a mistake. However, as explained on pages 25-27 of the Order, the Complaint specifically alleges that both Vasinkevich and Tohn knowingly made false statements. Those allegations of misrepresentations and/or omissions are sufficient to support the scienter elements of the First and Fifth claims for relief, and provide an underlying substantive basis for the Sixth claim for conspiracy. Accordingly, the motion to dismiss those claims as against Vasinkevich and Tohn was properly denied.

Motions for Reconsideration

Motions for reconsideration "are committed to the sound discretion of the district court." Jordan v. Metro. Life Ins. Co., No. 03 Civ. 4110(SAS), 2004 WL 1752822, at *2 (S.D.N.Y. Aug. 4, 2004). Reconsideration "is 'an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'" Montanile v. Nat'l Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002) (quoting In re Health Mgmt. Sys. Inc. Secs. Litig, 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). Thus, the standard "must be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Hoffenberg v. Hoffman & Pollok, 296 F. Supp. 2d 504, 505 (S.D.N.Y. 2003) (internal quotation marks omitted).

In the Southern District of New York, motions for reconsideration are governed by Local Civil Rule 6.3. Pursuant to Local Civil Rule 6.3, the party moving for reconsideration "must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision." Montanile, 216 F. Supp. 2d at 342. "Alternatively, the [c]ourt may grant the motion to correct a clear error or prevent manifest injustice." Global View Ltd. Venture ...


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