United States District Court, S.D. New York
BRUCE SCHWARTZ, individually and on behalf of all others similarly situated, Plaintiff,
HSBC BANK USA, N.A., Defendant.
OPINION AND ORDER
KATHERINE POLK FAILLA United States District Judge.
Opinion and Order dated January 9, 2017, the Court granted
Defendant HSBC Bank USA N.A.'s motion to dismiss
Plaintiff Bruce Schwartz's Second Amended Complaint (the
“SAC”). See Schwartz v. HSBC Bank USA,
N.A., No. 14 Civ. 9525 (KPF), 2017 WL 95118, at *1
(S.D.N.Y. Jan. 9, 2017) (“Schwartz II”).
On January 23, 2017, Plaintiff moved, pursuant to Federal
Rules of Civil Procedure 59(e) and 15(a), and Local Civil
Rule 6.3, to reopen this case and vacate the judgment entered
on January 11, 2017, and also (i) for reconsideration of
Schwartz II; or, alternatively, (ii) for leave to
file a Third Amended Complaint (the “TAC”)
nunc pro tunc. For the reasons that follow,
Plaintiff's motion is denied in its entirety.
filed his original Complaint on December 1, 2014, and a First
Amended Complaint (the “FAC”) on March 27, 2015
(Dkt. #2, 12), alleging that Defendant violated the Truth in
Lending Act (“TILA” or the “Act”), 15
U.S.C. §§ 1601-1677f, and its implementing
regulations. In a February 9, 2016 Opinion and Order, the
Court held, inter alia, that Plaintiff had
sufficiently stated a claim for violation of TILA disclosure
requirements concerning penalty annual percentage rates (or
“APRs”). See Schwartz v. HSBC Bank USA,
N.A., 160 F.Supp.3d 666, 681-82 (S.D.N.Y. 2016)
a February 23, 2016 conference, the Court stayed this action
pending the Supreme Court's anticipated decision in
Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), which
was issued on May 16, 2016, and revised on May 24, 2016.
Thereafter, the Court held a conference on June 9, 2016, and
set a schedule for the filing of the SAC and of
Defendant's Spokeo-based motion to dismiss for
lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1) (Dkt. #45, 49); that motion was
fully briefed on August 31, 2016 (Dkt. #51-54). On November
23, 2016, the Second Circuit issued Strubel v. Comenity
Bank, 842 F.3d 181 (2d Cir. 2016), and this Court
granted the parties leave to submit supplemental letter
briefs concerning the effect, if any, of Strubel on
the pending motion; the parties filed those briefs on
December 16, 2016. (Dkt. #59-60).
Schwartz II, the Court dismissed this action for
lack of subject matter jurisdiction on the grounds that
“Plaintiff [had] fail[ed] plausibly to plead the
concrete and particularized injury necessary to establish
Article III standing.” Schwartz II, 2017 WL
95118, at *4; id. at *7 (“[W]ell-pled
allegations describing Plaintiff's injuries are found
nowhere in the SAC.”). Schwartz II began by
outlining the statutory and regulatory framework of TILA and
Regulation Z, including the disclosure provisions concerning
interest-rate hikes for late payments. Id. at *2-3.
It next surveyed standing doctrine in light of
Spokeo and Strubel, paying special
attention to the concreteness and particularization
requirements of the injury-in-fact element. Id. at
*3-5. Finally, the Opinion examined the SAC's sparse,
conclusory allegations of injury and concluded that Plaintiff
had “fail[ed] to carry his burden to clearly allege
facts demonstrating a concrete … [and] particularized
injury to support standing.” Id. at *6-8;
see Id. at *6 (“Mere incantations of
‘concrete harm' and ‘material risk of
concrete harm, ' or of the purpose statement of TILA, are
plainly insufficient to plead plausibly that Plaintiff
suffered a concrete injury.”); id. at *7
(“[The SAC's] allegations that Plaintiff personally
and individually suffered an injury as a result of those
violations are conclusory and inadequately pled.”)
Court also denied Plaintiff leave to file a TAC because
Plaintiff never sought leave to do so. See Schwartz
II, 2017 WL 95118, at *8 (“Plaintiff has not
sought leave to amend his complaint a third time and,
accordingly, the Court affords him no such
opportunity.” (citing Shields v. Citytrust Bancorp,
Inc., 25 F.3d 1124, 1132 (2d Cir. 1994) (“Although
federal courts are inclined to grant leave to amend following
a dismissal order, we do not deem it an abuse of the district
court's discretion to order a case closed when leave to
amend has not been sought.”))). The Court noted,
however, that dismissal of the SAC was without prejudice
“because the dismissal [wa]s one for lack of subject
matter jurisdiction, which deprives the Court of its ability
to issue a prejudicial dismissal.” Id. (citing
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54
(2d Cir. 2016); Hernandez v. Conriv Realty Assocs.,
182 F.3d 121, 123 (2d Cir. 1999)).
filed the instant motion, supporting brief, and declaration
on January 23, 2017 (Dkt. #65-67); Defendant filed its
opposition brief on February 6, 2017 (Dkt. #68); and
Plaintiff filed his reply brief on February 13, 2017 (Dkt.
Rule of Civil Procedure 59(e) allows a district court
“to alter or amend a judgment.” Fed.R.Civ.P.
59(e). “Generally, district courts will only amend or
alter a judgment pursuant to Rule 59 ‘to correct a
clear error of law or prevent manifest injustice.'”
In re Assicurazioni Generali, S.P.A., 592 F.3d 113,
120 (2d Cir. 2010) (quoting Munafo v. Metro. Transp.
Auth., 381 F.3d 99, 105 (2d Cir. 2004)). The rule
“covers a broad range of motions, ” and
“the only real limitation on the type of motion
permitted is that it must request a substantive alteration of
the judgment, not merely the correction of a clerical error,
or relief of a type wholly collateral to the
judgment.'” ING Glob. v. United Parcel Serv.
Oasis Supply Corp., 757 F.3d 92, 96 (2d Cir. 2014)
(internal quotation marks omitted) (quoting Schwartz v.
Liberty Mut. Ins. Co., 539 F.3d 135, 153 (2d Cir.
motion to alter or amend the judgment under Rule 59(e) is
assessed under the same standard as a motion for
reconsideration under Local Civil Rule 6.3. See Oocl
(USA) Inc. v. Transco Shipping Corp., No. 13 Civ. 5418
(RJS), 2016 WL 4481153, at *1 (S.D.N.Y. Aug. 23, 2016);
In re Evergreen Mut. Funds Fee Litig., 240 F.R.D.
115, 117 (S.D.N.Y. 2007) (collecting cases). Both rules
“are meant to ‘ensure the finality of decisions
and to prevent the practice of a losing party examining a
decision and then plugging the gaps of a lost motion with
additional matters.'” Cancel v. Kelly, No.
13 Civ. 6007 (JMF), 2016 WL 1559166, at *1 (S.D.N.Y. Apr. 15,
2016) (quoting Medisim Ltd. v. BestMed LLC, No. 10
Civ. 2463 (SAS), 2012 WL 1450420, at *1 (S.D.N.Y. Apr. 23,
2012)); see also Artists Rights Enf't Corp. v. Estate
of King, No. 16 Civ. 1121 (JPO), 2017 WL 2062988, at *1
(S.D.N.Y. May 15, 2017) (recognizing reconsideration as
“an extraordinary remedy to be employed sparingly in
the interests of finality and conservation of scarce judicial
resources[.]” (citations omitted)).
motion for reconsideration is governed by a
“strict” standard and is generally denied
“unless the moving party can point to controlling
decisions or data that the court overlooked.”
Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (internal citation omitted).
Thus, reconsideration is appropriate “only when the
[movant] identifies [i] an intervening change of controlling
law, [ii] the availability of new evidence, or [iii] the need
to correct a clear error or prevent manifest
injustice.” Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104
(2d Cir. 2013) (citation omitted); see also Bldg. Serv.
32BJ Health Fund v. GCA Servs. Grp., Inc., No. 15 Civ.
6114 (PAE), 2017 WL 1283843, at *1 (S.D.N.Y. Apr. 5, 2017)
(“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.'” (quoting
De Los Santos v. Fingerson, No. 97 Civ. 3972 (MBM),
1998 WL 788781, at *1 (S.D.N.Y. Nov. 12, 1998)).