Nastasi & Assocs. v. Bloomberg, L.P.

NASTASI & ASSOCIATES, INC., Plaintiff, v. BLOOMBERG, L.P., et al., Defendants.

18-CV-12361 (JMF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 20, 2020

MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiff Nastasi & Associates, Inc. ("Nastasi") moves for reconsideration of the Court's March 11, 2020 Memorandum Opinion and Order, ECF No. 172 ("Mem. Op."), which concluded that Nastasi lacks standing to bring claims that it assigned to the Franklin D. Nastasi Trust ("Trust") before commencing this lawsuit. See ECF No. 174. Defendants squarely raised the standing issue in their joint motion to dismiss, which cited Nastasi's own allegations in a related state-court case that "[e]ffective January 1, 2017, the [Franklin D. Nastasi] Trust became the owner of all of Nastasi & Associates's assets, including the rights to all of Nastasi & Associates's accounts receivables." ECF No. 148 ("MTD Mem."), at 8.¹ In its Opposition, Nastasi did not contest the veracity of its state-court allegations or submit any evidence to dispute the Trust's ownership, arguing only that Nastasi is still "the proper party in interest" because it "participated in all of the acts which gave rise to the allegations in the [complaint]."ECF No. 167 ("MTD Opp'n"), at 12-13. Now, however, through a motion for reconsideration, Nastasi seeks to introduce evidence to argue that it did not, in fact, assign its claims to the Trust. See ECF No. 175 ("Pl. Mem."), at 11-18; ECF Nos. 176, 181.

Nastasi's efforts are too little too late, and its motion is thus denied. It is well established that a motion for reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple." Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (internal quotation marks and ellipsis omitted). Thus, under Rules 59(e) and 60(b)(2) of the Federal Rules of Civil Procedure, a party may not seek relief based on evidence that was not previously submitted to the Court if the party reasonably could have presented the evidence, but chose not to. See Karimian v. Time Equities, Inc., No. 10-CV-3773 (AKH), 2013 WL 2254557, at *2 (S.D.N.Y. May 22, 2013) ("A motion for reconsideration is not an opportunity to advance new facts, issues or arguments not previously presented to the Court." (internal quotation marks omitted)); Pla v. Renaissance Equity Holdings LLC, No. 12-CV-5268 (JMF), 2013 WL 3185560, at *2 (S.D.N.Y. June 24, 2013) (denying a motion for reconsideration of dismissal under Rule 12(b)(1) because "Plaintiffs were given ample opportunity to submit evidence to the Court to substantiate their claims . . . but they failed to do so"); United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) ("In order to succeed on a motion pursuant to Rule 60(b)(2), the movant must present evidence that is truly newly discovered or could not have been found by due diligence." (internal quotation marks and ellipsis omitted)). The documents Nastasi now submits were — with one exception — all either in its possession when it filed its Opposition (indeed, as the Court noted, the various security and loan agreements were in its exclusivepossession, see Mem. Op. 4-5 n.2) or, in the case of the declaration by Anthony Nastasi, readily capable of being produced and submitted. The only exception is an email exchange between counsel a few months after Nastasi filed its Opposition, see ECF No. 176-5, but even that occurred months before the Court issued its Memorandum Opinion and Order. Rather than submitting any of these documents, Nastasi concluded that "its explanation as to why it did have standing . . . was sufficient." See Pl. Mem. 14. Having put all of its eggs in that basket, Nastasi is not now entitled to produce a different basket.

Nastasi argues that its failure to timely submit the evidence is the type of "mistake" that may be excused under Rule 60(b)(1). See Pl. Mem. 12. But the Court's discretion under Rule 60(b)(1) is "cabined" by the so-called Pioneer factors: (1) the danger of prejudice to the non-moving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. See William v. City of New York, 727 F. App'x 30, 31 (2d Cir. 2018) (summary order) (discussing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). Under the Second Circuit's "hard line" approach to applying Pioneer, "which emphasizes the reason for the delay," Nastasi has not demonstrated excusable neglect. See In re Enron Corp., 419 F.3d 115, 122-23 (2d Cir. 2005). Defendants explicitly raised the standing issue over two months before Nastasi filed its Opposition and almost nine months before the Court issued its Memorandum Opinion and Order. See MTD Mem. (filed on June 17, 2019); MTD Opp'n (filed on August 26, 2019); Mem. Op. (filed on March 11, 2020). The issue was flagged even earlier in two individual Defendants' memoranda of law in support of Defendants' original motion to dismiss. See ECF No. 129, ¶ 6 (memorandum filed byEurotech Construction Corp. on April 17, 2019); ECF No. 122, at 5 n.3 (memorandum filed by Turner Construction Co. on April 17, 2019). At no point throughout this extended period did Nastasi seek to introduce evidence disputing the Trust's ownership of its claims; to the contrary, Nastasi appeared to admit that its state-court allegations were accurate. See MTD Opp'n 13 (conceding that the Trust "may have the rights to Nastasi & Associates' receivables," referring to the language of the state-court allegations). Nastasi provides no legitimate reason for its substantial delay. Allowing Nastasi to change tack now after such a substantial delay would prejudice Defendants, and the good faith factor, even assuming it weighed in Nastasi's favor, would not be sufficient to overcome the other factors. See Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 415-16 (2d Cir. 2004) (noting that "it is the third factor — the reason for the delay — that predominates, and the other three are significant only in close cases").

In the alternative, Nastasi seeks relief under Rule 60(b)(6)'s catchall provision for "any other reason that justifies relief." See ECF No. 180 ("Reply"), at 9. But "Rule 60(b)(6) applies only when the asserted grounds for relief are not recognized in clauses (1)-(5) of the Rule and there are extraordinary circumstances justifying relief." Tapper v. Hearn, 833 F.3d 166, 172 (2d Cir. 2016) (internal quotation marks omitted). Here, as discussed, Nastasi's asserted grounds for relief are recognized in Rule 60(b)'s first and second clauses. And, in any event, Nastasi fails to show "extraordinary circumstances justifying relief" or "good cause for the failure to act sooner." See Freedom, N.Y., Inc. v. United States, 438 F. Supp. 2d 457, 462 (S.D.N.Y. 2006) (internal quotation marks omitted).

Furthermore, even if the Court were to consider Nastasi's belatedly proffered evidence, it would not suffice to establish standing. In fact, the Security Agreement confirms the Court'sconclusion that the phrase "all of [Nastasi's] assets" encompassed "claims, demands and any other property, rights and interest of the undersigned." ECF No. 176-1, at 12 (Ex. A, Sch. A) ("Security Agreement"); see Mem. Op. 4. In addition, none of Nastasi's new evidence, which centers on an assignment to the Trust in 2013, see ECF No. 176-4, at 6 (Ex. G), sheds any light on what happened on January 1, 2017 — when, according to Nastasi itself (both in the state-court case and, by conceding the state-court allegations, in this case), the Trust "became the owner of all of [Nastasi's] assets."² Indeed, the email exchange Nastasi submits suggests that there are other "legal documents purporting to show the transfer of [Nastasi]'s assets to the Trust." ECF No. 176-5, at 5. Nastasi does not submit these documents or explain how they affect the argument it now offers. Nastasi thus fails again to meet its burden.

Nastasi's remaining arguments are easily rejected. For example, Nastasi argues that it was not given the opportunity to contest the accuracy of its own state-court allegations and the appropriateness of the Court's consideration of them. See Pl. Mem. 18-20; Reply 3-4 (citing Pa. Pub. Sch. Emps.' Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111 (2d Cir. 2014)). But that is false. Defendants' motion to dismiss explicitly cited Nastasi's state-court allegations to challenge whether Nastasi in fact had standing. See MTD Mem. 7-8 & n.5. This was not a situation in which "[t]here was no indication that the separate issue of . . . standing . . . might arise," or in which Nastasi was "arbitrarily prevent[ed]" from submitting evidence by "limits on pages." Pa. Pub. Sch. Emps.' Ret. Sys., 772 F.3d at 122; see also ECF No. 168 (evidence submitted in support of Nastasi's Opposition). Thus, when Nastasi declined to dispute the Trust's ownership, the Court properly proceeded to evaluate whether Nastasi had met its burden to prove standing. See Katz v. Donna Karan Co., 872 F.3d 114, 121 (2d Cir. 2017) (placing parties on "renewed notice of both the right to introduce such evidence [of standing] and the plaintiff's burden of proof to do so even at the motion-to-dismiss stage"); Tasini v. New York Times Co., 184 F. Supp. 2d 350, 354 n.2 (S.D.N.Y. 2002) ("[W]here a party has had an opportunity to submit affidavits or other proof to oppose the factual challenge raised by an adversary on a motion made pursuant to Rule 12(b)(1) and has failed to submit such evidence or otherwise waived the opportunity to do so, then the Court may properly address the factual contentions underlying the Rule 12(b)(1) motion." (internal quotation marks omitted)).

Nastasi also...