The opinion of the court was delivered by: Judge James L. Graham*fn1
This matter is before the court on Credit Suisse's motion for reconsideration of the court's order denying Credit Suisse's motion for summary judgment as to plaintiffs' claims for conspiracy and punitive damages. Credit Suisse argues that reconsideration is appropriate because the court did not address certain of Credit Suisse's grounds for summary judgment. For the reasons set forth below, the motion for reconsideration is denied.
A court has authority "to reconsider a prior decision at any time before the entry of final judgment." Shervington v. Village of Piermont, 732 F.Supp.2d 423, 425 (S.D.N.Y. 2010) (citing Fed. R. Civ. P. 54(b) and the inherent power of the court). "The major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, et al., Federal Practice & Procedure § 4478 at 790). Motions for reconsideration should be brought sparingly and not for repeating "arguments already briefed, considered and decided." Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y. 1990).
As an initial matter, the court must express concern about the timeliness of the motion for reconsideration. The undersigned judge, now presiding over this matter pursuant to intercircuit assignment, presided over the consolidated multidistrict proceedings in In re National Century Financial Enterprises, Inc. Investment Litigation, MDL-1565 (S.D. Ohio). The court's decision denying Credit Suisse's motion for summary judgment, see In re Nat'l Century Fin. Enters., Inc., 846 F.Supp.2d 828 (S.D. Ohio 2012), was issued on March 2, 2012 as an order of the United States District Court for the Southern District of Ohio, pursuant to the authority granted to it by the Judicial Panel on Multidistrict Litigation under 28 U.S.C § 1407. The court then noticed a status conference for April 2, 2012, and plaintiffs filed a request for a suggestion of remand to the Panel. Credit Suisse opposed such a suggestion prior to April 2, 2012 so that Credit Suisse could evaluate whether to move for reconsideration. See doc. 1614 filed in Nat'l Century, No. 2:03-md-1565 (S.D. Ohio) ("The Noteholder Plaintiffs' request is premature because Credit Suisse's procedural rights have yet to expire. Credit Suisse has 28 days after the filing of this Court's Opinion to file a motion for reconsideration as to any part of the Opinion."). Credit Suisse did not move for reconsideration and the court filed a suggestion of remand with the Panel on April 2, 2012.
Even after the cases were transferred to the Southern District of New York and assigned to the undersigned judge on November 19, 2012, Credit Suisse waited over two months to move for reconsideration.*fn2 While the court will exercise its discretion to consider Credit Suisse's motion for reconsideration, see Shervington, 732 F.Supp.2d at 425, Credit Suisse's delay is troubling, particularly when the basis for its motion is not a recent change in the law or emergence of new evidence, but the court's alleged failure to address arguments made in the motion for summary judgment.
Credit Suisse's motion to reconsider is two-fold as it concerns the conspiracy claim. First, it argues that the court failed to properly evaluate whether the Arizona Noteholder plaintiffs had produced sufficient evidence of an agreement or "meeting of the minds." Second, Credit Suisse argues that the court failed to address evidence showing that National Century insiders hid their fraud from Credit Suisse.
An agreement is an essential element of a conspiracy claim. Abacus Fed. Sav. Bank v. Lim, 905 N.Y.S.2d 585, 588 (N.Y. App. Div. 2010). Credit Suisse argues that the court improperly allowed evidence of Credit Suisse's knowledge and assistance in the alleged fraud to substitute as evidence of an agreement. Credit Suisse rightly notes that knowledge and assistance alone amount to aiding and abetting; conspiracy requires the additional element of an agreement. See U.S. v. Tyler, 758 F.2d 66, 70-71 (2d Cir. 1985).
Upon reconsideration, the court adheres to its previous ruling that the Arizona Noteholders produced sufficient evidence from which a jury could find that Credit Suisse tacitly agreed to join National Century's scheme to defraud investors. Nat'l Century, 846 F.Supp.2d at 896-99. The conspiracy claim is, not surprisingly, built on circumstantial evidence. SeeBorden, Inc. v. Spoor Behrins Campbell & Young, Inc., 828 F.Supp. 216, 225 (S.D.N.Y. 1993) ("[D]irect proof of a conspiracy is seldom available, and therefore an illicit agreement may be shown via circumstantial evidence."). As explained in the summary judgment order, "'Proof of tacit, as opposed to explicit, understanding is sufficient to show agreement, and among the factors a fact finder may consider in inferring a conspiracy are the relationship of the parties, proximity in time and place of the acts, and the duration of the actors' joint activity.'" Nat'l Century, 846 F.Supp.2d at 896 (quoting Borden, 828 F.Supp. at 225).
The court's order carefully explained how, given the evidence of its knowledge, Credit Suisse's actions could be viewed by a reasonable jury as something more than mere assistance. The court examined clear evidence of a sequence of cooperative actions between representatives at Credit Suisse and National Century, as well as evidence of those parties' interdependence in ...