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In Re 650 Fifth Avenue and Related Properties

February 6, 2012

IN RE 650 FIFTH AVENUE AND RELATED PROPERTIES


The opinion of the court was delivered by: Richard J. Holwell, District Judge:

MEMORANDUM OPINION AND ORDER

In this civil forfeiture action, claimants to the defendant properties, 650 Fifth Avenue Company, the Alavi Foundation, Assa Corp., and Assa Co. Ltd. (collectively, the "Claimants"), move for reconsideration of the Court's August 12, 2011 Memorandum Opinion and Order (the "Order") denying the Claimants motion to stay interrogatories, depositions, and summary judgment motion practice pending the resolution of an ongoing federal criminal investigation or the running of the applicable statute of limitations. Alternatively, Claimants move for certification of the Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the reasons that follow, the motion is denied.

BACKGROUND

The relevant facts are set forth in the Court's August 12, 2011 Order. In short, the United States government seeks to forfeit the Claimants' interests in certain real estate properties and bank accounts that the government claims are proceeds of, traceable to proceeds of, or involved in laundering proceeds of, services provided to the Islamic Republic of Iran in violation of the International Emergency Economic Powers Act ("IEEPA"). In addition to the forfeiture action, a number of private plaintiffs have filed actions to attach the defendant properties in order to satisfy default judgments the plaintiffs have obtained against Iran.

Throughout the pendency of the civil forfeiture action, the government has been conducting a criminal investigation based largely on the same underlying facts as the forfeiture action. At the time the Court issued the Order, the scope of the criminal investigation included at least two grand jury subpoenas and the execution of at least one search warrant. In addition, the former president of the Alavi Foundation, Farshid Jahedi, was indicted and pled guilty in 2009 to obstructing justice and destroying documents responsive to a government subpoena. Neither the Claimants nor any other person, however, had been indicted based on any substantive charges arising from the conduct alleged in the forfeiture complaint.

On August 12, 2011, the Court issued the Order denying the Claimants' motion to stay interrogatories, depositions, and summary judgment briefing pending the resolution of the criminal investigation. Since the August 12, 2011 Order, the government has continued pursuing its criminal investigation. At present, it has served at least fourteen grand jury subpoenas, twelve of which were served on current or former employees or directors of the Alavi Foundation. (Decl. of Daniel S. Ruzumna in Supp. of the Alavi Foundation's and 650 Fifth Avenue Company's Mot. for Recons., or in the Alternative, Certification of Appeal Pursuant to Section 1292(B) ("Ruzumna Decl."), ¶¶ 2, 3.) Most or all of the subpoenas compel the recipients to provide testimony and documents related to potential violations of the IEEPA, the statute on which the forfeiture action is based. (Id. ¶ 2.) In addition, at least one of the government attorneys assigned to the civil forfeiture action is also assigned to the criminal investigation. (Id.

¶ 4.) However, as at the time of the Court's Order, no indictments have yet occurred.

On September 6, 2011, the Claimants moved for reconsideration of the Order, or, alternatively, for certification of interlocutory appeal.

LEGAL STANDARDS

A.Motion for Reconsideration

"Reconsideration of a court's previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Finkelstein v. Mardkha, 518 F. Supp. 2d 609, 611 (S.D.N.Y. 2007) (internal quotation marks omitted). Under Local Civil Rule 6.3, reconsideration is appropriate if the court overlooked controlling decisions or factual matters which, had they been considered, might reasonably have altered the result of the underlying decision. See Levine v. AtriCure, Inc., 594 F. Supp. 2d 471, 474 (S.D.N.Y. 2009). To that end, "[a]ny controlling decisions or factual matters presented by a litigant for reconsideration must have been put before the Court in the underlying motion." Padilla v. Maersk Line, Ltd., 636 F. Supp. 2d 256, 258 (S.D.N.Y. 2009). Alternatively, a court may grant such a motion to correct a clear error or prevent a manifest injustice. Beljakovic v. Melohn Properties, Inc., 542 F. Supp. 2d 238, 244 (S.D.N.Y. 2005). Finally, "[a] motion for reconsideration is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved." Finkelstein, 518 F. Supp. 2d at 611 (internal quotation marks omitted).

B.Certification for Interlocutory Appeal

Interlocutory appeal is available when an order "involves a controlling question of law as to which there is substantial ground for difference of opinion [and] an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). This section constitutes "a rare exception to the final judgment rule that generally prohibits piecemeal appeals." Koehler v. Bank of Bermuda, Ltd., 191 F.3d 863, 865 (2d Cir. 1996). Thus courts should "exercise great care in making a § 1292(b) certification." Westwood Pharm., Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992).

In determining whether an order involves a controlling question of law, the district court should consider whether: reversal of the district court's opinion could result in dismissal of the action; reversal of the district court's opinion, even though not resulting in dismissal, could significantly affect the conduct of the action; or, the certified issue has precedential value for a large number of cases. Primavera Familienstifung v. Askin, 139 F. Supp. 2d 567, 570 (S.D.N.Y. 2001) (citing Klinghoffer ...


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