United States District Court, S.D. New York
UNITED STATES OF AMERICA, ex rel. ILYA ERIC KOLCHINSKY, Plaintiff,
MOODY'S CORPORATION, et al., Defendants.
OPINION & ORDER
WILLIAM H. PAULEY III, District Judge.
Ilya Kolchinsky moves pursuant to Federal Rules of Civil
Procedure Rule 59(e) and Local Rule 6.3 for reconsideration
of this Court's Opinion and Order, dated March 2, 2017,
granting Moody's motion to dismiss this whistleblower
action. Kolchinsky's motion is granted in part and denied
factual background of this case is set forth in this
Court's prior Opinion and Order. United States ex
rel. Kolchinsky v. Moody's Corp., No. 12 CV 1399,
2017 WL 825478 (S.D.N.Y. March 2, 2017)
(“Moody's I”). In short, Kolchinsky
brought this action on behalf of the United States of America
against Moody's Corporation and Moody's Investors
Service, Inc. under the False Claims Act (“FCA”),
31 U.S.C. § 3729 et seq, alleging that he was
constructively discharged after protesting Moody's
practice of issuing false credit ratings. This Court granted
the Defendant's motion to dismiss because the Second
Amended Complaint failed to state a valid FCA claim.
motion to alter or amend a judgment pursuant to Rule 59(e) is
evaluated under the same standard as a motion for
reconsideration under Local Rule 6.3. Williams v. N.Y.
Dep't. of Corr., 219 F.R.D. 78, 83 (S.D.N.Y. 2003).
Such motions “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). Reconsideration is warranted only
“if the moving party establishes: (1) a change in the
controlling law; (2) new evidence has become available; or
(3) reconsideration is necessary to correct a clear error or
prevent manifest injustice.” Analytical Surveys,
Inc. v. Tonga Partners, L.P., No. 06-CV-2692, 2009 WL
1514310, at *1-2 (S.D.N.Y. May 29, 2009), aff'd,
684 F.3d 36 (2d Cir. 2012). The motion “cannot assert
new arguments or claims which were not before this court on
the original motion.” Koehler v. Bank of Berm.,
Ltd., No. M18-302, 2005 WL 1119371, at *1 (S.D.N.Y. May,
10, 2005). The decision to grant or deny a motion for
reconsideration is within the sound discretion of the
district court. McCarthy v. Manson, 714 F.2d 234,
237 (2d Cir.1983).
Motion to Dismiss
seeks reconsideration of this Court's Opinion on the
grounds that the Second Amended Complaint adequately alleged
factual falsity, fraudulent inducement, and materiality.
Kolchinsky also argues that this Court erred in finding that
the Second Amended Complaint did not satisfy the pleading
requirements of FRCP 9(b).
arguments regarding factual falsity largely re-assert those
raised in his opposition to the motion to dismiss and
otherwise fail to point to any fact or relevant law that the
Court overlooked. As this Court held, the Second Amended
Complaint did not “plead that Moody's failed to
provide any credit ratings, or that the ratings it provided
were entirely worthless. Rather, Kolchinsky's claim [was]
one of legal falsity-that its ratings differed in
quality and accuracy from the ratings it promised to
Government agencies.” Moody's I, 2017 WL
825478, at *4. “[C]ourts should not grant a motion for
reconsideration when the moving party seeks solely to
relitigate an issue already decided.” Shamis v.
Ambassador Factors Corp., 187 F.R.D. 148, 151
argues that the Second Amended Complaint also stated a claim
under the theory of fraudulent inducement. This argument is
inadequately presented on the motion for reconsideration, as
Kolchinsky did not raise such a theory in the Second Amended
Complaint or in his briefing on the motion to dismiss.
See Koehler, 2005 WL 1119371, at *1 (a motion for
reconsideration “cannot assert new arguments or claims
which were not before [the] court on the original
motion”). The only prior mention of fraudulent
inducement was a string citation in Kolchinsky's
opposition to the motion to dismiss. (See MTD Opp.,
ECF No. 66, at 23-24.) These cites offered the proposition
that fraudulent inducement could be a valid basis for an FCA
claim, but Kolchinsky's papers were otherwise bereft of
any mention of the theory. At oral argument Kolchinsky's
counsel emphasized his theory of implied legal falsity, and
only alluded opaquely to fraudulent inducement. (See
Arg. Tr., ECF No. 69, at 6:17-7:1).
motion for reconsideration is not an invitation to parties 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.'” Patterson v. United
States, No. 04-CV-3170, 2006 WL 2067036, at *2 (S.D.N.Y.
July, 26, 2006) (quoting De Los Santos v. Fingerson,
No. 97-CV-3972, 1998 WL 788781, at *1 (S.D.N.Y. Nov. 12,
1998)). Accordingly, Kolchinsky's arguments regarding
fraudulent inducement do not provide a basis for
reconsideration. Because ...