Preview
(FILED: SUFFOLK COUNTY CLERK 1172372022 01:49 PM INDEX NO. 615288/2021
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/23/2022
Exhibit 13INDEX NO. 615288/2021
O PagecbyeebOnvscer: 11/23/2022
D: U 0
NYSCEF DOC. NO. 42
Avraham C. Moskowitz (AM 8913)
Christopher R. Neff (CN 1655)
MOSKOWITZ & BOOK, LLP
345 Seventh Avenue, 21st Floor
New York, New York 10001
(212) 221-7999
Attorneys for Defendant
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK oo,
THE TRUNDLE & CO PENSION PLAN, and
CARIN TRUNDLE, as Trustee, suing Derivatively, Civil Action No. 18 Civ. 7290
and on behalf of the TRUNDLE & CO PENSION
PLAN, and CARIN TRUNDLE Individually,
Plaintiffs,
- against -
BARRY EMANUEL,
Defendant.
DEFENDANT’S MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFFS’ MOTION FOR RECONSIDERATIONINDEX NO. 615288/2021
NYSCEF DOC. NO. 42 20 Parc eres nvscer: 11/23/2022
Defendant Barry Emanuel respectfully submits this memorandum of law in
opposition to Plaintiffs’ motion for reconsideration of the denial of their motion to amend, or in the
alternative for leave to file a fourth version of their complaint.
Plaintiffs’ motion for reconsideration is aimed solely at the Court’s determination
that their proposed second cause of action, for fraud, was insufficiently pleaded under Fed R. Civ.
P. 9(b). The do not challenge the Court’s dismissal of their first cause of action, for economic
duress.
Plaintiffs’ motion for reconsideration should be denied, both because it is
procedurally improper and because it fails on the merits. Plaintiffs’ alternative request for leave to
file yet another version of their complaint should also be denied, because they have already had
three opportunities to amend, and because any claim Plaintiffs could allege if permitted yet another
attempt would be subject to dismissal under a binding release executed by the parties and by the
applicable statutes of limitation.
SUMMARY OF FACTS?
Plaintiff Carin Trundle (““Ms. Trundle”) and defendant Barry Emanuel (“Mr.
Emanuel”) were business partners for over 30 years. (Am. Compl. § 6.) During that time, and in
the course of the parties’ relationship, Ms. Trundle was an officer of Trundle & Company, Inc.,
which established a pension plan known as the Trundle & Co Pension Plan (the “Pension Plan”).
(Am. Compl. {f{ 7-9.) Ms. Trundle was the Administrator of the Pension Plan, and Ms. Trundle
+ Plaintiffs amended their complaint at least once in the New York Supreme Court before serving Defendant and
before this action was removed to this Court, and their earlier-dismissed pleading was captioned “Amended Verified
Complaint.” (see ECF No. 1 at Ex. | herein.) They subsequently sought leave to amend a second time in this Court,
in response to Defendant’s motion to dismiss, but failed to submit a proposed pleading. Thereafter, they filed a
Motion to Amend, attaching a second amended complaint, captioned as the “First Amended Verified Complaint.”
The Court denied the motion to amend with prejudice on July 23, 2020 (ECF No. 25).
? The facts herein are drawn from the proposed First Amended Verified Complaint (“Am. CompI.”) and are assumed
true solely for purposes of this motion.INDEX NO. 615288/2021
NYSCEF DOC. NO. 42°°
and Mr. Emanuel were designated as Trustees of the Pension Plan. (Am. Compl. {§ 8.) The
Pension Plan is a plaintiff in this matter but was dropped from the caption of the proposed
Amended Complaint.
In or about 2016, Ms. Trundle decided, as Administrator of the Pension Plan, that it
was necessary to close the Pension Plan. (Am. Compl. J 10.) To do so, she needed Mr. Emanuel
to sign certain documents as a Trustee of the Pension Plan. (Am. Compl. § 11.) Indeed, if Mr.
Emanuel refused to sign those documents as Trustee, the assets of the Pension Plan could not be
distributed and the Pension Plan could not be closed. (Am. Compl. §[ 12.) Mr. Emanuel refused to
sign as Trustee unless he was given a $100,000 distribution from the Pension Plan before he would
sign the documents. (Am. Compl. {/{ 14-17.) Faced with the prospect that the Internal Revenue
Service would impose additional penalties if the Pension Plan was not closed, Ms. Trundle caused
the Pension Plan to issue Mr. Emanuel a $100,000 payment. (Am. Compl. § 18.) As a result, Ms.
Trundle was personally damaged in an amount “known to be not less than One Hundred Thousand
($100,000.00) Dollars,” presumably because the Pension Plan would otherwise have paid that
amount to her as a personal distribution. (Am. Compl. J 19.)
Also in 2016, Ms. Trundle learned that Mr. Emanuel had caused the Pension Plan to
send $150,000.00 to a law firm’s IOLA account on or about February 28, 2003, and that those
funds were subsequently transferred to the East Hampton Tennis Club, LLC (“EHIDT”), an entity
in which Mr. Emanuel (or his family) is believed by Plaintiffs to have an ownership interest. (Am.
Compl. {J 22-25.) In 2016, “it came to Trundle’s attention” that Mr. Emanuel had not taken the
amount of this transaction as a personal distribution from the Pension Plan, but that the transaction
was instead recorded in the Pension Plan’s books as an investment, gift, or loan. (Am. Compl. §
26.)INDEX NO. 615288/2021
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Ms. Trundle relied upon Mr. Emanuel’s representations concerning the use of
Pension Plan funds, and she was personally damaged as a result of his “refusal to properly
designate distributions or loans made” by the Pension Plan, because the Pension Plan would
otherwise have paid that money to her. (Am. Compl. f§ 31, 36.)
LEGAL STANDARDS
Local Civil Rule 6.3 permits a motion for reconsideration or re-argument to be
brought within 14 days after the Court’s determination of the original motion, or within 14 days
after entry of judgment, “[uJnless otherwise provided by the Court or by statute or rule (such as
Fed. R. Civ. P. ... 59).” Local Civ. R. 6.3.
Federal Rule of Civil Procedure 59(e) provides that a “motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
A court may grant a Rule 59(e) motion “only when the movant identifies an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” Metzler Inv. Gmbh, 970 F.3d 133, 142 (2d Cir. 2020) (internal alterations,
quotation marks, and citation omitted).
A party seeking relief from judgment under Rule 60(b) bears an extremely high
burden, and “must demonstrate exceptional circumstances justifying the extraordinary relief
requested.” Employers Mutual Casualty Co. v. Key Pharmaceuticals, 75 F.3d 815, 824-25 (2d Cir.
1996). “In pertinent part, Federal Rule of Civil Procedure 60(b) provides for reconsideration of an
order if there has been ‘mistake, inadvertence, surprise, or excusable neglect,’ see Fed. R. Civ.
P. 60(b)(1); ‘newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b),’ id. 60(b)(2); and ‘any other reason
that justifies relief,” id. 60(b)(6).’” Gibson v. SCE Grp., Inc., No. 15 CIV. 8168 (ER), 2019 WL
5188932, at *2 (S.D.N.Y. Oct. 15, 2019). The Rule 60(b)(6) catch-all provision can be invoked
4INDEX NO. 615288/2021
NYSCEF DOC. NO. 42°°
only when “there are extraordinary circumstances justifying relief, when the judgment may work an
extreme and undue hardship, and when the asserted grounds for relief are not recognized in clauses
(1)-(5) of the Rule.” Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) (internal citations omitted).
ARGUMENT
I. RECONSIDERATION SHOULD BE DENIED AS UNTIMELY
Plaintiffs do not identify with specificity the rule under which they seek
reconsideration, and the Federal Rules of Civil Procedure do not provide for a motion for
reconsideration. Plaintiffs’ motion is untimely if brought pursuant to Local Civil Rule 6.3—the
sole procedural rule which provides for a motion for reconsideration—because that rule provides
for a motion to be brought within 14 days after the Court’s determination of the original motion, or
within 14 days after entry of judgment, “[u]nless otherwise provided by the Court or by statute or
tule (such as Fed. R. Civ. P. ... 59).” Local Civ. R. 6.3. Here, Plaintiffs’ motion was brought 30
days after entry of the Court’s order denying their motion to amend—well beyond Local Rule 6.3’s
14-day deadline for such a motion. Reconsideration should therefore be denied.
Plaintiffs’ motion should also be denied as untimely if construed as a motion to alter
or amend the judgment in order to remove the Court’s determination that denial of the motion to
amend was with prejudice. Fed. R. Civ. P. 59(e) permits such a motion to be brought within 28
days after entry of judgment, and Plaintiffs filed their motion 30 days thereafter. Plaintiffs’ motion
should therefore be denied as untimely if construed as a motion under Fed. R. Civ. P. 59(e).
IL. RECONSIDERATION SHOULD BE DENIED AS FUTILE BECAUSE THE
COURT CORRECTLY FOUND THAT PLAINTIFFS’ FRAUD CAUSE OF
ACTION WOULD BE PREEMPTED BY ERISA
Plaintiffs’ motion for reconsideration argues that the second cause of action in their
proposed First Amended Complaint, which is for fraud, was adequately pleaded under Rule 9(b). It
5NYSCEF DOC. NO. 42°°
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fails entirely to address the Court’s determination that the proposed fraud claim is expressly
preempted by ERISA, which was plainly correct. Thus, even if Plaintiffs were granted the primary
relief they seek in their motion for reconsideration—i.e., a determination that the fraud claim in her
proposed amended complaint was adequately alleged—they would nevertheless not be entitled to
relief from the judgment denying leave to file the proposed amended complaint. The motion for
reconsideration should therefore be denied as futile.
Ill. RECONSIDERATION SHOULD BE DENIED ON THE MERITS
Plaintiffs’ untimely, futile motion for reconsideration should be denied if the Court
reaches its merits, because Plaintiffs improperly seek to have the Court reconsider its opinion,
raising arguments that could have (and should have) been raised in reply before the Court
determined the motion to amend.
“Though Rule 60(b)(1) may provide relief from judicial mistake, it should not
provide a movant an additional opportunity to make arguments or attempt to win a point already
carefully analyzed and justifiably disposed.” Serrano v. Smith, No. 05 Civ. 1849 (KTD), 2009 WL
1390868, at *2 (S.D.N.Y. May 13, 2009). Thus, a Rule 60(b) motion that merely seeks to have the
Court revisit its Opinion is improper and should be denied. See Hernandez v. United States, No. 99
CIV. 4303 (SAS), 2000 WL 744148, at *1 (S.D.N.Y. June 8, 2000) (declining to entertain Rule
60(b) “argument [that] constitutes nothing more than a futile effort to have this Court revisit its
Opinion’); see also, Competex, S.A. v. LaBow, 783 F.2d 333, 335 (2d Cir.1986) (“Rule 60(b) is not
a substitute for appeal.”). “Under the strict standard applied by courts in this Circuit,
reconsideration 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.” Gibson, No. 15 CIV. 8168 (ER), 2019 WL 5188932, at
*2 (citation and quotation marks omitted).INDEX NO. 615288/2021
NYSCEF DOC. NO. 42°°
Here, Plaintiffs cannot point to decisions or data that the Court overlooked in
reaching its carefully-analyzed Decision and Order. Instead, they simply argue that the allegations
the Court already considered and rejected as inadequate are in fact sufficient under Rule 9(b) and
that the Court erred in concluding otherwise. In other words, they attempt to reargue the
underlying motion, by raising points that they could have (and should have) raised in their reply
papers—except that they chose not to file a reply after Defendant opposed her motion to amend.
Reconsideration should therefore be denied. See id. (“Where the movant fails to show that any
controlling authority or facts have actually been overlooked, and merely offers substantially the
same arguments [s]he offered on the original motion or attempts to advance new facts, the motion
for reconsideration must be denied.”’) (citation omitted)
Finally, it is evident that the Court’s determination was correct, and that the
allegations in the Complaint are insufficient to meet the heightened pleading standard required by
Rule 9(b). That Rule requires that a fraud complaint “(1) specify the statements that the plaintiff
contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were
made, and (4) explain why the statements were fraudulent.” DiMuro v. Clinique Laboratories, LLC,
572 Fed. Appx. 27, 30 (2d Cir. 2014) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175
(2d Cir.1993)). In other words, Rule 9(b) “requires that a plaintiff set forth the who, what, when,
where and how of the alleged fraud.” See U.S. ex rel. Kester v. Novartis Pharm. Corp., 23
F.Supp.3d 242, 252 (S.D.N.Y. 2014).
Here, the proposed amended complaint alleges in broad terms that Mr. Emanuel
made efforts to conceal a $150,000 transfer of pension funds in February 2003, that the transaction
was “never disclosed” to Ms. Trundle until 2016, and that Mr. Emanuel “took steps to hide from
Trundle the foregoing transaction. (ECF No. 21-3. ff 22, 28, 30.) The proposed pleading does notNYSCEF DOC. NO. 42°°
INDEX NO. 615288/2021
identify any statements made by Mr. Emanuel concerning the transaction, let alone explain why
those statements or representations were fraudulent; instead, it merely alleges that he failed to
disclose the transaction to her. Nor do Plaintiffs explain what steps Mr. Emanuel allegedly took to
ensure that Ms. Trundle—a sophisticated businesswomen, who was herself a trustee and
administrator of the Pension Plan, with access to all of the Pension Plan’s books and records and a
fiduciary duty to oversee the Pension Plan—would not become aware of the challenged transaction.
The proposed pleading fails to allege what tactics, if any, Mr. Emanuel employed to avoid
detection. It merely alleges that Ms. Trundle learned, some 13 years after the challenged
transaction, that “Emanuel did not take [the $150,000] as a personal distribution to himself or
properly account for the same as previously understood by Trundle.” (Id. § 50.) These bare-bones
allegations, amounting to an assertion that Ms. Trundle originally misunderstood the transaction,
and did nothing to gain clarity over a 13-year period, fall far short of the particularity required by
Rule 9(b).
IV. PLAINTIFFS SHOULD BE DENIED LEAVE TO REPLEAD
“A party seeking to file an amended complaint post judgment must first have the
judgment vacated or set aside pursuant to Fed. R. Civ. P. 59(e) or 60(b).” Ruotolo v. City of New
York, 514 F.3d 184, 191 (2d Cir. 2008). “[I]t would be contradictory to entertain a motion to amend
the complaint” without “a valid basis to vacate the previously entered judgment.” Nat'l
Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 245 (2d Cir. 1991). Moreover, as the
Second Circuit has explained, a post-judgment motion to amend “must be evaluated with due
regard to both the value of finality and the policies embodied in Rule 15.” Williams v. Citigroup
Inc., 659 F.3d 208, 213 (2d Cir. 2011). The Court may “take into account the nature of the
proposed amendment in deciding whether to vacate the previously entered
judgment.” Id. (quoting Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008). Like any
8INDEX NO. 615288/2021
NYSCEF DOC. NO. 42°°
other motion to amend, a post-judgment motion for leave to amend should be denied when the
proposed amendments would be futile. Id.
Here, Plaintiffs have not demonstrated an entitlement to relief under Rules 59(e) or
60(b)—which alone is a sufficient basis to deny their post-judgment motion for leave to amend.
Furthermore, as Defendant argued in detail in his motion to dismiss Plaintiffs’ original complaint
(ECF 11), in opposition to Plaintiffs’ cross-motion for leave to amend (ECF 19), and again in
opposition to Plaintiffs’ second motion for leave to amend (ECF 24), any claims Plaintiffs might be
able to allege in an amended complaint would be barred both by the applicable statutes of limitation
and by a mutual release of all claims, known and unknown, that Mr. Emanuel and Ms. Trundle
executed many years ago. Accordingly, granting Plaintiffs leave to try for the fourth time to allege
claims against Defendant would be futile, because Plaintiffs cannot allege any cause of action
against Defendant that would survive a motion to dismiss. Plaintiffs’ request for leave to amend
yet again should therefore be denied, with prejudice.
The Court’s thoughtful, comprehensive and well-reasoned Decision and Order
should stand. Leave to replead should be denied.
CONCLUSION
For all of the foregoing reasons, and based upon all of the authorities cited herein,
Plaintiffs’ motion for reconsideration should be denied, as should leave to file a fourth version of
their complaint.= SU > INDEX NO. 615288/2021
NYSCEF DOC. NO. 4 16 Page do aio Wyscer: 11/23/2022
Dated: New York, New York
September 14, 2020
MOSKOWITZ & BOOK, LLP
ole FOO
Avraham C. Moskowitz (AM 8913)
Christopher R. Neff (CN 1655)
345 Seventh Avenue, 21st Floor
New York, New York 10001
(212) 221-7999
Attorneys for Defendant
10
Preview
(FILED: SUFFOLK COUNTY CLERK 1172372022 01:49 PM INDEX NO. 615288/2021 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/23/2022 Exhibit 13INDEX NO. 615288/2021 O PagecbyeebOnvscer: 11/23/2022 D: U 0 NYSCEF DOC. NO. 42 Avraham C. Moskowitz (AM 8913) Christopher R. Neff (CN 1655) MOSKOWITZ & BOOK, LLP 345 Seventh Avenue, 21st Floor New York, New York 10001 (212) 221-7999 Attorneys for Defendant UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK oo, THE TRUNDLE & CO PENSION PLAN, and CARIN TRUNDLE, as Trustee, suing Derivatively, Civil Action No. 18 Civ. 7290 and on behalf of the TRUNDLE & CO PENSION PLAN, and CARIN TRUNDLE Individually, Plaintiffs, - against - BARRY EMANUEL, Defendant. DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR RECONSIDERATIONINDEX NO. 615288/2021 NYSCEF DOC. NO. 42 20 Parc eres nvscer: 11/23/2022 Defendant Barry Emanuel respectfully submits this memorandum of law in opposition to Plaintiffs’ motion for reconsideration of the denial of their motion to amend, or in the alternative for leave to file a fourth version of their complaint. Plaintiffs’ motion for reconsideration is aimed solely at the Court’s determination that their proposed second cause of action, for fraud, was insufficiently pleaded under Fed R. Civ. P. 9(b). The do not challenge the Court’s dismissal of their first cause of action, for economic duress. Plaintiffs’ motion for reconsideration should be denied, both because it is procedurally improper and because it fails on the merits. Plaintiffs’ alternative request for leave to file yet another version of their complaint should also be denied, because they have already had three opportunities to amend, and because any claim Plaintiffs could allege if permitted yet another attempt would be subject to dismissal under a binding release executed by the parties and by the applicable statutes of limitation. SUMMARY OF FACTS? Plaintiff Carin Trundle (““Ms. Trundle”) and defendant Barry Emanuel (“Mr. Emanuel”) were business partners for over 30 years. (Am. Compl. § 6.) During that time, and in the course of the parties’ relationship, Ms. Trundle was an officer of Trundle & Company, Inc., which established a pension plan known as the Trundle & Co Pension Plan (the “Pension Plan”). (Am. Compl. {f{ 7-9.) Ms. Trundle was the Administrator of the Pension Plan, and Ms. Trundle + Plaintiffs amended their complaint at least once in the New York Supreme Court before serving Defendant and before this action was removed to this Court, and their earlier-dismissed pleading was captioned “Amended Verified Complaint.” (see ECF No. 1 at Ex. | herein.) They subsequently sought leave to amend a second time in this Court, in response to Defendant’s motion to dismiss, but failed to submit a proposed pleading. Thereafter, they filed a Motion to Amend, attaching a second amended complaint, captioned as the “First Amended Verified Complaint.” The Court denied the motion to amend with prejudice on July 23, 2020 (ECF No. 25). ? The facts herein are drawn from the proposed First Amended Verified Complaint (“Am. CompI.”) and are assumed true solely for purposes of this motion.INDEX NO. 615288/2021 NYSCEF DOC. NO. 42°° and Mr. Emanuel were designated as Trustees of the Pension Plan. (Am. Compl. {§ 8.) The Pension Plan is a plaintiff in this matter but was dropped from the caption of the proposed Amended Complaint. In or about 2016, Ms. Trundle decided, as Administrator of the Pension Plan, that it was necessary to close the Pension Plan. (Am. Compl. J 10.) To do so, she needed Mr. Emanuel to sign certain documents as a Trustee of the Pension Plan. (Am. Compl. § 11.) Indeed, if Mr. Emanuel refused to sign those documents as Trustee, the assets of the Pension Plan could not be distributed and the Pension Plan could not be closed. (Am. Compl. §[ 12.) Mr. Emanuel refused to sign as Trustee unless he was given a $100,000 distribution from the Pension Plan before he would sign the documents. (Am. Compl. {/{ 14-17.) Faced with the prospect that the Internal Revenue Service would impose additional penalties if the Pension Plan was not closed, Ms. Trundle caused the Pension Plan to issue Mr. Emanuel a $100,000 payment. (Am. Compl. § 18.) As a result, Ms. Trundle was personally damaged in an amount “known to be not less than One Hundred Thousand ($100,000.00) Dollars,” presumably because the Pension Plan would otherwise have paid that amount to her as a personal distribution. (Am. Compl. J 19.) Also in 2016, Ms. Trundle learned that Mr. Emanuel had caused the Pension Plan to send $150,000.00 to a law firm’s IOLA account on or about February 28, 2003, and that those funds were subsequently transferred to the East Hampton Tennis Club, LLC (“EHIDT”), an entity in which Mr. Emanuel (or his family) is believed by Plaintiffs to have an ownership interest. (Am. Compl. {J 22-25.) In 2016, “it came to Trundle’s attention” that Mr. Emanuel had not taken the amount of this transaction as a personal distribution from the Pension Plan, but that the transaction was instead recorded in the Pension Plan’s books as an investment, gift, or loan. (Am. Compl. § 26.)INDEX NO. 615288/2021 O PagecAyeebOnvscer: 11/23/2022 NYSCEF DOC. NO. 42°° Ms. Trundle relied upon Mr. Emanuel’s representations concerning the use of Pension Plan funds, and she was personally damaged as a result of his “refusal to properly designate distributions or loans made” by the Pension Plan, because the Pension Plan would otherwise have paid that money to her. (Am. Compl. f§ 31, 36.) LEGAL STANDARDS Local Civil Rule 6.3 permits a motion for reconsideration or re-argument to be brought within 14 days after the Court’s determination of the original motion, or within 14 days after entry of judgment, “[uJnless otherwise provided by the Court or by statute or rule (such as Fed. R. Civ. P. ... 59).” Local Civ. R. 6.3. Federal Rule of Civil Procedure 59(e) provides that a “motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). A court may grant a Rule 59(e) motion “only when the movant identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Metzler Inv. Gmbh, 970 F.3d 133, 142 (2d Cir. 2020) (internal alterations, quotation marks, and citation omitted). A party seeking relief from judgment under Rule 60(b) bears an extremely high burden, and “must demonstrate exceptional circumstances justifying the extraordinary relief requested.” Employers Mutual Casualty Co. v. Key Pharmaceuticals, 75 F.3d 815, 824-25 (2d Cir. 1996). “In pertinent part, Federal Rule of Civil Procedure 60(b) provides for reconsideration of an order if there has been ‘mistake, inadvertence, surprise, or excusable neglect,’ see Fed. R. Civ. P. 60(b)(1); ‘newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b),’ id. 60(b)(2); and ‘any other reason that justifies relief,” id. 60(b)(6).’” Gibson v. SCE Grp., Inc., No. 15 CIV. 8168 (ER), 2019 WL 5188932, at *2 (S.D.N.Y. Oct. 15, 2019). The Rule 60(b)(6) catch-all provision can be invoked 4INDEX NO. 615288/2021 NYSCEF DOC. NO. 42°° only when “there are extraordinary circumstances justifying relief, when the judgment may work an extreme and undue hardship, and when the asserted grounds for relief are not recognized in clauses (1)-(5) of the Rule.” Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) (internal citations omitted). ARGUMENT I. RECONSIDERATION SHOULD BE DENIED AS UNTIMELY Plaintiffs do not identify with specificity the rule under which they seek reconsideration, and the Federal Rules of Civil Procedure do not provide for a motion for reconsideration. Plaintiffs’ motion is untimely if brought pursuant to Local Civil Rule 6.3—the sole procedural rule which provides for a motion for reconsideration—because that rule provides for a motion to be brought within 14 days after the Court’s determination of the original motion, or within 14 days after entry of judgment, “[u]nless otherwise provided by the Court or by statute or tule (such as Fed. R. Civ. P. ... 59).” Local Civ. R. 6.3. Here, Plaintiffs’ motion was brought 30 days after entry of the Court’s order denying their motion to amend—well beyond Local Rule 6.3’s 14-day deadline for such a motion. Reconsideration should therefore be denied. Plaintiffs’ motion should also be denied as untimely if construed as a motion to alter or amend the judgment in order to remove the Court’s determination that denial of the motion to amend was with prejudice. Fed. R. Civ. P. 59(e) permits such a motion to be brought within 28 days after entry of judgment, and Plaintiffs filed their motion 30 days thereafter. Plaintiffs’ motion should therefore be denied as untimely if construed as a motion under Fed. R. Civ. P. 59(e). IL. RECONSIDERATION SHOULD BE DENIED AS FUTILE BECAUSE THE COURT CORRECTLY FOUND THAT PLAINTIFFS’ FRAUD CAUSE OF ACTION WOULD BE PREEMPTED BY ERISA Plaintiffs’ motion for reconsideration argues that the second cause of action in their proposed First Amended Complaint, which is for fraud, was adequately pleaded under Rule 9(b). It 5NYSCEF DOC. NO. 42°° INDEX NO. 615288/2021 fails entirely to address the Court’s determination that the proposed fraud claim is expressly preempted by ERISA, which was plainly correct. Thus, even if Plaintiffs were granted the primary relief they seek in their motion for reconsideration—i.e., a determination that the fraud claim in her proposed amended complaint was adequately alleged—they would nevertheless not be entitled to relief from the judgment denying leave to file the proposed amended complaint. The motion for reconsideration should therefore be denied as futile. Ill. RECONSIDERATION SHOULD BE DENIED ON THE MERITS Plaintiffs’ untimely, futile motion for reconsideration should be denied if the Court reaches its merits, because Plaintiffs improperly seek to have the Court reconsider its opinion, raising arguments that could have (and should have) been raised in reply before the Court determined the motion to amend. “Though Rule 60(b)(1) may provide relief from judicial mistake, it should not provide a movant an additional opportunity to make arguments or attempt to win a point already carefully analyzed and justifiably disposed.” Serrano v. Smith, No. 05 Civ. 1849 (KTD), 2009 WL 1390868, at *2 (S.D.N.Y. May 13, 2009). Thus, a Rule 60(b) motion that merely seeks to have the Court revisit its Opinion is improper and should be denied. See Hernandez v. United States, No. 99 CIV. 4303 (SAS), 2000 WL 744148, at *1 (S.D.N.Y. June 8, 2000) (declining to entertain Rule 60(b) “argument [that] constitutes nothing more than a futile effort to have this Court revisit its Opinion’); see also, Competex, S.A. v. LaBow, 783 F.2d 333, 335 (2d Cir.1986) (“Rule 60(b) is not a substitute for appeal.”). “Under the strict standard applied by courts in this Circuit, reconsideration 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.” Gibson, No. 15 CIV. 8168 (ER), 2019 WL 5188932, at *2 (citation and quotation marks omitted).INDEX NO. 615288/2021 NYSCEF DOC. NO. 42°° Here, Plaintiffs cannot point to decisions or data that the Court overlooked in reaching its carefully-analyzed Decision and Order. Instead, they simply argue that the allegations the Court already considered and rejected as inadequate are in fact sufficient under Rule 9(b) and that the Court erred in concluding otherwise. In other words, they attempt to reargue the underlying motion, by raising points that they could have (and should have) raised in their reply papers—except that they chose not to file a reply after Defendant opposed her motion to amend. Reconsideration should therefore be denied. See id. (“Where the movant fails to show that any controlling authority or facts have actually been overlooked, and merely offers substantially the same arguments [s]he offered on the original motion or attempts to advance new facts, the motion for reconsideration must be denied.”’) (citation omitted) Finally, it is evident that the Court’s determination was correct, and that the allegations in the Complaint are insufficient to meet the heightened pleading standard required by Rule 9(b). That Rule requires that a fraud complaint “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” DiMuro v. Clinique Laboratories, LLC, 572 Fed. Appx. 27, 30 (2d Cir. 2014) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). In other words, Rule 9(b) “requires that a plaintiff set forth the who, what, when, where and how of the alleged fraud.” See U.S. ex rel. Kester v. Novartis Pharm. Corp., 23 F.Supp.3d 242, 252 (S.D.N.Y. 2014). Here, the proposed amended complaint alleges in broad terms that Mr. Emanuel made efforts to conceal a $150,000 transfer of pension funds in February 2003, that the transaction was “never disclosed” to Ms. Trundle until 2016, and that Mr. Emanuel “took steps to hide from Trundle the foregoing transaction. (ECF No. 21-3. ff 22, 28, 30.) The proposed pleading does notNYSCEF DOC. NO. 42°° INDEX NO. 615288/2021 identify any statements made by Mr. Emanuel concerning the transaction, let alone explain why those statements or representations were fraudulent; instead, it merely alleges that he failed to disclose the transaction to her. Nor do Plaintiffs explain what steps Mr. Emanuel allegedly took to ensure that Ms. Trundle—a sophisticated businesswomen, who was herself a trustee and administrator of the Pension Plan, with access to all of the Pension Plan’s books and records and a fiduciary duty to oversee the Pension Plan—would not become aware of the challenged transaction. The proposed pleading fails to allege what tactics, if any, Mr. Emanuel employed to avoid detection. It merely alleges that Ms. Trundle learned, some 13 years after the challenged transaction, that “Emanuel did not take [the $150,000] as a personal distribution to himself or properly account for the same as previously understood by Trundle.” (Id. § 50.) These bare-bones allegations, amounting to an assertion that Ms. Trundle originally misunderstood the transaction, and did nothing to gain clarity over a 13-year period, fall far short of the particularity required by Rule 9(b). IV. PLAINTIFFS SHOULD BE DENIED LEAVE TO REPLEAD “A party seeking to file an amended complaint post judgment must first have the judgment vacated or set aside pursuant to Fed. R. Civ. P. 59(e) or 60(b).” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008). “[I]t would be contradictory to entertain a motion to amend the complaint” without “a valid basis to vacate the previously entered judgment.” Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 245 (2d Cir. 1991). Moreover, as the Second Circuit has explained, a post-judgment motion to amend “must be evaluated with due regard to both the value of finality and the policies embodied in Rule 15.” Williams v. Citigroup Inc., 659 F.3d 208, 213 (2d Cir. 2011). The Court may “take into account the nature of the proposed amendment in deciding whether to vacate the previously entered judgment.” Id. (quoting Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008). Like any 8INDEX NO. 615288/2021 NYSCEF DOC. NO. 42°° other motion to amend, a post-judgment motion for leave to amend should be denied when the proposed amendments would be futile. Id. Here, Plaintiffs have not demonstrated an entitlement to relief under Rules 59(e) or 60(b)—which alone is a sufficient basis to deny their post-judgment motion for leave to amend. Furthermore, as Defendant argued in detail in his motion to dismiss Plaintiffs’ original complaint (ECF 11), in opposition to Plaintiffs’ cross-motion for leave to amend (ECF 19), and again in opposition to Plaintiffs’ second motion for leave to amend (ECF 24), any claims Plaintiffs might be able to allege in an amended complaint would be barred both by the applicable statutes of limitation and by a mutual release of all claims, known and unknown, that Mr. Emanuel and Ms. Trundle executed many years ago. Accordingly, granting Plaintiffs leave to try for the fourth time to allege claims against Defendant would be futile, because Plaintiffs cannot allege any cause of action against Defendant that would survive a motion to dismiss. Plaintiffs’ request for leave to amend yet again should therefore be denied, with prejudice. The Court’s thoughtful, comprehensive and well-reasoned Decision and Order should stand. Leave to replead should be denied. CONCLUSION For all of the foregoing reasons, and based upon all of the authorities cited herein, Plaintiffs’ motion for reconsideration should be denied, as should leave to file a fourth version of their complaint.= SU > INDEX NO. 615288/2021 NYSCEF DOC. NO. 4 16 Page do aio Wyscer: 11/23/2022 Dated: New York, New York September 14, 2020 MOSKOWITZ & BOOK, LLP ole FOO Avraham C. Moskowitz (AM 8913) Christopher R. Neff (CN 1655) 345 Seventh Avenue, 21st Floor New York, New York 10001 (212) 221-7999 Attorneys for Defendant 10