Case 1:08-cv-05689-PKC Document 54 Filed 04/23/09 Page 1 of 6
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`...................................................................
`AMIDAX TRADING GROUP, on behalf of itself and
`all others similarly situated,
`
`X
`
`ELECTRONICALLY FILED
`
`DATE FILED: Y'a3 -*?
`
`Plaintiff,
`
`08 Civ. 5689 (PKC)
`
`MEMORANDUM
`AND ORDER
`
`-against-
`
`S.W.I.F.T. SCRL, S.W.I.F.T. PAN-AMERICAS, INC.,
`S.W.I.F.T., INC., JOHN SNOW, in his personal
`capacity, STUART LEVEY, in his personal and
`professional capacities, UNITED STATES
`DEPARTMENT OF THE TREASURY, GEORGE W.
`BUSH, in his personal capacity, BARACK H.
`OBAMA, in his professional capacity, CENTRAL
`INTELLIGENCE AGENCY, RICHARD CHENEY, in
`his personal capacity, JOSEPH R. BIDEN, JR., in his
`professional capacity, GEORGE TENET, in his
`personal capacity, MICHAEL HAYDEN, in his
`personal capacity, LEON E. PANElTA, in his
`professional capacity, HENRY M. PAULSON, JR., in
`his personal capacity, and TIMOTHY F. GEITHNER,
`in his professional capacity,
`
`Defendants.
`...................................................................
`
`X
`
`P. KEVIN CASTEL, District Judge:
`
`In a Memorandum and Order dated February 13,2009, the Court dismissed
`
`plaintiffs complaint, pursuant to Rule 12(b)(l), Fed. R. Civ. P., for lack of subject matter
`
`jurisdiction, holding that plaintiff had failed to establish its standing to bring the action. Amidax
`
`Tradine. Group v. S.W.I.F.T. SCRL, 08 Civ. 5689(PKC), 2009 WL 361949 (S.D.N.Y. Feb. 13,
`
`2009) ("Feb. 13 order").' Plaintiff now moves for reconsideration pursuant to Local Civ. R. 6.3;
`
`to alter or amend the judgment pursuant to Rule 59(e), Fed. R. Civ. P.; and for relief from
`
`judgment pursuant to Rule 60(b), Fed. R. Civ. P. SWIFT moves for sanctions against plaintiffs
`
`I Familiarity with the facts described in the Feb. 13 Order is presumed. All capitalized terms and abbreviations have
`the same meaning here as they had there.
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`...................................................................
`AMIDAX TRADING GROUP, on behalf of itself and
`all others similarly situated,
`
`X
`
`ELECTRONICALLY FILED
`
`DATE FILED: Y'a3 -*?
`
`Plaintiff,
`
`08 Civ. 5689 (PKC)
`
`MEMORANDUM
`AND ORDER
`
`-against-
`
`S.W.I.F.T. SCRL, S.W.I.F.T. PAN-AMERICAS, INC.,
`S.W.I.F.T., INC., JOHN SNOW, in his personal
`capacity, STUART LEVEY, in his personal and
`professional capacities, UNITED STATES
`DEPARTMENT OF THE TREASURY, GEORGE W.
`BUSH, in his personal capacity, BARACK H.
`OBAMA, in his professional capacity, CENTRAL
`INTELLIGENCE AGENCY, RICHARD CHENEY, in
`his personal capacity, JOSEPH R. BIDEN, JR., in his
`professional capacity, GEORGE TENET, in his
`personal capacity, MICHAEL HAYDEN, in his
`personal capacity, LEON E. PANElTA, in his
`professional capacity, HENRY M. PAULSON, JR., in
`his personal capacity, and TIMOTHY F. GEITHNER,
`in his professional capacity,
`
`Defendants.
`...................................................................
`
`X
`
`P. KEVIN CASTEL, District Judge:
`
`In a Memorandum and Order dated February 13,2009, the Court dismissed
`
`plaintiffs complaint, pursuant to Rule 12(b)(l), Fed. R. Civ. P., for lack of subject matter
`
`jurisdiction, holding that plaintiff had failed to establish its standing to bring the action. Amidax
`
`Tradine. Group v. S.W.I.F.T. SCRL, 08 Civ. 5689(PKC), 2009 WL 361949 (S.D.N.Y. Feb. 13,
`
`2009) ("Feb. 13 order").' Plaintiff now moves for reconsideration pursuant to Local Civ. R. 6.3;
`
`to alter or amend the judgment pursuant to Rule 59(e), Fed. R. Civ. P.; and for relief from
`
`judgment pursuant to Rule 60(b), Fed. R. Civ. P. SWIFT moves for sanctions against plaintiffs
`
`I Familiarity with the facts described in the Feb. 13 Order is presumed. All capitalized terms and abbreviations have
`the same meaning here as they had there.
`
`
`
`Case 1:08-cv-05689-PKC Document 54 Filed 04/23/09 Page 2 of 6
`
`counsel pursuant to 28 U.S.C. § 1927. For the reasons explained below, these motions are
`
`denied.
`
`I. Reconsideration
`
`A. Legal Standard
`
`DISCUSSION
`
`The standards for relief under Local Rule 6.3 and Rule 59(e) are "identical."
`
`Griffin Indus.. Inc. v. Petroiam. Ltd., 72 F.Supp.2d 365, 368 (S.D.N.Y. 1999). And where, as
`
`here, a Rule 60(b) motion is filed within ten days of the entry ofjudgment, it is treated as a
`
`motion to alter or amend the judgment pursuant to Rule 59(e). See United States v. Clark, 984
`F.2d 3 1, 32 (2d Cir. 1993); cf. Nemaizer v. Baker, 793 F.2d 58,61 (2d Cir. 1986) (Rule 60(b)
`
`"allows extraordinary judicial relief' and requires a "showing of exceptional circumstances").
`
`"Local Civil Rule 6.3 elaborates on Fed. R. Civ. P. 59(e) and provides a vehicle
`
`for a party to call the court's attention to facts or controlling decisions it believes the court
`
`overlooked in reaching its prior decision." Truong v. Charles Schwab & Co., 07 Civ.
`8085(SHS), 2009 WL 464452, at * 1 (S.D.N.Y. Feb. 24,2009) (quotation and footnote omitted).
`
`"Generally, motions for reconsideration are not granted 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." In re BDC 56 LLC, 330
`
`F.3d 11 1, 123 (2d Cir. 2003) (quotation omitted). While a court may grant a motion for
`
`reconsideration "to correct a clear error of law or prevent manifest injustice," Munafo v. Metro.
`
`Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004) (quotation omitted), "a motion to reconsider
`
`should not be granted where the moving party seeks solely to relitigate an issue already decided,"
`
`
`
`Case 1:08-cv-05689-PKC Document 54 Filed 04/23/09 Page 3 of 6
`
`Shrader v. CSX Transp. Inc., 70 F.3d 255,257 (2d Cir. 1995). The decision to grant or deny a
`
`motion for reconsideration is within the sound discretion of the district court.
`
`Devlin v.
`
`Transp. Commc'ns Int'l Union, 175 F.3d 121, 13 1-32 (2d Cir. 1999).
`
`B. Analysis
`
`Plaintiffs principal argument for reconsideration is that "the Court has apparently
`
`overlooked three crucial exhibits to Plaintiffs' complaint" because "a series of administrative and
`
`technological problems apparently left the Court without these exhibits." (PI. 6.3 Mem. at 2.)
`
`To the contrary, the Court thoroughly reviewed a complete copy of plaintiffs complaint,
`including the three exhibits -- E, F, and G -- that plaintiff believes were overlooked. (& Doc.
`
`#1 (Complaint with Exhibits A - G attached).) The Court did not refer to these exhibits in the
`
`Feb. 13 Order because they were immaterial to a determination of whether plaintiff had standing
`
`under Article 111 of the Constitution. These three exhibits consist of reports or opinions of
`
`commissions outside the United States. (f& Compl. ex. E (internet article from
`
`www.privacyinternational.org translating into English the legal analysis of the Data Protection
`
`Commission for the German Lander of ScNeswig-Holstein); id. ex. F (opinion of the Swiss
`
`Federal Data Protection and Information Commissioner); id. ex. G (opinion of the European
`
`Commission Article 29 Data Protection Working Party).) The conclusions reached by these
`
`commissions are based mainly on the same kind of media reports that the Court reviewed in the
`
`Feb. 13 Order. Most importantly, these exhibits do not provide a concrete basis for plaintiffs
`
`speculative allegation that SWIFT turned over to the U.S. government either its entire database
`
`or specifically plaintiffs records. (f& Compl. ex. E at 2 (referring to "[tlhe turn over of all
`
`records or parts of SWIFT customer data") (emphasis added); id. at 11 (referring to "a complete
`
`
`
`Case 1:08-cv-05689-PKC Document 54 Filed 04/23/09 Page 4 of 6
`
`or partial turnover . . . of all information available to SWIFT on transfers orders") (emphasis
`added); id. ex. G at 15 (referring to "massive data transfers . . . from SWIFT to the [U.S.
`
`Treasury Department]").) Thus, plaintiff is not entitled to reconsideration on the basis that the
`
`Court overlooked exhibits attached to the complaint.
`
`Plaintiff also contends that "the Commercial Invoice [attached to the certification
`
`of Marcello Schor] proves conclusively that [Amidax] has standing to sue." (Pl. Rep. Mem. at
`
`4.) It does not. At most, it provides evidence that plaintiff used the SWIFT network.
`
`Nonetheless, the Court assumed for the purposes of the motion to dismiss that plaintiff had
`
`adequately alleged that its financial information was contained in the SWIFT database. See Feb.
`
`13 Order at 10. Plaintiff cannot point to anything in Mr. Schor's certification that the Court
`
`overlooked, which would establish that plaintiffs financial information was among the data
`
`disclosed by SWIFT to the U.S. government. Accordingly, neither Mr. Schor's certification nor
`
`the exhibits attached to it provides a basis for reconsideration.
`
`Plaintiff next argues that reconsideration should be granted because the Court
`
`engaged in "a fact finding function not appropriate or permitted on a motion to dismiss." (Pl. 6.3
`
`Mem. at 4.) The Court did no such thing. As the Feb. 13 Order makes clear, the Court only
`
`reviewed the complaint as a whole to determine whether plaintiff had adequately alleged an
`
`injury-in-fact sufficient to establish its standing to sue. See Feb. 13 Order at 12-14. The Court
`did not find, as a factual matter, that SWIFT did or did not disclose its entire database -- or
`specifically plaintiffs records -- to the U.S. government. Rather, the Court held that the
`
`complaint's allegations of such disclosure were speculative and conjectural, and thus insufficient
`
`to establish standing. Id. at 14.
`
`
`
`Case 1:08-cv-05689-PKC Document 54 Filed 04/23/09 Page 5 of 6
`
`Finally, plaintiff argues that reconsideration should be granted because the Court
`
`erroneously declined to permit jurisdictional discovery. (PI. 6.3 Mem. at 5; PI. 59(e) and 60(b)
`
`Mem. at 2.) Plaintiff argues that defendants' contention that plaintiffs "information was not
`
`disclosed by SWIFT to the government" is a "defense" supported by facts that "lie within the
`
`exclusive control of the defendants." (PI. 6.3 Mem. at 5.) However, the contention that plaintiff
`
`lacks standing is not an affirmative defense. Rather, plaintiff bears the burden of establishing its
`
`own standing.
`
`Cent. States SE & SW Areas Health & Welfare Fund v. Merck-Medco
`
`Managed Care. L.L.C., 433 F.3d 181, 198 (2d Cir. 2005). Plaintiff has pointed to no controlling
`
`authority establishing that plaintiffs mere speculation that it might have suffered a constitutional
`
`injury entitles it to obtain sensitive discovery from SWIFT or the government.
`
`Plaintiff has failed to identify any facts or controlling decisions overlooked by the
`
`Court. Nor has plaintiff shown that reconsideration is necessary to correct a clear error of law or
`
`to prevent manifest injustice. Thus, plaintiff is not entitled to relief under Local Civil Rule 6.3,
`
`Rule 59(e), or Rule 60(b).
`
`11. Sanctions
`
`A sanction under 28 U.S.C. 5 1927 is appropriate against "[alny attorney or other
`
`person admitted to conduct cases in any court of the United States or any Territory thereof who
`
`so multiplies the proceedings in any case unreasonably and vexatiously." 28 U.S.C. 5 1927;
`
`also Wechsler v. Hunt Health Svs., Ltd., 216 F.Supp2d 347,356 (S.D.N.Y. 2002) ("A pleading,
`-
`
`motion, or paper violates Rule 11 if it is frivolous, legally unreasonable, or factually without
`foundation. . . .") (citing Simon DeBartolo Group, L.P. v. The Richard E. Jacobs Group. Inc.,
`
`186 F.3d 157,167 (2d Cir. 1999)). "Section 1927 authorizes the imposition of sanctions only
`
`
`
`Case 1:08-cv-05689-PKC Document 54 Filed 04/23/09 Page 6 of 6
`
`when there is a finding of conduct constituting or akin to bad faith. . . . [A]n award under
`
`[section] 1927 is proper when the attorney's actions are so completely without merit as to require
`
`the conclusion that they must have been undertaken for some improper purpose such as delay."
`
`State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 180 (2d Cir. 2004)
`
`(citations and quotations omitted).
`
`The filing of the complaint by plaintiffs counsel, and the arguments advanced by
`
`counsel in opposing defendants' motions to dismiss, were not objectively unreasonable. The
`
`Court is unable to conclude that counsel's actions must have been undertaken in bad faith for an
`
`improper purpose. Thus, no sanction is warranted.
`
`CONCLUSION
`
`For the foregoing reasons, plaintiffs motions for reconsideration, to alter or
`
`amend the judgment, and for relief from judgment are denied. SWIFT'S motion for sanctions is
`
`denied.
`
`SO ORDERED.
`
`, ,,
`V P. Kevin Caste1
`United States District Judge
`
`Dated: New York, New York
`April 22,2009
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
