NELSON S. ROMÁN, District Judge.
Elaine Aghaeepour ("Aghaeepour"); Ashley Glasgow ("Glasgow"); Julie Higgins ("Higgins"); Shane Moore ("Moore"); Michele Norris ("Norris"); Jesus Rivera ("Rivera"); Schilco, Inc. ("Schilco"); and Ray Schilber ("Schilber") (collectively, "Plaintiffs") filed the instant Complaint against Jay Cohen ("Cohen"); Sara Krieger ("Krieger"); Jennifer Centeno ("Centeno"); Louis Cucinotta ("Cucinotta") (collectively, "Individual Defendants"); Joseph I. Sussman ("Sussman"); Joseph I. Sussman, P.C. ("Sussman, P.C.") (collectively, "Sussman Defendants"); Lease Finance Group, LLC ("LFG"); MBF Leasing, LLC ("MBF"); and Nmthern Leasing Systems, Inc. ("NLS") (collectively, "Corporate Defendants") (with Individual Defendants and Sussman Defendants, collectively, "Defendants"), alleging claims under the federal Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962, 1964; the federal Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681 b(f), 1681s-2(b)(A); New York's Anti-Deceptive Trade Practices Act ("NYFCRA"), N.Y. Gen. Bus. Law§§ 349, 380; and common law fraud (See First Am. Compl. ("Compl."), ECF No. 6.) On December 1, 2015, this Court ruled on Defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6). (See Opinion & Order, ECF No. 19.) (the "December Order"). Presently before the Court is Defendants' Motion for Reconsideration of the December Order.
For the reasons set forth below, the Defendants' motion (ECF No. 20) is DENIED.
Motions for reconsideration are governed by Local Civil Rule 6.3 and Federal Rule of Civil Procedure 60(b). The standard for granting a motion for reconsideration pursuant to Local Rule 6.3 is strict. Targum v. Citrin Cooperman & Conipany, LLP, 2013 WL 6188339, at *1 (S.D.N.Y. Nov. 25, 2013). Motions for reconsideration are "addressed to the sound discretion of the district court[.]" Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990). A motion to reconsider "is not a vehicle for . . . presenting the case under new theories . . . 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) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998); see also Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (in moving for reconsideration, "`a party may not advance new facts, issues, or arguments not previously presented to the Court.'") (quoting Polsby v. St. Martin's Press, No. 97 Civ. 690(MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (Mukasey, J.)). They "`will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.'" Analytical Surveys, 684 F.3d at 52 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Reconsideration of a court's previous order is "an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Initial Pub. Offering Sec. Litig., 399 F.Supp.2d 298, 300 (S.D.N.Y. 2005) (internal citation and quotation omitted), aff'd sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05 Civ. 3430, 05 Civ. 4759, & 05 Civ. 4760, 2006 WL 1423785, at *1 (2d Cir. 2006).
Familiarity with the December Order is presumed. Defendants, on the instant motion, argue that the December Order (i) does not contain any discussion of or decision on Defendants' motion to dismiss Count XII of the FAC, fraud; (ii) does not address Defendants' argument regarding Plaintiffs' failure to properly plead "control of an enterprise" in order to maintain claims against the individual Defendants; (iii) should have dismissed with prejudice the inaccurate reporting claims of Plaintiffs Glasgow, Moore and Norris for the same reason that their claims for RICO violations were dismissed, res judicata; and (iv) in its concluding paragraph, subsection (3), does not accurately reflect the claims dismissed. (See Defendants' Memorandum of Law in Support of Motion to Seek Reconsideration of Decision and Order on Motion to Dismiss the First Amended Complaint ("Defs. Memo"), ECF No. 21, at 1.) Each argument will be addressed in turn.
Defendants argue that "dismissal [of the fraud claims] was [] warranted because the common law fraud claim does not specify the content of any fraudulent communications to any Plaintiff, who sent them, where and when they took place, that Plaintiff reasonably relied on them, or why they were fraudulent." (Defs. Memo, at 2.) Defendants' attempt to distinguish this argument from the pleading requirement under Fed. R. Civ. P. 9(b) is meritless. Plaintiffs addressed this argument in their memorandum (Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss the First Amended Complaint, ECF No. 17, at 2-8.), and the Court addressed this argument sufficiently in its opinion.
Defendants further argue that the claims for common law fraud of Plaintiffs Glasgow, Moore and Norris should have been dismissed because their claims were barred by res judicata. In their motion to dismiss, Defendants did not move to dismiss these fraud claims on the basis of res judicata. In light of this failure, the Court did not venture out to decide whether these additional claims were barred by res judicata. This argument is therefore presented for the first time on this motion for reconsideration and is improper.
Next, Defendants repeat their argument that the Plaintiffs' RICO claims should be dismissed "[b]ecause the [Complaint] does not adequately allege that each Defendant directed or controlled the affairs of the RICO enterprise." (Defs. Memo, at 5-6.) Not only was this argument improperly asserted in Defendants' original reply papers—rather than moving papers—but the Court specifically addressed the exact argument notwithstanding Defendants' error in raising it:
(December Opinion, at 12.) Again, Defendants have failed to present the Court with any new issue to consider, and this Court will not re-entertain an argument that it has already decided.
The inaccurate reporting claims of Plaintiffs Glasgow, Moore, and Norris were dismissed without prejudice, because the Complaint was missing any allegation that the Defendants received notice of these Plaintiffs' disputes as to the guaranty default entries—an allegation that is required to sustain a claim of inaccurate reporting under the FCRA and NYFCRA. (See December Opinion, at 21-22.) These claims were not dismissed "due to the application of the res judicata doctrine," as Defendants argue in their current motion. For the same reasons explained above—particularly, Defendants did not move to dismiss the inaccurate reporting claims on the basis of res judicata-the Court did not apply the doctrine to the inaccurate reporting claims, and the claims were dismissed without prejudice in order to allow these Plaintiffs to properly replead, if possible. The Court will not alter its judgment to cure Defendants' failure to properly move in their motion to dismiss.
The concluding paragraph in the December Opinion currently dismisses: "(2) all FCRA and NYFCRA claims of plaintiffs Moore and Rivera; (3) the FCRA and NYFCRA claims based on inaccurate reporting of plaintiffs Higgins and Norris." Defendants argue that subsection (3) should also dismiss the claims of Plaintiffs Moore, Rivera, Schilber and Schilco, Inc. However, it is abundantly clear that all FCRA and NYFCRA claims of Plaintiffs Moore and Rivera were dismissed in subsection (2). Therefore, only Plaintiffs Shilber and Schilco, Inc. should be added to this clause.
For the foregoing reasons, the Defendants' Motion for Reconsideration is DENIED. The Comt corrects subsection (3) in the Conclusion of the December Opinion to dismiss the FCRA and NYFCRA claims based on inaccurate reporting of plaintiffs Higgins, Norris, Shilber, and Schilco, Inc. The Clerk of Comt is respectfolly requested to terminate the pending Motion. (ECF No. 20.)
SO ORDERED.