The opinion of the court was delivered by: J. Paul Oetken, District Judge:
Plaintiffs have moved for reconsideration of this Court's Memorandum Opinion and Order dated February 8, 2012 (the "Opinion"), which dismissed the complaint for lack of subject matter jurisdiction. For the reasons set forth below, Plaintiffs' motion for reconsideration will be denied.
The relevant factual allegations and procedural background are described in the Opinion, familiarity with which is assumed.
Motions for reconsideration are governed by Federal Rule of Civil Procedure 60(b) and Local Rule 6.3. Rule 60(b) provides that a court may relieve a party from a final judgment or order on the grounds, among others, of "mistake, inadvertence, surprise, or excusable neglect . . . or . . . any other reason that justifies relief." Local Rule 6.3 states that a motion for reconsideration must set forth "the matters or controlling decisions which counsel believes the Court has overlooked." As the Second Circuit has explained, "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). However, a party is not permitted to raise a new argument in a motion for reconsideration that it failed to raise in the underlying motion. See, e.g., Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 233 F.R.D. 355, 361 (S.D.N.Y. 2005).
Plaintiffs seek reconsideration on four grounds, arguing (1) that the Court erred by relying on evidentiary materials extrinsic to the complaint, (2) that the Court erroneously relied on the U.S. Government's statement in a different case decided in 2009, (3) that the Court erred by overlooking certain international law sources, and (4) that the Court's application of diplomatic immunity contravenes congressional intent and raises constitutional concerns. Each argument is addressed in turn.
Plaintiffs' first argument is that the Court committed "clear error" by relying on a Diplomatic Note of an official of the United States Mission to the United Nations, which certified that Defendant Silva is an officially recognized diplomat entitled to diplomatic immunity. Plaintiffs argue that such reliance was erroneous because courts may not consider matters outside the pleadings in deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
This argument lacks merit. First, the motion was not a Rule 12(b)(6) motion. Rather, as the Opinion makes clear, Silva's letter seeking dismissal was treated and decided as a motion to dismiss for lack of subject matter jurisdiction, i.e., a motion pursuant to Rule 12(b)(1). It is well settled that evidence extrinsic to the pleadings may be considered by a court in deciding a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). See Moser v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002); 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1350, at 160 (3d ed. 2011).
Significantly, Plaintiffs have never disputed Silva's status as a diplomat. Given that undisputed status, diplomatic immunity follows from the governing legal authorities, including the Diplomatic Relations Act, the Vienna Convention, and the Second Circuit case law. See Opinion at 6-7.
Next, Plaintiffs contend that the Court improperly relied on a Statement of Interest submitted by the United States in Sabbithi v. Al Saleh, 605 F. Supp. 2d 122 (D.D.C. 2009). They argue that the Government's statement in that case is outdated, suggesting that its position may change over time.
As the Court previously noted, there is no requirement that the views of the United States be solicited in a given case. The Court did cite Judge Sullivan's opinion in Sabbithi, decided in 2009, which in turn relied (in part) on the Government's Statement in that case. The Court also cited the Sabbithi Statement itself, but only as persuasive authority on the general importance of the broad scope of diplomatic immunity. See Opinion at 9. However, Plaintiffs fail to cite any legal principle or authority that the Court "overlooked" that would oppugn any reliance on the Sabbithi Statement. Here, the pertinent legal ...