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Ganay v. Ganay

United States District Court, Second Circuit

April 29, 2013

FRANCES SPENCE DE GANAY, Plaintiff,
v.
THIERRY DE GANAY, SOCIETE PAC, S.A., JEAN-LOUIS LARIVIERE, BRIGITTE RICHARD, THIERRY LEGER, Defendants.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

I. Introduction

Presently before the Court is plaintiff Frances Spence de Ganay ("plaintiff")'s motion for reconsideration of our Memorandum and Order of December 6, 2012, denying her motion for default judgment and dismissing her complaint for lack of personal jurisdiction. See de Ganay v. de Ganay, No. 11 Civ. 6490 (NRB), 2012 WL 6097693 (S.D.N.Y. Dec. 6, 2012). For the following reasons, plaintiff's motion is denied.

II. Background

This is a common law fraud action commenced by plaintiff against several defendants, including her former spouse, Thierry de Ganay, based on allegedly false statements made by defendants in the course of judicial proceedings relating to plaintiff's divorce. The alleged misrepresentations primarily concern whether a Paris apartment lived in by plaintiff and her exhusband was a marital residence for purposes of their prenuptial agreement, such that the personal property within the apartment should have been distributed to plaintiff. We need not recount additional details of the parties' dispute here, as they are set out in our Memorandum and Order of December 6, 2012, see de Ganay, 2012 WL 6097693, at *1-*4, and thus we will proceed directly to the procedural history.

Plaintiff filed her complaint on September 16, 2011. After defendants had not answered or otherwise responded within twenty-one days of service, plaintiff moved for default judgment on April 22, 2012. Mr. de Ganay filed an opposition on June 20, 2012, arguing inter alia that we do not have personal jurisdiction over him. Def.'s Mem. of Law in Opp. to Request to Enter Default 9-15. Plaintiff did not submit a reply.

On December 6, 2012, we issued a Memorandum and Order denying plaintiff's motion for default judgment and dismissing her complaint for lack of personal jurisdiction. See de Ganay, 2012 WL 6097693. We observed that "the only available [statutory] basis for personal jurisdiction is [Federal Rule of Civil Procedure] 4(k)(1)(A), establishing jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.'" Id. at *5 (quoting Fed.R.Civ.P. 4(k)(l)(A)). However, plaintiff had not demonstrated that general personal jurisdiction exists under N.Y. C.P.L.R. § 301, id., nor had he demonstrated that specific personal jurisdiction exists under N.Y. C.P.L.R. § 302, id. at *6-*7. On this basis, we denied plaintiff's motion for default judgment and dismissed her complaint. See id. at *7-*8.

On February 25, 2013, plaintiff moved for reconsideration of our Memorandum and Order of December 6, 2012.[1] Mr. de Ganay filed an opposition on March 12, 2013, and plaintiff filed her reply on March 19, 2013.

III. Discussion

A. Legal Standard

Plaintiff moves for reconsideration pursuant to Local Civil Rule 6.3.[2] "Reconsideration is appropriate only where a court has overlooked controlling decisions or facts presented in the underlying motion which, had they been considered, might reasonably have altered the result of the initial decision."[3] In re Fosamax Prods. Liab. Litig. , 815 F.Supp.2d 649, 651-52 (S.D.N.Y. 2011) (citing Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir. 1995)). Because the remedy of reconsideration does not provide relief "where a party failed to present relevant factual or legal arguments, " id. at 651, a party seeking reconsideration "may not advance new facts, issues or arguments not previously presented to the Court, " id. (quoting E.E.O.C. v. Fed. Express Corp. , 268 F.Supp.2d 192, 199 (E.D.N.Y. 2003)). Reconsideration is "an extraordinary remedy to be employed sparingly, " given the interests of finality and conservation of scarce judicial resources, Small v. Nobel Biocare USA, LLC, Nos. 05 Civ. 3225 (NRB), 06 Civ. 683 (NRB), 2012 WL 952396, at *1 (S.D.N.Y. Mar. 21, 2012) (quoting Liu v. Credit Suisse First Boston Corp. (In re Initial Pub. Offering Sec. Litig.) , 399 F.Supp.2d 298, 300 (S.D.N.Y. 2005)) (internal quotation mark omitted), and "[t]he decision to grant or deny a motion for reconsideration is within the sound discretion of the district court, '" id. at *2 (quoting Families for Freedom v. U.S. Customs & Border Protection, No. 10 Civ. 2705 (SAS) , 2011 WL 4599592, at *2 (S.D.N.Y. Sept. 30, 2011)).

B. Analysis

In her motion for reconsideration, plaintiff argues that our decision of December 6, 2012, was in error because we overlooked allegations in her complaint that allegedly support personal jurisdiction under CPLR section 302(a)(2). Pl.'s Mem. of Law 4; Frances Spence de Ganay Affirmation (Feb. 25, 2013) ¶ 3. Section 302(a)(2) provides for personal jurisdiction over any person who, either himself or through an agent, "commits a tortious act within the state, " where plaintiff's cause of action arises from that tortious act. N.Y. C.P.L.R. § 302(a)(2).

Here, plaintiff argues that her claim, "far from being limited to misrepresentations to French courts in France, '... is also founded upon fraudulent representations to state and federal courts in New York." Pl.'s Mem. of Law 5 (quoting de Ganay, 2012 WL 6097693, at *7). Plaintiff cites sections of her complaint in which she alleged that defendants secured recognition of the French divorce judgment in New York by representing to New York state and federal courts that plaintiff and her husband resided in France, allegedly in contradiction to defendants' representations to French courts that the Paris apartment was not a marital residence. See id. at 5-7 (citing Compl. ¶¶ 53-54, 56-60). Additionally, plaintiff cites her allegation that "Mr. de Ganay's attorney, Robert Michaels, made efforts to conceal the fraud on the French courts by stating [to a New York state court]... that [n]o extrinsic or intrinsic fraud occurred in the adjudication resulting in the French Judgments.'" Id. at 8 (quoting Compl. ¶ 61) (internal quotation marks omitted). According to plaintiff, these misrepresentations justify personal jurisdiction under section 302(a)(2) because they were made ...


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