United States District Court, S.D. New York
For Estate of Ernest Gottdiener, Estate of Judit Gottdiener, Ervin Tausky, Suan Investments, Plaintiffs: Frederick Martin Oberlander, The Law Offices of Frederick M. Oberlander, PC, Montauk, NY.
For Felix Sater, Salvatore Lauria, Defendants: Nader Mobargha, Beys, Stein & Mobargha LLP (LEXINGTON), New York, NY.
OPINION AND ORDER
LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE.
On March 18, 2013, Plaintiffs commenced this civil suit against Defendants for violations of the Racketeer Influenced and Corrupt Organizations Act (" RICO" ). On March 19, 2014, the Court issued an opinion and order granting Defendants' motion to dismiss (the " March 19 Opinion" ). Estate of Gottdiener v. Sater, No. 13 Civ. 1824, 35 F.Supp.3d 386, 2014 WL 1100133 (S.D.N.Y. Mar. 19, 2014). Judgment was entered on March 21, 2014. On April 18, 2014, Plaintiffs moved for reconsideration pursuant to Rule 59 of the Federal Rules of Civil Procedure. For the reasons stated below, Plaintiffs' motion is granted in part and denied in part.
" The standard for granting . . . a motion [for reconsideration] is strict, and 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); see also ResQnet.com, Inc. v. Lansa, Inc., No. 01 Civ. 3578, 2008 WL 4376367, at *2 (S.D.N.Y. Sept. 25, 2008) (holding that the same standards govern motions for amendment of findings under Rule 52(b), motions to amend a judgment under Rule 59(e) and motions for reconsideration under Local Rule 6.3).
" A party seeking reconsideration 'is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings.'" Wechsler v. Hunt Health Sys., Ltd., No. 94 Civ. 8294, 2004 WL 2210261, at *2 (S.D.N.Y. Sept. 30, 2004) (quoting Polsby v. St. Martin's Press, Inc., No. 97 Civ. 690, 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)). " The motion to reconsider cannot properly advance 'new facts, issues or arguments not previously presented to the court.'" Id. (quoting Davidson v. Scully, 172 F.Supp.2d 458, 461 (S.D.N.Y. 2001)).
Plaintiffs challenge the Court's determinations that (i) Defendants' convictions were not " in connection with" the alleged predicate acts of aiding and abetting securities fraud, Gottdiener, 2014 WL 1100133, at *7, 13; (ii) aiding and abetting securities fraud cannot serve as RICO predicate acts, [WL] at *8-10; and (iii) Plaintiffs' claims are untimely as against Defendant Lauria, [WL] at *13-14. Plaintiffs also seek leave to file an amended complaint. These arguments will be addressed in turn. Familiarity with the facts and law of the case is assumed.
I. The Conviction Exception
The Court held that Defendants' criminal convictions were not " in connection with" the fraud Plaintiffs alleged for purposes of § 1964(c), and therefore the fraud could not be the predicate for a RICO private right of action. Id. at *7. Plaintiffs characterize the Court's holding as an impermissible restriction on the standing of RICO plaintiffs. That characterization, however, is incorrect. As Plaintiffs stated in their sur-reply in opposition to Defendants' ...