60 DECLARATION of Helen Davis

Case 1:15-cv-00293-LTS-RWL Document 60 Filed 07/09/15 Page 1 of 2
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
MORTGAGE RESOLUTION SERVICING,

LLC, 1ST FIDELITY LOAN SERVICING,
LLC, and S & A CAPITAL PARTNERS, INC.,
Plaintiffs, No. 15-CV-00293 (LTS) (JCF)
v.
DECLARATION OF
JPMORGAN CHASE BANK, N.A., CHASE HELEN DAVIS CHAITMAN
HOME FINANCE, LLC, and JPMORGAN
CHASE & CO.,
Defendants.
HELEN DAVIS CHAITMAN declares under penalty of perjury pursuant to 28 U.S.C. §
1746 that the following is true and correct:
1. I am a member in good standing of the New York State Bar and a member of the
law firm of Becker & Poliakoff, LLP.
2. I submit this declaration in opposition to Defendants’ motion to transfer venue to
the United States District Court for the District of Columbia.
3. Attached hereto as Exhibit A is a true and correct copy of Day Village Ltd. P’ahip
v. CW Capital L.L.C., 2006 WL 2572118 (S.D.N.Y. Sept. 7, 2006) (Swain, J.).
4. Attached hereto as Exhibit B is a true and correct copy of Faberge USA, Inc. v.
Ceramic Glaze, Inc., No. 87 Civ. 5780, 1988 WL 31853 (S.D.N.Y. Mar. 28, 1988).
5. Attached hereto as Exhibit C is a true and correct copy of FDIC v. Bear Stearns
Asset Backed Securities I, No. 12-CV-4000, 2015 WL 1311300 (S.D.N.Y. Mar. 24, 2015).
6. Attached hereto as Exhibit D is a true and correct copy of Rowley v. City of New
York, No. 00 Civ.1793 (DAB), 2005 WL 2429514 (S.D.N.Y. Sept. 30, 2005).
{N0083745 }
Case 1:15-cv-00293-LTS-RWL Document 60 Filed 07/09/15 Page 2 of 2
7. Attached hereto as Exhibit E is a true and correct copy of Royal & Sun Alliance
Ins. PLC v. UPS Supply Chain Solutions, Inc., No. 09 CIV. 5935, 2010 WL 4967984 (S.D.N.Y.
Dec. 1, 2010).
I declare under penalty of perjury that the foregoing statements are true and correct.
July 9, 2015 /s/ Helen Davis Chaitman_________

Helen Davis Chaitman
{N0083745 }
Case 1:15-cv-00293-LTS-RWL Document 60-1 Filed 07/09/15 Page 1 of 4
EXHIBIT A
Day Village Ltd. Partnership v. CW Capital L.L.C., Not Reported in F.Supp.2d (2006)
members of CW Capital are citizens of Massachusetts or

Canada. (Suppl.Compl.¶ 3.)
2006 WL 2572118
Only the Westlaw citation is currently available.
On March 29, 1984, Plaintiff bought real property known as
United States District Court,
Day Village Apartments (the “Property”), which is located
S.D. New York.
in Maryland. (Compl.¶¶ 1, 4.) On or about February 1,
DAY VILLAGE LIMITED PARTNERSHIP Plaintiff, 1996, Plaintiff refinanced the first mortgage on the Property.
v. Defendant served as the mortgage lender. (Id. ¶ 5.) 1 The
CW CAPITAL L.L.C., Defendant. parties entered into a Deed of Trust in connection with the
Property. (Id. ¶ 7.) The relevant portion of the Deed of Trust
No. 06Civ. 3424(LTS)(HBP. | Sept. 7, 2006. provided that Plaintiff would make any payments related to
insurance coverage for the Property. (Id. ¶¶ 7-8.) Defendant
established an insurance escrow account for the Property
MEMORANDUM OPINION AND ORDER and debited the account $25,435.59 in order to acquire flood
insurance on the Property for the period of August 25, 2003,
SWAIN, J. to August 23, 2004. (Id. ¶¶ 11-12.) Plaintiff subsequently
paid Defendant $25,435.59 in order to replenish the insurance
*1 Plaintiff Day Village Limited Partnership (“Plaintiff”
escrow held by Defendant. (Id. ¶ 13.) Pursuant to the terms
or “Day Village”), a Maryland-based limited partnership,
of the Deed of Trust, any insurance proceeds could be used
alleges that Defendant CW Capital, L.L.C. (“Defendant”
to reduce the debt owed under the mortgage or to repair or
or “CW Capital”), a Massachusetts-based limited liability
rebuild the improvements on the Property. (Id. ¶ 15.)
company, violated Day Village's rights under a Deed of Trust
in connection with an apartment complex owned by Plaintiff.
On September 18, 2003, the Property suffered extensive
Plaintiff alleges breach of contract, breach of the covenant
flood damage as a result of a hurricane. (Id. ¶ 16.) Plaintiff
of good faith and fair dealing, unjust enrichment, breach of
subsequently expended substantial monies to rebuild and
fiduciary duty, and negligence, and seeks the imposition of an
repair the improvements on the Property. (Id. ¶ 17.) Plaintiff
equitable lien and restitution. Pursuant to a Court order dated
alleges that even though Defendant had contended it acquired
May 11, 2006, Plaintiff filed a supplement to the Complaint
flood insurance, Defendant failed to obtain the coverage,
alleging the citizenship of the individual members of CW
failed to submit a claim for the flood damage, or received
Capital. The Court has jurisdiction pursuant to 28 U.S.C. §
the insurance proceeds and improperly diverted them to
1332.
Plaintiff's detriment. (Id. ¶ 18.) Plaintiff alleges monetary
damages as a result of Defendant's failure to submit a claim
Defendant moves to dismiss the Complaint for improper
or credit Plaintiff for the insurance proceeds in connection
venue or, in the alternative, transfer venue to the District
with its satisfaction of the mortgage. (Id. ¶ 19.) Plaintiff
of Maryland. The Court has thoroughly considered all the
subsequently sold the property without receiving any credit
parties' submissions and, for the following reasons, denies
from Defendant for the flood insurance proceeds. (Id. ¶ 20.)
Defendant's motion to dismiss or transfer venue.
Plaintiff consequently brings claims of breach of contract,
breach of the covenant of good faith and fair dealing, unjust
enrichment, breach of fiduciary duty, and negligence, and
BACKGROUND seeks the imposition of an equitable lien, and restitution.
(Id. ¶¶ 21-50.) Plaintiff seeks monetary damages exceeding
The following facts alleged in the Complaint are taken as true $75,000. (Supp.Compl.¶ 2.)
for the purposes of the instant motion to dismiss. Plaintiff
is a Maryland limited partnership whose individual partners
are citizens of New York and whose principal place of
business is located in New York. (Compl.¶ 1.) Defendant is DISCUSSION
a Massachusetts limited liability company with its principal
Motion to Dismiss for Improper Venue
place of business located in Massachusetts. (Id. ¶ 2.) The
*2 Defendant moves to dismiss the action for improper
venue under Federal Rule of Civil Procedure 12(b)(3). A
WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

diversity action may be brought in any district where any Dismiss, at 3 n.2). Accordingly, the Southern District is an
defendant resides, if all defendants reside in the same state, appropriate venue for this action and Defendant's motion to
and a corporate defendant is deemed to reside in any judicial dismiss for improper venue is denied. 3
district where it is subject to personal jurisdiction at the time
the action is commenced. See 28 U.S.C. §§ 1391(a)(1) and (c).
Motion to Transfer Venue
On a motion to dismiss for improper venue, the burden *3 In the alternative, Defendant moves, pursuant to 28
of demonstrating proper venue falls on the plaintiff. See U.S.C. § 1404(a), to transfer this action to the District of
E.P.A. ex rel. McKeown v. Port Auth. of N.Y. and N.J., Maryland. A plaintiff's choice of forum is generally entitled
162 F.Supp.2d 173, 183 (S.D.N.Y.2001). In making its to considerable weight. See Iragorri v. United Techs. Corp.,
determination, the Court accepts all the allegations in the 274 F.3d 65, 71 (2d Cir.2001). “The moving party has the
complaint as true unless contradicted by the defendant's burden to establish a clear and convincing showing that a
affidavits. Id. The Court may “examine facts outside the transfer is appropriate and that the motion should be granted.”
complaint [including affidavits and declarations] to determine Matera v. Native Evewear, Inc., 355 F.Supp.2d 680, 687
whether venue is proper [and] must draw all reasonable (E.D.N.Y.2005) (citing Ford Motor Co. v. Ryan, 182 F.2d
inferences and resolve all factual conflicts in favor of the 329, 330 (2d Cir.1950)). The moving party must supply an
plaintiff.” Concesionaria DHM v. Int'l Fin. Corp., 307 affidavit that contains detailed factual statements explaining
F .Supp.2d 553, 555 (S.D.N.Y.2004) (citations omitted); why the motion should be granted, including information
Burrell v. State Farm Fire & Cas. Co., No. 00 Civ. 5733, on the potential principal witnesses and a general statement
2001 WL 797461, at *3 (S.D.N.Y. July 12, 2001) (in deciding as to their testimony. See Orb Factory, Ltd. v. Design
a motion for improper venue “a court may consider facts Science Toys, Ltd., 6 F.Supp.2d. 203, 208 (S.D.N.Y.1998).
outside the pleadings” and should view the facts in the light “Vague generalizations and failure to clearly specify the key
most favorable to the plaintiff). witnesses to be called, along with a statement concerning the
nature of their testimony, are insufficient basis upon which to
Plaintiff has proffered facts sufficient to show that the grant a change of venue under § 1404(a).” Id. at 208-9.
Southern District of New York is a proper venue for the
instant case. Because this is a diversity action and there Here, Defendant failed to include the requisite factual
is only one defendant, venue is proper in any district information in its moving papers. While Defendant has
where Defendant resides. As a corporate entity, Defendant proffered such an affidavit in its reply papers, the Court will
is considered a resident of any district where it is subject not consider this affidavit as arguments cannot be made for
to personal jurisdiction. See 28 U.S.C. § 1391(c); Intuition the first time in reply papers. See Knipe v. Skinner, 999 F.2d
Consol. Group, Inc. v. Dick Davis Publ'g Co., No. 03 Civ. 708, 711 (2d Cir.1993) (“Arguments may not be made for the
5063, 2004 WL 594651, at *4 (S.D.N.Y. March 25, 2004) first time in a reply brief.”); Matera, 355 F.Supp. at 682-3
(recognizing that a limited liability company is treated as a (denying motion to transfer because only affidavits were
corporate entity under 28 U.S.C. § 1391(c)); see also Hsin attached to reply papers which the court did not consider).
Ten Enter. USA, Inc. v. Clark Enters., 138 F.Supp.2d 449, Accordingly, Defendant has not satisfied its burden to show
458 (S .D.N.Y.2000) (noting the broad application of section that transfer of venue is appropriate and the motion is denied.
1391(c) to include unincorporated associations and multi-
member partnerships) (collecting cases). The facts alleged
by Plaintiff support the existence of personal jurisdiction.
CONCLUSION
Plaintiff has proffered a declaration asserting that Defendant's
own website recites that it maintains New York City offices For the foregoing reasons, Defendant's motion to dismiss the
for its structured finance and capital markets units and that Complaint or, in the alternative, to transfer venue, is denied
Defendant has made loans relating to two New York city in its entirety.
properties. (See Certification of William S. Ehrlich in Opp.
to Mot. to Dismiss, ¶¶ 6-7.) Moreover, Defendant has not SO ORDERED.
contested personal jurisdiction 2 and concedes that it is
subject to personal jurisdiction based on the fact that it does
business in New York. (See Reply Mem. in Supp. of Mot. to

All Citations
Not Reported in F.Supp.2d, 2006 WL 2572118
Footnotes
1 At the time of the refinancing, Defendant was known as Continental Wingate Associates. It changed its name to CW
Capital L.L.C. in February 2002. (Compl.¶ 6.)
2 By not contesting personal jurisdiction in a Rule 12(b) motion, a defendant, pursuant to Rule 12(h)(1)(A), waives any
lack of personal jurisdiction defense.
3 Defendant also moves to dismiss for lack of subject matter jurisdiction, arguing that this case involves claims under the
National Flood Insurance Act (“NFIA”) and that the NFIA grants exclusive jurisdiction of such claims to the district court
in which the insured property is located. However, the National Flood Insurance Act is not applicable here as it covers
actions against insurance companies providing flood insurance with the assistance of the Government. See 42 U.S.C. §§
4051-56 and 42 U.S.C. §§ 4071-4072; Palmieri v. Allstate Ins. Co., 445 F.3d 179 (2d Cir.2006) (describing the National
Flood Insurance Act and noting that cause of action exists against insurance providers). Here, there is no allegation that
Defendant was an insurance company or other insurer within the meaning of the NFIA.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

EXHIBIT B
Faberge USA, Inc. v. Ceramic Glaze, Inc., Not Reported in F.Supp. (1988)
The licensing agreement gave Ceramic permission to use

the “Ceramic Glaze” and “Faberge” marks and formulae in
1988 WL 31853
exchange for royalties payable on a regularly scheduled basis.
It also provided that the licensed trademarks be properly used.
United States District Court, S.D. New York.
FABERGE USA, INC., Plaintiff, Additionally, the agreement contains a forum-selection

v. clause, in part the subject of the instant dispute. The clause
CERAMIC GLAZE, INC., et. seq., Defendants. provides:
No. 87 CIV. 5780 (RWS). | March 28, 1988. This Agreement is executed and delivered within the State
of New York ... and it is expressly agreed that it shall be
Attorneys and Law Firms construed in accordance with the laws of the State of New
York without giving effect to the principles of the conflicts
Rubin Baum Levin Constant & Friedman, New York City
of laws thereof. In the event that any suit, action or other
(Steven M. Kaplan, of counsel), for plaintiff.
legal proceeding shall be instituted against either party hereto
Kaplan Kilsheimer & Foley, New York City (Robert N. by any other party hereto under or in connection with this
Kaplan, of counsel), for defendants. Agreement, each of the parties hereto agrees to submit, and
hereby submits, to the jurisdiction of either the United States
District Court for the Southern District of New York or any
New York State court of competent jurisdiction located in
OPINION
New York County, and further agrees to comply with all the
SWEET, District Judge. requirements necessary to give such court jurisdiction.
*1 Defendants Ceramic Glaze, Inc. (“Ceramic”) and Louis Finally, and also before the court at this time, is Orenstein's
Orenstein (“Orenstein”) have moved to dismiss plaintiff guarantee. The guarantee was executed at the same time as the
Faberge USA, Inc.'s (“Faberge”) action against them for lack agreement. The guarantee bore a separate signature, however,
of subject matter jurisdiction and venue pursuant to Rules it was attached to the main agreement and appeared before
12(b)(1) and (12(b)(3) and alternatively to transfer this action appendices to it. The guarantee provided:
to the Northern District of Illinois pursuant to 28 U.S.C.
§ 1404(a). Faberge opposes the motions based on a forum [A]s an inducement to Licensor to enter into the
selection clause contained in the agreement between the within License Agreement, [Orenstein] hereby, absolutely
parties. For the reasons stated below, the motions are denied. and unconditionally, guarantees to Licensor, Licensor's
successors and assigns, the prompt payment of claims
of every nature and description of Licensor against
Facts Licensee arising pursuant to the terms, covenants,
Faberge, a manufacturer of nail care products, marketed a conditions, warranties, representation, and agreements of the
line of products under the mark “Ceramic Glaze.” In 1985, within Agreement, and the undersigned further, absolutely
Faberge, a Minnesota corporation, entered into negotiations and unconditionally, guarantees to Licensor, Licensor's
with Orenstein on behalf of Ceramic, an Illinois corporation, successors and assigns, the full performance and observance
whereby Ceramic would be licensed to use the “Ceramic of all to the terms, covenants, conditions and agreements
Glaze” mark and formulae. therein provided to be performed and observed by the
Licensee or Guarantor....
After initial contacts, the parties met in New York on
November 5, 1985 to discuss the terms of the agreement. According to Faberge, the defendants are in breach of their
Thereafter, an agreement was drafted and sent to Orenstein contractual obligations because they have failed to pay any of
in Illinois for signature. In addition to signing the licensing the royalties owing under the agreement. Thus, on March 18,
agreement as a representative of Ceramic, Orenstein executed 1987, Faberge terminated the contract. Nonetheless, Faberge
an appended guarantee agreement in his personal capacity. contends that the defendants continued to produce, market
and sell nail care products bearing Faberge's marks despite

this termination. It filed this action alleging breach of both Forum-selection clauses are routinely enforced in this circuit.
the licensing agreement and the guarantee, violations of the See, e.g., Luce v. Edelstein, 802 F.2d 49, 57 (2d Cir.1986);
Lanham Act, 15 U.S.C. § 1125(a), and common law unfair Bense v. Interstate Battery System, 683 F.2d 718, 721–22 (2d
competition. Cir.1982); 600 Grant Street Associates Limited Partnership
v. Leon–Dielmann Investment Partnership, No. 87–8995, slip
*2 The defendants have moved to dismiss on the grounds op. at 5 (S.D.N.Y. March 11, 1988); The Aloha Group,
that Faberge has failed properly to allege diversity jurisdiction Inc. v. ITT Commercial Finance Corp., No. 86–9890, slip
for the non-federal claims and for lack of venue. In the op. at 3 (S.D.N.Y. Sept. 16, 1987). “Such clauses draw
alternative, they have moved to transfer this action to the their force from general principles of contract: ‘Enforcement
Northern District of Illinois. of a freely negotiated forum selection clause comports
with long established notions of freedom of contract and
allows parties in routine commercial transactions to eliminate
Diversity Jurisdiction the uncertainties of where litigation takes place.’ ” The
Orenstein has moved to dismiss Faberge's contract and Aloha Group, supra, slip op. at 3 (quoting Vasilopoulos v.
common law unfair competition claims against him for International Interchange Corp., Fed.Sec.L.Rep. (CCH) pp.
want of diversity jurisdiction on the ground that Faberge's 93,051, at 95,236 (S.D.N.Y.1986)).
complaint sets forth Orenstein's residence as Illinois but does
not set forth his citizenship. While it is true that residence and The defendants' reliance on the permissive nature of the
citizenship are not synonymous for diversity purposes, see, clause, if indeed the clause were permissive, is misplaced. A
e.g., Sanial v. Bossoreale, 279 F.Supp. 940 (S.D.N.Y.1967), court need only determine whether a clause is permissive if an
diversity is not the only basis for subject matter jurisdiction action is brought in a forum other than the one selected, for the
in this case. question to be answered in such a case is whether the parties
have waived their right to bring an action elsewhere. See The
Faberge has alleged violations of the Lanham Act against Aloha Group, supra, at 4. The agreement provides consent
Orenstein as well as against Ceramic. Thus, the court has to the jurisdiction of the forum selected. Id.; see New York
independent federal question jurisdiction over Orenstein. It v. Pullman, Inc., 477 F.Supp. 438, 442 n. 11 (S.D.N.Y.1979)
may therefore exercise pendant jurisdiction over the state law (jurisdiction is conferred upon the forum selected even though
claims. See United Mine Workers v. Gibbs, 383 U.S. 715 it may not be stripped from other courts).
(1966).
*3 Moreover, the clause in this case is mandatory in any
Moreover, since Faberge, in the papers opposing this motion, event. The language specifically states that “in the event
has documented that Orenstein is a citizen of Illinois and that any suit ... be instituted ... each of the parties hereto
since Orenstein has failed to deny such citizenship, 1 an agrees to submit, and hereby submits to the jurisdiction of ...
amendment of the complaint will be permitted so as to reflect the United States District Court for the Southern District of
such citizenship. See Erving v. Virginia Squires Basketball New York ...” (emphasis added). The fact that submission
Club, 349 F.Supp. 709, 711 (E.D.N.Y.1972); see also Avins is automatic in the event of any suit by operation of this
v. Hannum, 497 F.Supp. 930, 933 n. 7 (E.D.Pa.1980). clause indicates that a New York forum was intended to be
exclusive.
Choice of Forum Clause In this case, the parties do not contest the validity of the
Defendants' venue and transfer motions depend on the effect forum-selection clause; indeed, the contract was negotiated
of the choice of forum clause included in the licensing between two business entities. Only its operation is contested.
agreement. Defendants claim that the clause should not be Thus, in view of the nature of the clause and the context in
applied to overrule traditional venue requirements because which it is challenged as stated above, and in view of the
the clause is permissive and not mandatory. Moreover they Second Circuit's policy of enforcing forum-selection clauses,
claim that even if the clause were mandatory it should not be defendants' motions to dismiss for lack of venue or in the
applied to Orenstein in his individual capacity because he is alternative to transfer are denied as they relate to Ceramic.
not a party to the licensing agreement.

sophisticated business persons, such a showing is difficult to

Orenstein contends, however, that he personally is not a party
make. Id. at 12. Indeed, no such showing has been made here.
to the licensing agreement and hence the forum selection
clause and that he therefore can not be held to its terms.
Moreover, it is not, in the interest of justice to transfer this
However, the agreement Orenstein executed in his personal
action to the Northern District of Illinois. Defendants contend
capacity does not stand alone. It is part and parcel of
that since venue in an action against Orenstein is proper
the licensing agreement. In fact, the guarantee not only
in the Northern District of Illinois, the entire action should
specifically guarantees the full performance of all terms
be transferred to that district. It is true that justice will be
of the contract—forum selection not excluded—but also
best served by consolidating the cases against Orenstein and
expressly states that the guarantee itself is an inducement—
Ceramic and trying them together. However, Faberge should
a condition—of the agreement's existence. As a guarantor of
not be deprived of the benefit of its bargain—namely the
an agreement containing a New York choice of forum clause,
forum selection clause—to achieve this goal. One action
Orenstein is subject to this forum as well. See American
against both defendants should be tried before this court.
Trading Co. v. Fish, 78 Misc.2d 210, 357 N.Y.S.2d 337,
340 (Sup.Ct.1974), aff'd, 376 N.Y.S. 1014 (1st Dep't 1975),
rev'd on other grounds, 42 N.Y.2d 20, 364 N.E.2d 1309, 396
Conclusion
N.Y.S.2d 617 (1977).
*4 Defendants' motions to dismiss pursuant to Rules 12(b)
(1) and 12(b)(3) and to transfer pursuant to 28 U.S.C. § 1404
The defendants' claims of inconvenience provide insufficient
are denied.
reason for refusing to enforce the forum-selection clause.
For a court to take such action, the party wishing to set
IT IS SO ORDERED.
the clause aside must “clearly show that enforcement would
be unreasonable and unjust, or that the clause was invalid
for such reasons as fraud or overreaching.” M/S Breman All Citations
v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972). When
such clauses grow out of arms-length negotiations between Not Reported in F.Supp., 1988 WL 31853
Footnotes
1 Indeed, Ornstein has affirmatively asserted that he resides there and works there and that he has done so, thereby making
Illinois the most convenient forum to him. Such assertions connote that Ornstein is at least domiciled in Illinois, and while
residency is not synonymous with citizenship, domicile is. See Fisher v. United States, 218 F.Supp. 223 (S.D.N.Y.1963).

EXHIBIT C
F.D.I.C. v. Bear Stearns Asset Backed Securities I LLC, --- F.Supp.3d ---- (2015)
Fed. Sec. L. Rep. P 98,416
[2] Limitation of Actions

2015 WL 1311300 Nature of statutory limitation
Limitation of Actions
S.D. New York.
Operation as to rights or remedies in
FEDERAL DEPOSIT INSURANCE CORP., general
as Receiver for Citizens National Bank and Statutes of limitation limit the time period within
Receiver for Strategic Capital Bank, Plaintiff, which suits may be brought, and statutes of
v. repose mandate that there shall be no cause of
BEAR STEARNS ASSET BACKED action beyond a certain point, even if no cause of
action has yet accrued.
SECURITIES I LLC, et al., Defendants.
Cases that cite this headnote
No. 12CV4000–LTS–MHD.
| Signed March 24, 2015.
Synopsis Operation as to rights or remedies in
Background: Federal Deposit Insurance Corporation, as general
receiver for several banks, commenced action against entities
Statutes of repose operate without regard to the
involved in various aspects of securitization of issuance
accrual of causes of action and may expire and
of residential mortgage backed securities (RMBS), alleging
extinguish potential causes of action before they
that defendants violated Securities Act of 1933. Defendants
accrue at all; unlike statutes of limitation, statutes
moved to dismiss.
of repose are measured not from the date on
which the claim accrues but instead from the
date of the last culpable act or omission of the
[Holding:] The District Court, Laura Taylor Swain, J., held defendant.
that federal statute extending period of time for FDIC to file
action under Securities Act of 1933 in its capacity as receiver Cases that cite this headnote
did not apply to statute of repose.
Construction of Limitation Laws in General
Motion granted.
The remedial purpose of a statute is not a license
to eschew the import of the text of an extender
provision as enacted by Congress.
West Headnotes (5)

[5] Courts
Liabilities Created by Statute
Conclusiveness of decisions of Court of
Federal statute extending period of time for
Appeals within its circuit
Federal Deposit Insurance Corporation to file
A decision of the Second Circuit is binding
action under Securities Act of 1933 in its
on lower courts in the Second Circuit unless it
capacity as receiver did not apply to statute of
has been called into question by an intervening
repose. Financial Institutions Reform, Recovery,
Supreme Court decision or by a decision of the
and Enforcement Act of 1989, 12 U.S.C.A. §
Second Circuit sitting in banc or unless and until
1821(d)(14); Securities Act of 1933, § 13, 15
its rationale is overruled, implicitly or expressly,
U.S.C.A. § 77m.
by the Supreme Court, or the Second Circuit
Cases that cite this headnote court in banc.

(collectively, “Defendants”), 1 alleging that Defendants

violated the Securities Act of 1933 (the “1933 Act”) in
connection with the issuance of certain certificates backed
by collateral pools of residential mortgage loans. Plaintiff
amended the complaint on October 12, 2012 (the “Amended
Attorneys and Law Firms Complaint”).
Grais & Ellsworth LLP by Mark B. Holton, Esq., David J.
Defendants later brought the instant motion to dismiss the
Grais, Esq., Kathryn E. Matthews, Esq., New York, NY, for
Amended Complaint (the “Motion”), arguing that the action
Plaintiff Federal Deposit Insurance Corporation, as Receiver
is untimely and that the Amended Complaint fails to state a
for Citizens National Bank and as Receiver for Strategic
claim upon which relief can be granted. Among Defendants'
Capital Bank.
arguments was the assertion that the FDIC's 1933 Act claims
Simpson Thacher & Bartlett LLP by Andrew T. Frankel, are barred by the statute of repose provision set forth in
Esq., Thomas C. Rice, Esq., Abigail W. Williams, Esq., New Section 13 of the 1933 Act, 15 U.S.C. § 77m. Plaintiff
York, NY, for Defendants Deutsche Bank Securities Inc., asserted that the statute of repose was preempted by an
RBS Securities Inc., and UBS Securities LLC. extension provision of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (“FIRREA”),
Cravath, Swaine & Moore LLP, by Richard W. Clary, Esq., codified as 12 U.S.C. § 1821(d)(14) (the “FDIC Extender
Julie A. North, Esq., Richard J. Stark, Esq., Michael T. Provision”). While the motion was pending, the Second
Reynolds, Esq., Lauren A. Moskowitz, Esq., New York, NY, Circuit held, in Federal Housing Finance Agency v. UBS
for Defendants Credit Suisse Securities (USA) LLC, Credit Americas, Inc., 712 F.3d 136 (2d Cir.2013), that the Section
Suisse First Boston Mortgage Securities Corp., and Credit 13 statute of repose was preempted by the extension provision
Suisse Management LLC. of the Housing and Economic Recovery Act of 2008
(“HERA”), 12 U.S.C. § 4617(b)(12), which is substantially
Mayer Brown LLP, by Michael O. Ware, Esq., S. Christopher
identical to the FDIC Extender Provision, and Defendants
Provenzano, Esq., New York, NY, for Defendant HSBC
withdrew the Section 13 aspect of their motion. The Supreme
Securities (USA), Inc.
Court thereafter held in CTS Corp. v. Waldburger, –––
U.S. ––––, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014), that
an extender provision of the Comprehensive Environmental
OPINION AND ORDER Response, Compensation and Liability Act (“CERCLA”) did
not preempt statutes of repose, and remanded, in light of that
LAURA TAYLOR SWAIN, District Judge.
decision, a Tenth Circuit decision 2 that had held that statutes
*1 In this action Plaintiff, the Federal Deposit Insurance of repose were preempted by another statutory provision that
Corporation, as receiver for both Citizens National is substantially identical to the FDIC Extender Provision.
Bank (“CNB”) and Strategic Capital Bank (“SCB,” and At the parties' suggestion, the Court ordered supplemental
together with CNB the “Banks”), sues Bear Stearns briefing of Defendants' reinstated statute of repose argument.
Asset Backed Securities I LLC (“BSABS”); the Bear
Stearns Companies LLC; J.P. Morgan Securities LLC; This Court has jurisdiction of this action pursuant to 28 U.S.C.
Citicorp Mortgage Securities, Inc. (“CMSI”); CitiMortgage, § 1331, and has considered carefully the submissions of the
Inc. (“CitiMortgage”); Citigroup Global Markets Inc. parties. For the reasons stated below, Defendants' Motion is
(“Citigroup”); Credit Suisse First Boston Mortgage Securities granted.
Corp.; Credit Suisse Management LLC (“Credit Suisse
Mgmt.”); Credit Suisse Securities (USA) LLC (“Credit
Suisse Securities”); Merrill Lynch Mortgage Investors,
BACKGROUND
Inc. (“Merrill Lynch”); Merrill Lynch Mortgage Capital
Inc. (“MLMCI”); Merrill Lynch, Pierce, Fenner & Smith *2 The following facts are taken from the Amended
Inc.; Ally Securities, LLC; Deutsche Bank Securities Inc. Complaint. Plaintiff's factual allegations are accepted as true
(“DBS”); HSBC Securities (USA) Inc. (“HSBC”); RBS for the purpose of resolving this Motion.
Securities Inc. (“RBS”); and UBS Securities LLC (“UBS”)

Defendants were involved in various aspects of the after such discovery should have been made by the exercise
securitization of an issuance of residential mortgage of reasonable diligence.” 15 U.S.C.S. § 77m (LexisNexis
backed securities (“RMBS”). Between September 2007 and 2012). The statute of limitations may be tolled based on
April 2008, CNB purchased ten RMBS certificates for equitable considerations, but not beyond three years from the
approximately $67.5 million, and SCB purchased nine of date of the relevant offering, at which point a plaintiff's claim
the certificates for approximately $73 million (together, the is extinguished by Section 13's second prong—a statute of
“Securities”). Each of the Securities was offered to the public repose—which provides that “[i]n no event shall any such
in 2006 and 2007. (See Am. Compl., Schedules 1–3, 5, 7, 10– action be brought ... more than three years after the security
12 Items 38(a) & 38(b).) was bona fide offered to the public.” Id.
BSABS, MLMI, and CMSI issued certain of the Securities. *3 The FDIC asserts that its claims are timely,
Certain of the Defendants—Citigroup, Credit Suisse notwithstanding the three-year Section 13 statute of repose,
Securities, RBS, Bear Stearns, Merrill Lynch, DBS, UBS, because the statute of repose is preempted by the FDIC
and HSBC—acted as underwriters for the Securities. These Extender Provision, which reads in pertinent part as follows:
underwriters purchased certificates from the trust and sold
them to various investors, including the Banks. CitiMortgage, Statute of limitations for actions brought by conservator or
MLMCI, and Credit Suisse Mgmt. are sued as control receiver
persons.
(A) In general
The Banks were closed by the FDIC on May 22, 2009, and
Notwithstanding any provision of any contract, the
were placed into receivership. The FDIC thereafter conducted
applicable statute of limitations with regard to any action
an extensive investigation of the Securities, including a
brought by the [FDIC] as conservator or receiver shall be—
detailed analysis of a random sample of the loans underlying
each of the twelve Securities at issue here. This investigation (i) in the case of any contract claim, the longer of-
included use of an automated valuation model which was
based on “objective criteria like the condition of the property (I) the 6–year period beginning on the date the claim
and the actual sale prices of comparable properties in the accrues; or
same locale shortly before the specified date.” (Amend.
(II) the period applicable under State law; and
Compl. ¶ 50.) The FDIC alleges that this modeling revealed
that loan-to-value ratios were misstated significantly in the (ii) in the case of any tort claim (other than a claim which
offering documents for the Securities, and that “the number is subject to section 1441a(b)(14) of this title), the longer
of properties on which the value was overstated exceeded by of—
far the number on which the value was understated, and the
aggregate amount overstated exceeded by far the aggregate (I) the 3–year period beginning on the date the claim
amount understated.” (Amend. Compl. ¶ 51.) accrues; or
The FDIC, as receiver for the Banks, filed this lawsuit on May (II) the period applicable under State law.
18, 2012, well over three years after each of the Securities
(B) Determination of the date on which a claim accrues
was offered to the public.
For purposes of subparagraph (A), the date on which the
statute of limitations begins to run on any claim described
DISCUSSION in such subparagraph shall be the later of—
[1] Claims brought under Section 11 of the 1933 Act are (i) the date of the appointment of the [FDIC] as
subject to the two-pronged timing provision of Section 13 conservator or receiver; or
of that Act, which is codified as 15 U.S.C. § 77m. The first
(ii) the date on which the cause of action accrues.
prong of Section 13 is a statute of limitations, which provides
that Section 11 claims must be brought within one year of 12 U.S.C.S. § 1821(d)(14) (LexisNexis 2008).
“the discovery of the untrue statement or the omission, or

The FDIC asserts that the Second Circuit's 2013 decision in

Federal Housing Finance Agency v. UBS Americas, Inc., 712 For purposes of subparagraph (A), the date on which the
F.3d 136 (2d Cir.2013), holding that a substantially identical statute of limitations begins to run on any claim described
extender statute, governing actions brought by the Federal in such subparagraph shall be the later of—
Housing Finance Agency (the “FHFA”), preempted the 1933
(i) the date of the appointment of the [FHFA] as
Act's statute of repose, is binding precedent that requires this
conservator or receiver; or
Court to reject Defendants' untimeliness argument.
(ii) the date on which the cause of action accrues.
Defendants contend that the Supreme Court's decision in CTS
Corp. v. Waldburger, ––– U.S. ––––, 134 S.Ct. 2175, 189 12 U.S.C.S. § 4617(b)(12) (LexisNexis 2014). In reaching
L.Ed.2d 62 (2014), requires a different result. In Waldburger, its decision, the Second Circuit found that, in using the
the Court held that section 9658 of the CERCLA, which phrase “the applicable statute of limitations with regard to
preempts state law statutes of limitations in certain tort any action brought by [FHFA] as conservator or receiver,”
actions, does not preempt state statutes of repose. The Congress had expressed its intent to set a timing rule that
question thus before the Court is whether the Supreme a “reasonable reader could only understand ... to apply to
Court's analysis in Waldburger calls the Second Circuit's UBS both the federal and state claims in” the case—that is, to
analysis into question sufficiently to relieve this Court of any both statutes of limitation and the federal statute of repose.
obligation to follow UBS in determining the scope of the UBS, 712 F.3d at 141–42 (quoting 12 U.S.C. § 4617(b)(12)
FDIC Extender Provision. (A) (emphasis supplied by UBS Court)). “[A]ny ambiguity”
in the text of the statute was, the court held, eliminated by
In UBS, the Second Circuit held that the extender statute the legislative history of the extender provision, which makes
applicable to actions brought by the FHFA, in its capacity it clear that HERA was intended to empower the FHFA to
as conservator of the Federal National Mortgage Association collect all monies due to the conservatee agencies and provide
and the Federal Home Loan Mortgage Corporation under the FHFA with time to mobilize and determine what claims
HERA, operated to extend the FHFA's time to assert federal to bring. According to the UBS Court, “it would have made
securities law claims, notwithstanding the repose provision no sense for Congress to have carved out securities claims
of Section 13 of the 1933 Act. HERA's extender provision from the ambit of the extender statute, as doing so would
provides in pertinent part that: have undermined Congress' intent to restore [the conservatee
agencies] to financial stability.” Id. at 142.
(A) In General
Although the court recognized the distinct theoretical
Notwithstanding any provision of any contract, the
character of statutes of limitation as compared to statutes of
applicable statute of limitations with regard to any action
repose, it observed that both courts and Congress have long
brought by the [FHFA] as conservator or receiver shall be
used the term “statute of limitations” to refer to both, and
—
concluded that “[i]n view of the text of the statute and its
*4 (i) in the case of any contract claim, the longer of— legislative history ..., it is clear that Congress intended one
statute of limitations—[the HERA extender statute] ...—to
(I) the 6–year period beginning on the date on which apply to all claims brought by FHFA as conservator.” Id. at
the claim accrues; or 143. Congress would have used distinct, explicit terminology
had it “really wanted to exclude securities claims from the
(II) the period applicable under State law; and ambit of HERA's extender statute,” according to the UBS
Court. Id. Based on this analysis, the UBS Court held that the
(ii) in the case of any tort claim, the longer of—
HERA extender statute “supplants any other time limitations
(I) the 3–year period beginning on the date on which that might otherwise have applied” and saved the FHFA's
the claim accrues; or Securities Act claims from the otherwise-applicable statute of
repose. Id. at 143–44.
(II) the period applicable under State law.
The Supreme Court's Waldburger decision calls into question
(B) Determination of the date on which a claim accrues several aspects of the UBS Court's analysis. Focusing on

the text of the CERCLA extender statute, the Waldburger

Court noted that the CERCLA statute used the term As to the significance of the purpose of the CERCLA extender
“statute of limitations” four times (in addition to use in the statute—“namely to help plaintiffs bring tort actions for harm
statute's caption), finding that usage “instructive” but not caused by toxic contaminants”—the Court cautioned that
“dispositive.” 134 S.Ct. at 2185. Acknowledging that the “the level of generality at which the statute's purpose is
term “statute of limitations” is sometimes used in a “less framed affects the judgment whether a specific reading will
formal” sense, referring “to any provision restricting the time further or hinder that purpose.” Id. at 2188. The Court noted
in which a plaintiff must bring suit,” the Court proceeded “to that CERCLA does not provide a comprehensive remedial
examine other evidence of the meaning of the term ‘statute framework 3 but, rather, leaves “judgments about causes
of limitations' ” as used in the CERCLA extender statute. Id. of action, the scope of liability, the duration of the period
Textual clues to meaning included the use of singular terms provided by statutes of limitations, burdens of proof, rules of
in referring to the period covered by the extension: “ ‘the evidence and other important rules governing civil actions”
applicable limitations period,’ ‘such period shall commence’ to state law. Id. In the context of this framework, the Court
and ‘the statute of limitations established under State law.’ ” held that, “[r]espondents ha[d] not shown that in light of
The Court observed that “[t]his would be an awkward way to Congress' decision to leave those many areas of state law
mandate the pre-emption of two different time periods with untouched, statutes of repose pose an unacceptable obstacle
two different purposes.” Id. at 2186–87. to the attainment of CERCLA's purposes.” Id.
*5 [2] Focusing on the difference in operation between [3] Like the CERCLA extender statute, the FDIC's Extender
statutes of limitation, which limit the time period within Provision refers only to “statute of limitations” in the singular,
which suits may be brought, and statutes of repose, which several times, and includes no reference to any statute of
“mandat[e] that there shall be no cause of action beyond a repose. The Extender Provision is phrased by reference to the
certain point, even if no cause of action has yet accrued,” the accrual of causes of action—the uniform extended limitations
Court held that periods provided for FDIC-initiated actions “begin[ ] on the
date the claim accrues,” and “the date on which a claim
[i]n light of the distinct purpose for statutes of repose, the
accrues” is defined as “the date on which the statute of
[CERCLA statute's] definition of ‘applicable limitations
limitations begins to run on any claim described” in the
period’ [ (‘the period specified in a statute of limitations
relevant subparagraph, determined by reference to the date on
during which a civil action ... may be brought’) ] (and
which the FDIC was appointed as conservator or receiver or,
thus also the definition of ‘commencement date’ [ (defined
if later, “the date on which the cause of action accrues.” 12
as ‘the date specified in a statute of limitations as the
U.S.C.S. § 1821(d)(14) (LexisNexis 2008). As the Supreme
beginning of the applicable limitations period’) ] ) is
Court recognized in Waldburger, statutes of repose operate
best read to encompass only statutes of limitations, which
without regard to the accrual of causes of action and, indeed,
generally begin to run after a cause of action accrues and
may expire and extinguish potential causes of action before
so always limit the time in which a civil action ‘may be
they accrue at all. See 134 S.Ct. at 2187. Unlike statutes
brought.’ A statute of repose, however, may preclude an
of limitation, statutes of repose are “measured not from the
alleged tortfeasor's liability before a plaintiff is entitled to
date on which the claim accrues but instead from the date
sue, before an actionable harm occurs.
of the last culpable act or omission of the defendant.” Id. at
Id. at 2187. The Court also found particularly significant 2182. The FDIC Extender Provision's supplemental provision
a 1982 Congressionally-commissioned Study Group Report is triggered by, and measures accrual from, the appointment
concerning the effect of state statutes of limitation and of the FDIC as conservator, not any action of the defendant.
statutes of repose on CERCLA claims, which specifically The text of the FDIC Extender Provision, read in light of
recommended that both types of statutes be repealed. This the Waldburger Court's analysis, thus indicates strongly that
report confirmed that Congress had been advised of the Congress did not intend to encompass both types of timing
clear distinction between the two types of statutes, and provisions when it referred to statutes of limitation.
made it “proper to conclude that Congress did not exercise
the full scope of its pre-emption power” when it enacted *6 A finding that the Extender Provision does not supplant
the CERCLA extender statute, referring only to statutes of both types of timing provisions is not inconsistent with its
limitation, in response to the Report. Id. at 2186. remedial purpose, which is “to maximize potential recoveries

by the Federal Government by preserving to the greatest the FDIC Extender Provision, it is clear that Congress was
extent permissible by law claims that otherwise would well aware of the two distinct concepts and had enacted
have been lost due to the expiration of hitherto applicable both types of provisions in the time frame surrounding
limitations periods.” See 135 Cong. Rec. § 10205 (daily the enactment of the FDIC Extender Provision. See In re
ed. Aug. 4, 1989). Like the CERCLA extender statute, the Countrywide Financial Corp. Mortgage–Backed Securities
FDIC Extender Provision does not create new causes of Litig., 966 F.Supp.2d 1031, 1037–39 (C.D.Cal.2013)
action or procedural provisions to supplant existing statutory (discussing Congressional Record statements and statutory
provisions. Extending statutes of limitation broadens the enactments).
FDIC's potential scope of recoveries; the fact that certain
securities law causes of action may be extinguished by the *7 The Court recognizes that the Tenth Circuit, following
statute of repose does not indicate that the statute of repose the Supreme Court's remand in light of Waldburger, adhered
is “an unacceptable obstacle to the attainment of [the FDIC to its earlier holding in Nomura that the National Credit
Extender Provision's] purpose.” Cf. Waldburger, at 2188. As Union Administration Board's extender statute, which is
another judge of this District has observed, “[b]y postponing substantially identical to the FDIC Extender Provision,
otherwise applicable times of accrual of claims in state preempts both statutes of repose and statutes of limitation. See
statutes of limitations, the FDIC Extender Provision did give 764 F.3d at 1239. The Court respectfully disagrees with the
the FDIC more time to bring claims that would otherwise have Nomura decision on remand which, among other things, reads
been lost, thus increasing the FDIC's ability to collect money a provision measuring the extended statute of limitations from
through litigation.” F.D.I.C. v. Chase Mortgage Fin. Corp., the date of appointment of the plaintiff conservator as “invok
42 F.Supp.3d 574, 579 (S.D.N.Y.2014). A literal reading of [ing] the concept of repose because it is based on when a
the FDIC Extender Provision is thus effective to promote specific event occurs, regardless of whether the plaintiff is
the purposes of the provision. Reading the statute of repose aware of the injury.” 764 F.3d at 1211. That provision appears
as preempted could, furthermore, produce extraordinarily under the heading “Determination of the date on which a
open-ended liability for securities issuers. If, for instance, claim accrues.” 12 U.S.C.S. § 1787(b)(14)(B) (LexisNexis
the relevant statute of limitations is discovery-based and the 2012). As explained above, concepts of claim accrual, and
FDIC takes over as receiver prior to discovery of the wrong, measurement from events distinct from the actions of the
the FDIC Extender Provision, which sets the outside date as defendant, are entirely inconsistent with the conceptual and
the later of the three-year period beginning on the date the practical framework of statutes of repose. Cf. Waldburger,
FDIC is appointed and three years after the cause of action 134 S.Ct. at 2182.
accrues by reason of discovery, would subject the issuer to
potentially unlimited exposure to suit. Nothing in the text of [5] The analytical framework set out by the Supreme
the FDIC Extender Provision suggests that Congress intended Court in Waldburger calls into question the Second Circuit's
such a result. analysis of the extender provision of HERA in its UBS
decision, implicitly overruling material aspects of the UBS
[4] In UBS, the Second Circuit also relied heavily on the decision's rationale. “Lower courts are bound by Second
remedial purposes discussed in the legislative history of the Circuit precedent ‘unless it is expressly or implicitly
HERA statute and the mission of the FHFA, which is similar overruled’ by the Supreme Court or an en banc panel of
to that of the FDIC under FIRREA. Waldburger instructs that the Second Circuit. Courts have interpreted this to mean
the remedial purpose of a statute is not a license to eschew that a decision of the Second Circuit is binding ‘unless it
the import of the text of an extender provision as enacted has been called into question by an intervening Supreme
by Congress. UBS, in citing the mission of the FHFA as the Court decision or by one of the Second Circuit sitting
proper basis of an assumption that Congress would not have in banc’ or ‘unless and until its rationale is overruled,
intended to exclude securities law claims otherwise governed implicitly or expressly, by the Supreme Court, or the Second
by a statute of repose, appears to have taken an analytical path Circuit court in banc.’ ” In re S. African Apartheid Litig.,
inconsistent with the Supreme Court's new guidance. 4 15 F.Supp.3d 454, 459–60 (S.D.N.Y.2014) (quoting World
Wrestling Entm't Inc. v. Jakks Pac., Inc., 425 F.Supp.2d 484,
Furthermore, although there appears to be no legislative 499 (S.D.N.Y.2006) and United States v. Agrawal, 726 F.3d
history indicating that Congress made a specific decision 235, 269 (2d Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct.
to exclude statutes of repose from the text or operation of 1527, 188 L.Ed.2d 459 (2014)) (internal quotation marks

For the foregoing reasons, Defendants' motion to dismiss the

omitted). Accordingly, the UBS decision does not bind this
Amended Complaint is granted. Plaintiff's motion for a partial
Court in its evaluation of the parties' contentions regarding
lift of the PSLRA discovery stay is denied as moot.
the scope of the FDIC Extender Provision.
*8 The Clerk of the Court is directed to enter judgment in

Having considered the text of the FDIC Extender Provision
favor of Defendants and to close this case.
in light of its legislative context and the guidance provided
by the Supreme Court's Waldburger decision, the Court
This Memorandum Opinion and Order resolves docket entry
concludes that the FDIC Extender Provision does not preempt
numbers 80 and 132.
the statute of repose set forth in Section 13 of the 1933 Act.
Accordingly, Defendants' motion to dismiss the Amended
SO ORDERED.
Complaint as untimely is granted and the Court need not
address the parties' remaining arguments in connection with
the motion practice.
All Citations
--- F.Supp.3d ----, 2015 WL 1311300, Fed. Sec. L. Rep. P

98,416
CONCLUSION
Footnotes
1 Ally Securities, LLC, Bear Stearns Asset Backed Securities I LLC; the Bear Stearns Companies LLC; J.P. Morgan
Securities LLC, Citicorp Mortgage Securities, Inc., CitiMortgage, Inc., Citigroup Global Markets Inc., and the Merrill Lynch
Defendants have each been dismissed with prejudice by stipulated order pursuant to Federal Rule of Civil Procedure 41.
(Docket entry numbers 101, 102, 115, and 126.)
2 Nat'l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 727 F.3d 1246, 1249 (10th Cir.2013), cert. granted,
judgment vacated, ––– U.S. ––––, 134 S.Ct. 2818, 189 L.Ed.2d 783 (2014), remand decision, 764 F.3d 1199 (10th
Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 949, 190 L.Ed.2d 830 (2015).
3 The Waldburger Court expressly rejected application of “the proposition that remedial statutes should be interpreted in a
liberal manner” to “substitute for a conclusion grounded in the statute's text and structure,” noting that “[a]fter all, almost
every statute might be described as remedial in the sense that all statutes are designed to remedy some problem.”
134 S.Ct. at 2185. Instead, the congressional intent in enacting such statutes should be interpreted “primarily from the
statutory text.” Id.
4 See supra note 3.

EXHIBIT D
Rowley v. City of New York, Not Reported in F.Supp.2d (2005)
his car over at Union Square to let out the two passengers
sitting in the back seat. (Am. Compl. ¶¶ 2, 24; Pls.' 56.1 Stmt.
2005 WL 2429514
¶ 10.)
As the two women were preparing to exit, a yellow taxicab
S.D. New York.
pulled in front of the car. (Am. Compl. ¶¶ 2, 25; Defs.' 56.1
Jason ROWLEY, Sheldon Gilbert, Lauren Stmt. ¶ 11.) According to Plaintiffs, a man jumped out of
Sudeall, and Marie Claire Lim, Plaintiffs, the taxi, and pointed a gun directly at the windshield. (Am.
v. Compl. ¶ 26; Pls.' 56.1 Stmt. ¶¶ 38-41.) Two other men
also exited the yellow vehicle. (Am. Compl. ¶ 27; Pls.' 56.1
THE CITY OF NEW YORK, The New York City
Stmt. ¶ 40.) The Plaintiffs allege that they “were frightened
Police Department, The New York Department of
and believed their lives were in danger.” (Am.Compl.¶ 33.)
Corrections, Detective Robert Williamson, Sergeant
According to Rowley, he and others were screaming at the
Scott Sweeny, Sergeant Joseph Pollack, Detective time, “like crying screaming, like I am going to die screams,
John Katehis, Detective Richard Hewitt, Detective not specific words, but screaming.” (Rowley Dep. at 90.)
David Nedd, and Police Officers and Corrections Rowley, who claims to have thought he was being carjacked
Officers John and Jane Does # 1-20, Defendants. or the victim of a racially motivated assault (Pls.' 56.1 Stmt.
¶ 46), proceeded to duck his head behind the steering wheel,
No. 00 Civ. 1793(DAB). | Sept. 30, 2005. put his car in reverse, and drive backwards “to escape.” (Am.
Compl. ¶ 34; Defs.' 56.1 Stmt. ¶ 16; Pls.' 56.1 Stmt. ¶ 16.)
When he hit “an object” behind him, he drove forward and
MEMORANDUM & ORDER “hit another object.” (Am.Compl.¶ 34.) With his head still
lowered, Rowley proceeded to repeat the sequence before
BATTS, J. stopping the vehicle. (Am. Compl. ¶ 34; Defs.' 56.1 Stmt.
¶ 20; Pls.' 56.1 Stmt. ¶ 20.) When his car finally came to a
*1 Plaintiffs Jason Rowley, Sheldon Gilbert, Lauren Sudeall
standstill, one of the individuals who had emerged from the
and Marie Claire Lim (“Plaintiffs”) bring this civil rights
taxicab smashed the driver's side window. (Am. Compl. ¶
action for damages, pursuant to 42 U.S.C. § 1983, assault
35; Pls.' 56.1 Stmt. ¶ 51.) According to Plaintiffs, a gun was
and battery, false arrest and false imprisonment, malicious
held to Rowley's head (Pls.' 56.1 Stmt. ¶¶ 26, 52) and Rowley
prosecution, and negligent hiring, training, and retention of
was pulled from the car through the smashed window. (Am.
employment services. 1 The City of New York, the New Compl. ¶¶ 36-37; Pls.' 56.1 Stmt. ¶ 53.)
York City Police Department, the New York Department
of Corrections, and various named and unnamed police and *2 What seemed at the time to Plaintiffs to be a carjacking
corrections officers (“Defendants”) move for partial summary or an assault, was actually a police stop. The yellow taxicab
judgment as to three of the claims: false arrest, malicious was in fact an undercover police unit, and the individual who
prosecution, and negligent hiring, training, and retention. pointed the gun at the Camry was an undercover police officer
For the reasons stated below, Defendants' motion for partial dressed in plainclothes. (Am.Compl.¶¶ 2-3, 32.) Defendant
summary judgment as to these three claims is DENIED in part Joseph Pollack was riding in the undercover taxi vehicle with
and GRANTED in part. Defendants Robert Williamson and John Katehis that night.
(Defs.' 56.1 Stmt. ¶ 4; Pls.' 56.1 Stmt. ¶ 4.) According to
Defendant Pollack, the Camry attracted his attention, so he
I. BACKGROUND
ran the car's license plate through a police computer inside
Shortly before midnight on January 10, 2000, Plaintiff
his car, which indicated the vehicle was stolen. (Defs.' 56.1
Rowley was driving his two-door Toyota Camry in
Stmt. ¶¶ 3, 5; Pls.' 56.1 Stmt. ¶ 5.) The officers decided to
Manhattan, in the area of Union Square on 14 th Street, with stop the car, and Pollack radioed for a backup unit. (Defs.'
three of his coworkers. (Am. Compl. ¶¶ 2, 22; Pls.' 56.1 Stmt. 56.1 Stmt. ¶¶ 6-7; Pls.' 56.1 Stmt. ¶¶ 6-7.) The call was picked
¶¶ 1, 2; Defs.' 56.1 Stmt. ¶¶ 1, 2.) Plaintiff Gilbert was in the up by Defendant uniformed police officers Scott Sweeney,
front passenger seat and Plaintiffs Lim and Sudeall were in David Nedd, and Richard Hewitt, who were in an unmarked
the back seat. (Am.Compl.¶ 2.) Rowley and Gilbert are black, Ford Crown Victoria, which pulled in behind the Camry.
Lim is Filipino, and Sudeall is bi-racial. (Id.) Rowley pulled

(Defs.' 56.1 Stmt. ¶¶ 8, 12, 15; Pls.' 56.1 Stmt. ¶ 8.) The he was “punched and received many blows to his body and
“object” Rowley hit behind him was the Crown Victoria and head from two police officers while he was lying on the
the “object” that he hit in front of him was the taxicab. (Pls.' ground.” (Am.Compl.¶ 44.) Gilbert and Rowley's handcuffs
56.1 Stmt. ¶¶ 17, 19.) caused them both pain. (Id. at ¶¶ 68-69.) Police officers also
ordered the backseat passengers, Sudeall and Lim, to get out
The men in the yellow taxi were not wearing police uniforms of the car. (Am. Compl. ¶¶ 51, 57; Pls.' 56.1 Stmt. ¶ 59.) Both
(Defs .' 56.1 Stmt. ¶ 14), and Plaintiffs allege that the men did Sudeall and Lim were handcuffed tightly causing “extreme
not have badges identifying themselves as police officers, did pain.” (Am.Compl.¶¶ 54-55, 59-60.)
not inform the Plaintiffs that they were police officers, and
Plaintiffs further allege that none of them heard police sirens. Rowley's vehicle previously was stolen on November 6, 1999
(Am. Compl. ¶¶ 28-31; Pls.' 56.1 Stmt. ¶ 15.) and later was recovered by the police. (Pls.' 56.1 Stmt. ¶¶ 71,
72.) Rowley retrieved his car on November 19, 1999. (Id. at
According to Defendants, officers from both the cars ¶ 74.) According to Rowley, in December of 1999, Plaintiff
approached the Camry. (Defs.' 56.1 Stmt. ¶ 13.) Also Rowley had lent his car to a friend, who was stopped by
according to Defendants, while Rowley was moving his car police officers on suspicion of the car being stolen, because
backwards and forwards, Defendant Pollack “was forced to the “alarm” on the car was still active. 2 (Id. at ¶¶ 75, 77.)
jump over a concrete barrier in order to avoid being killed or However, those officers permitted Rowley's friend to call him
having his legs crushed.” (Defs.' 56.1 Stmt. ¶ 21.) Defendants and tell him the situation. (Rowley Dep. at 60-62.) Rowley
allege that Defendant Sweeney had to jump over a barrier ran to the scene and produced the documents that proved the
twice (id. at ¶ 22), and that Defendant Hewitt “had to jump car was his, that it had been stolen, and that he had reclaimed
into a lane of traffic to avoid being pinned between his car and it the month before. (Id.) According to Rowley, the police at
the Camry.” (Id. at ¶ 21.) Defendant Nedd also was struck in the time told him they would remove the alarm. ((Pls.' 56.1
the leg by Plaintiff's vehicle. (Id. at ¶ 25.) Plaintiffs dispute Stmt. ¶ 77.)
the seriousness of the danger in which Defendants allege they
were placed by Plaintiff Rowley's actions. Plaintiffs allege After being handcuffed the night in question, all the Plaintiffs
that Defendant Pollack was out of harm's way, “but rashly
were transported to the 13 th Precinct. (Defs.' 56.1 Stmt. ¶
jumped in front of the moving vehicle, and started trying to
27; Pls.' 56.1 Stmt. ¶ 27; Am. Compl. ¶¶ 61, 66.) According
pull [Plaintiff] Gilbert out of the car.” (Pls.' 56.1 Stmt. ¶ 21.)
to Rowley, he was bleeding profusely from his hand and a
Plaintiffs further allege that Defendant Sweeney “hopped”
police officer or emergency medical technician helped him
over the concrete barrier instead of being forced to jump over
wash and bandage it at the precinct. (Am.Compl.¶ 72.) All
it. (Id. at ¶ 22.) Plaintiffs also dispute whether the Camry came
the Plaintiffs were charged with grand larceny auto. (Defs.'
right at Defendant Hewitt, and whether he was forced to jump
56.1 Stmt. ¶ 28; Pls.' 56.1 Stmt. ¶ 28.) However, Defendants
into a lane of traffic. (Id. at ¶¶ 23-24.) And finally, Plaintiffs
eventually learned that the vehicle was not in fact stolen.
dispute the seriousness of Nedd's wound, claiming that his leg
(Defs.' 56.1 Stmt. ¶ 29.) The precise time when Defendants
was merely “nicked.” (Id. at ¶ 25.)
learned that the car was not stolen is in dispute. Plaintiffs
claim that Defendants discovered at the scene that the car
*3 Also disputed is the nature of the impact of Rowley's
belonged to Rowley. (Pls.' 56.1 Stmt. ¶¶ 29, 61-62.) Plaintiffs
car with the taxi and the Crown Victoria. Plaintiffs describe
also claim that the Defendants were aware that computer
the impact with the Crown Victoria as a “bump” and the
information regarding stolen cars often is inaccurate. (Pls.'
impact with the taxi as an “abrupt stop.” (Id. at ¶¶ 17, 19,
56.1 Stmt. ¶ 78.) The Defendants voided the arrests of Gilbert,
20.) Defendants characterize the impact as crashing into the
Sudeall and Lim, who were released from custody later
Crown Victoria and taxi. (Defs.' 56.1 Stmt. ¶¶ 16, 17, 19, 20.)
that night. (Defs.' 56 .1 Stmt. ¶ 30; Pls.' 56.1 Stmt. ¶ 30.)
Defendants also dropped the charge of grand larceny auto
After he was removed from the vehicle, the officers
against Plaintiff Rowley, but he was charged with reckless
handcuffed Rowley and subsequently “hit, punched, kicked
endangerment in the first degree “because of his actions with
and hit with a hard object,” and cut his hand. (Am. Compl. ¶¶
his vehicle.” (Defs.' 56.1 Stmt. ¶¶ 31-32; Defs.' 56.1 Stmt.
38-41; Pls.' 56.1 Stmt. ¶ 55.) Plaintiff Gilbert also was forcibly
Exhbt C; Pls.' 56.1 Stmt. ¶¶ 31, 32.) According to Rowley,
pulled from the car and allegedly beaten. (Am. Compl. ¶¶
while he was kept in a cell, Defendant Williamson told him he
42-47; Pls.' 56.1 Stmt. ¶ 57.) Specifically, Gilbert alleges
would be charged with a felony. (Am.Compl.¶ 73.) Plaintiff

Rowley was released the following evening. (Defs.' 56.1 9, 11 (2d Cir.1986); see also LaFond v. Gen. Physics Servs.
Stmt. ¶¶ 31-32; Pls.' 56.1 Stmt. ¶ 33.) Corp., 50 F.3d 165, 171 (2d Cir.1995). As is often stated,
“[v]iewing the evidence produced in the light most favorable
*4 A complaint was filed in the Criminal Court of the City to the nonmovant, if a rational trier could not find for the
of New York, New York County, charging plaintiff Rowley nonmovant, then there is no genuine issue of material fact and
with two misdemeanors: reckless endangerment and reckless entry of summary judgment is appropriate.” Binder v. Long
driving. (Id. at ¶ 77.) The charges were dismissed on or about Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991). Finally,
February 25, 2000. (Id. at ¶ 77.) “[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
Four written notices of claim, sworn to by the Plaintiffs, jury functions, not those of a judge.” Reeves v. Sanderson
were served upon the Defendants by personal delivery. (Id. Plumbing Prods., Inc., 530 U.S. 133, 150, 147 L.Ed.2d 105,
at ¶ 78.) Plaintiffs filed an Amended Complaint on June 29, 120 S.Ct. 2097 (2000) (quoting Anderson v. Liberty Lobby,
2000, and Defendants filed an Answer on August 3, 2000. Inc., 477 U.S. 242, 255, 91 L.Ed.2d 202, 106 S.Ct. 2505
On May 31, 2002, Defendants moved for partial summary (1986)).
judgment as to Plaintiffs' claims for false arrest, malicious
prosecution, and negligent hiring, retention and training.
Plaintiffs opposed the motion and Defendants submitted a B. Issues Raised in Reply Memorandum and Footnotes
reply memorandum of law in support of partial summary *5 As an initial matter, the Court addresses two issues raised
judgment. In a letter dated May 31, 2002, Plaintiffs argued by Plaintiffs after the instant summary judgment motion
Defendants' reply memorandum raised new arguments not was fully joined. The first pertains to Plaintiffs' claim that
raised in the motion papers and that the Court must ignore Defendants raised a new argument pertaining to qualified
those issues raised for the first time in the reply memorandum. immunity for the first time in their reply memorandum.
Defendants responded in a letter dated June 11, 2002, and (Letter from Lahav to Chambers of 5/31/02.) The second
Plaintiffs responded to Defendants' letter the same day. pertains to whether Defendants' argument for dismissal of
Plaintiffs Sudeall's and Lim's excessive force claims, was
properly raised in the footnote of Defendants' memorandum
II. DISCUSSION of law. (Id.)
A. Summary Judgment Standard This Circuit has made clear it disfavors new issues being
The principles applicable to summary judgment are familiar raised in reply papers. See Keefe v. Shalala, 71 F.3d 1060,
and well settled. Summary judgment may be granted only 1066 n. 2 (2d Cir.1995) (stating that normally the court “will
when there is no genuine issue of material fact remaining not consider arguments raised for the first time in a reply
for trial, and the moving party is entitled to judgment as brief”); Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir.1993)
a matter of law. Fed.R.Civ.P. 56(c); see also Anderson v. (stating that “[a]rguments may not be made for the first time
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Corselli in a reply brief”); Nat'l Labor Relations Bd. v. Star Color
v. Coughlin, 842 F.2d 23, 25 (2d Cir.1988). A material Plate Serv., 843 F.2d 1507, 1510 n. 3 (2d Cir.1988) (rejecting
fact is one whose resolution would “affect the outcome of a party's “attempts to raise for the first time [a new question]
the suit under governing law.” Anderson, 477 U.S. at 248; in its reply brief”); United States v. Letscher, 83 F.Supp.2d
Corselli, 842 F.2d at 25. Thus, “the plain language of Rule 367, 377 (S.D.N.Y.1999) (stating that a new argument is not
56(c) mandates the entry of summary judgment, ... against a a basis for granting summary judgment “because arguments
party who fails to make a showing sufficient to establish the raised in reply papers are not properly a basis for granting
existence of an element essential to that party's case, and on relief”); Domino Media, Inc. v. Kranis, 9 F.Supp.2d 374, 387
which that party will bear the burden of proof at trial.” Celotex (S.D.N.Y.1998) (stating that new arguments first raised in
Corp. v. Catrett, 477 U.S. 317, 322 (1986). reply papers in support of a motion for summary judgment
will not be considered”); Playboy Enters., Inc. v. Dumas, 960
As a general rule, all ambiguities and all inferences drawn F.Supp. 710, 720 (S.D.N.Y.1997) (stating that a court need
from the underlying facts must be resolved in favor of the not consider arguments made for the first time in a reply
party contesting the motion, and all uncertainty as to the brief).
existence of a genuine issue for trial must be resolved against
the moving party. See Knight v. U.S. Fire Ins. Co., 804 F.2d

Defendants characterize this prohibition on raising new issues Defendants' qualified immunity defense should have been
in reply papers as “far from an absolute rule.” (Letter raised prior to the reply papers and shall not be considered.
from Weber to Chambers of 6/11/02 at 1.) Defendants cite
McNamee v. City of New York, No. 98 Civ. 6275, 2002 WL As to an argument raised in a footnote, that Plaintiffs Sudeall
441177, 2002 U.S. Dist. LEXIS 4684, at *15 (S.D.N.Y. Mar. and Lim's excessive force claims be dismissed, this also
21, 2002), as an example of a case in which a court granted may not be properly considered. See Diesel v. Town of
a qualified immunity defense, even though it was first raised Lewisboro, 232 F.3d 92, 110 (2d Cir.2000) (stating that
in reply papers. Not only does this decision go against the “[w]e do not consider an argument mentioned only in a
weight of authority in this Circuit, but the court in McNamee footnote to be adequately raised or preserved for appellate
allowed the defense primarily because the plaintiff in that case review”) (quoting United States v. Restrepo, 986 F.2d 1462,
failed to file a response to defendant's argument or otherwise 1463 (2d Cir.1993) (holding that “[t]he enormous volume
communicate with the court for approximately six months. Id. of briefs and arguments pressed on each panel of this
at *15-16. court at every sitting precludes [the Court from] scouring
through footnotes in search of some possibly meritorious
Defendants also assert that their arguments, raised for the point that counsel did not consider of sufficient importance
first time in their reply, should be allowed because the Court to include as part of the argument”); People United for
can allow Plaintiffs to respond to any new issue by filing Children, Inc. v. City of New York, 108 F.Supp.2d 275,
a “sur-reply.” See, e.g., Lee v. Coughlin, 26 F.Supp.2d 615, 301 (S.D.N.Y.2000) (excusing plaintiff's failure to respond
617, n. 2 (S.D.N.Y.1998) (allowing plaintiff a chance to to defendant's argument in a footnote “where it might have
submit a surreply to a new issue raised in defendant's reply). been overlooked”). Accordingly, because mere mention in
However, the court in Lee granted the filing of the surreply a footnote does not amount to raising an argument and it
without explanation, and the argument raised in the surreply would be unfair to penalize Plaintiffs for failing to respond
ultimately formed no basis for the Court's decision. Id. to it, the Court also declines to address Defendants' argument
regarding Plaintiffs Sudeall's and Lim's excessive force
*6 Defendants alternatively argue that they are not raising claims.
new issues in their reply brief, that instead, they are
addressing new issues Plaintiffs raised in their opposition
papers (letter from Weber to Chambers of 6/11/02), which C. False Arrest
they assert is proper. See Bonnie & Co. Fashions v. Bankers Defendants move for summary judgment as to Plaintiffs' false
Trust Co., 945 F.Supp. 693, 708 (S.D.N.Y.1996) (stating arrest claim arguing that the police officers had probable
that “reply papers may properly address new material issues cause to arrest Plaintiffs, which is a complete defense to
raised in the opposition papers so as to avoid giving unfair the claim. (Defs.' Mem. at 5.) They argue that they had
advantage to the answering party”) (quoting Litton Indus. probable cause to arrest all four Plaintiffs for grand larceny
v. Lehman Bros. Kuhn Loeb, Inc., 767 F.Supp. 1220, 1235 auto, because the police computer showed Plaintiffs' vehicle
(S.D.N.Y.1991), rev'd on other grounds, 967 F.2d 742 as stolen, and they had probable cause to arrest Rowley
(2d Cir.1992)). Defendants contend that Plaintiff Rowley for Reckless Endangerment First Degree because of his
raised the “novel concept” that he was falsely arrested admitted acts of ramming his car backwards and forwards. 3
because Defendants should have realized that his behavior (Defs.' Mem. at 5-6.) Plaintiffs argue that Defendants lacked
was justifiable rather than reckless. (Letter from Weber probable cause to arrest the Plaintiffs, and even if there was
to Chambers of 6/11/02.) Accordingly, Defendants argue probable cause to stop Plaintiffs' car, Defendants' “seizure of
that Plaintiffs “opened the door” to the qualified immunity plaintiffs was so extreme and dangerous that it violated the
defense by calling the reasonableness of Defendants' actions Fourth Amendment.” (Pls.' Mem. Law at 5.)
into question. Id.
*7 A false arrest claim under New York law and pursuant
The Court finds this argument unpersuasive. Throughout their to a § 1983 claim, requires that a plaintiff show (1) the
Amended Complaint, Plaintiffs call the reasonableness of defendant intended to confine the plaintiff; (2) plaintiff was
Defendants' conduct into question, therefore it was not a conscious of the confinement; (3) plaintiff did not consent to
new material issue raised in opposition papers. Accordingly, the confinement; and (4) the confinement was not otherwise
privileged. Bernard v. United States, 25 F.3d 98, 102 (2d

Cir.1994); see also Covington v. City of New York, 171 F.3d give the police probable cause to investigate further, the Court
117, 122 (2d Cir.1999); Singer v. Fulton County Sheriff, 63 cannot agree with Defendants that the action they took to
F.3d 110, 118 (2d Cir.1995). investigate further was reasonable. Indeed, the precipitous
surrounding of the car by unmarked vehicles and the rapid
However, “there can be no federal civil rights claim for false approach of undercover officers with drawn guns to the
arrest where the arresting officer had probable cause.” Singer, Plaintiffs is in marked contrast to the actions of the officers in
63 F.3d at 118 (citing Bernard, 25 F.3d at 102); see also December, 1999, where the police inquiry based on the alarm
Covington, 171 F.3d at 122 (stating that “probable cause to was merely that. The officers in December prudently gave
arrest constitutes justification and is a complete defense to an Rowley an opportunity to show the car was his. Defendants'
action for false arrest”) (quoting Weyant v. Okst, 101 F.3d actions also are in marked contrast to the facts the defendants
845, 852 (2d Cir.1996)); Posr v. Court Officer Shield No. relied on Bernard, 25 F.3d 98, where there were multiple
207, 180 F.3d 409, 414 (2d Cir.1999) (same); Greenfield v. identifications of the defendant by agents and a cooperating
City of New York, 2000 U.S. Dist. LEXIS 1164, No. 99 Civ. witness prior to arrest.
2330, 2000 WL 124992 (S.D.N.Y. Feb. 3, 2000) (stating that
probable cause defeats a false arrest claim). Whether or not *8 In Colon v. City of New York, the Court of Appeals
probable cause existed “may be determinable as a matter of addressed the question of probable cause and stated:
law if there is no dispute as to the pertinent events and the Probable cause consists of such facts and
knowledge of the officers.” Weyant, 101 F.3d at 852. circumstances as would lead a reasonably
prudent person in like circumstances to
Police officers have probable cause to arrest a person when believe plaintiff guilty. A party may
they “have knowledge or reasonably trustworthy information act with probable cause even though
of facts and circumstances that are sufficient to warrant a mistaken, for a mistake of fact as to the
person of reasonable caution in the belief that the person to identity of a criminal may be consistent
be arrested has committed or is committing a crime.” Posr, with probable cause if the party acted
180 F.3d at 414 (quoting Weyant, 101 F.3d at 852); see reasonably under the circumstances in
also Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000) good faith. Conversely, the failure to
(same) (quoting Singer, 63 F.3d at 119); Golino v. City of New make a further inquiry when a reasonable
Haven, 950 F.2d 864, 870 (2d Cir.1991). person would have done so may be
evidence of lack of probable cause.
Probable cause may exist even when it is based on inaccurate
information, “so long as the arresting officer acted reasonably
and in good faith in relying on that information.” Bernard, 60 N.Y.2d 78, 82 (1983).
25 F.3d at 102 (citing Colon v. City of New York, 60 N.Y.2d
78 (1983)); see also Haussman v. Fergus, 894 F.Supp. 142, Lower state courts have addressed the question of false car
147-48 (S .D.N.Y.1995). A police officer is not required “to alarms as a basis for probable cause to arrest. In People
explore and eliminate every theoretically plausible claim of v. McElhaney, 552 N.Y.S.2d 825, 827 (N.Y.Sup.Ct.1990),
innocence before making an arrest.” Ricciuti v. NYC Transit the court held that “an arrest made in reliance on an
Authority, 124 F.3d 123, 128 (2d Cir.1997). The existence of incorrect computer-generated police report which shows that
probable cause is based upon the totality of the circumstances an automobile is stolen, because of police failure to cancel
at the time of the arrest. Bernard, 25 F.3d 98, 102 (citing the alarm, is made without probable cause.” The criminal
Illinois v. Gates, 462 U.S. 213, 230, 76 L.Ed.2d 527, 103 S.Ct. court in People v. Jones found that a three-month failure
2317 (1982). to correct or update police computer records regarding
car alarms was unreasonable and unacceptable, because “a
person, having once reported his car to be stolen and later
1. Grand Larceny Auto having it recovered by the police, would be potentially subject
Examining the totality of the circumstances here, it appears to arrest and consequent search whenever driving in his
that Defendant police officers relied solely on the admittedly automobile for the indefinite future.” 443 N.Y.S.2d 298, 304
inaccurate computer information that the car was stolen in (N.Y.Crim.Ct.1981).
arresting the four Plaintiffs for grand larceny auto. While the
Court might agree that that information, without more, would

Defendants point out that the Second Circuit has upheld judgment to a non-moving party where it appeared from the
an arrest based on a warrant later found to be improperly papers, affidavits and other proofs submitted by the parties
issued. United States v. Towne, 870 F.2d 880, 884-85 (2d that there were no disputed issues of material fact and that
Cir.1989). However, the facts of Towne are distinguishable judgment for the non-moving party would be appropriate as
from the instant case. In Towne, the court found probable a matter of law.”).
cause because the arresting officer learned of the warrant
after he conducted a background check, personally contacted The Defendants, who moved for summary judgment on
the sheriff's office of the county that issued the warrant-who Plaintiffs' false arrest claim, have had a full and fair
confirmed that the warrant was still outstanding-and after he opportunity to establish their case and have provided
asked for and received a certified copy of the warrant. Id. at no “indication that [they] might otherwise bring forward
884. Looking at all these factors, the Second Circuit agreed evidence that would affect the court's summary judgment
with the district court, which had concluded “that an officer determination.” Coach Leatherware, 933 F.2d at 167. As the
of reasonable caution would conclude that the ... charges Court has before it all the facts necessary to find for the
were still pending and therefore that probable cause existed Plaintiffs, the Court grants summary judgment in Plaintiffs'
to arrest the defendant.” Id. favor on this claim sua sponte.
The Court notes that the Supreme Court has warned of

the problems of relying on technology, stating that the 2. Reckless Endangerment First Degree
police may not rely on computer-based record keeping Defendants also argue that summary judgment should be
systems blindly and “[w]ith the benefits of more efficient law granted on Plaintiff Rowley's claim for false arrest for
enforcement mechanisms comes the burden of corresponding reckless endangerment in the first degree. Defendants argue
constitutional responsibilities.” Ariz v. Evans, 514 U.S. 1, 18 that they had sufficient probable cause to arrest Plaintiff
(1995) (O'Connor, J., concurring). for endangering the lives of the police officers by ramming
his car backwards and forwards. (Defs.' Mem. Law at 5-6.)
The Court concludes that probable cause for arrest for Plaintiff Rowley argues that his actions were reasonable,
grand larceny auto was lacking where, while the police and a justifiable response to the situation at the time, one
may have had a good faith reason to investigate further, he argues was created by the Defendants, and therefore the
their chosen techniques obliterated the Plaintiffs' chance Defendants lacked probable cause to arrest him. (Pls.' Mem.
of avoiding arrest as Plaintiff Rowley had in December, Law at 12-14.)
1999. Accordingly, summary judgment for Defendants is
denied, and furthermore, the Court finds that judgment for the A person is guilty of reckless endangerment in the first degree
“when, under circumstances evincing a depraved indifference
Plaintiffs on their false arrest and false imprisonment claim 4
to human life, he recklessly engages in conduct which creates
is granted.
a grave risk of death to another person.” NY CLS Penal §
120.25. Defendants argue that Rowley's car struck an officer
*9 It has long been the law of this Circuit that “as long
and “sent several others scrambling for their lives,” in clear
as some party has made a motion for summary judgment, a
violation of this law. (Defs' Mem. at 6.) Plaintiff argues that
court may grant summary judgment to a non-moving party,
his actions with the vehicle were in self-defense, because he
provided that party has had a full and fair opportunity to
believed he was being carjacked. (Pls.' Mem. Law at 13-14.)
meet the proposition that there is no genuine issue of material
Further, he argues that his attempt to escape was reasonable
fact to be tried.” First Financial Ins. Co. v. AllState Interior
within the statute, not reckless, which the Defendant officers
Demolition Corp., 193 F.3d 109, 115 (2d Cir.1999); see also
should have realized. (Id.)
Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162,
167 (2d Cir.1991) (noting that a district court's sua sponte
*10 Defendants argue a plaintiff may prevail only if he
granting of summary judgment in favor of a non-moving
or she can show that the officers knew that the person was
party is “an accepted method of expediting litigation,” as long
acting in self-defense, and thus was not acting recklessly.
as “the facts before the district court were fully developed
Defendants point to Lowth v. Town of Cheektowaga, 82
so that the moving party suffered no procedural prejudice”);
F.3d 563 (2d Cir.1996), where the court found that probable
Lowenschuss v. Kane, 520 F.2d 255, 261 (2d Cir.1975) (“We
cause was arguable where an officer arrested the plaintiff for
have sanctioned a sua sponte award by the court of summary
reckless endangerment for driving her car with the officer

hanging out of the vehicle window, when she clearly did not to defendants' unprovoked, hyper-aggressive and terrifying
know he was a police officer and feared he was an attacker, assault.” (Pls.' Mem. Law at 14.)
as evidenced by her shouting for help. Defendants argue that
because Plaintiff Rowley “does not allege ... that he said *11 For a claim of malicious prosecution, “a plaintiff must
anything to defendants about not having realized that they demonstrate conduct by the defendant that is tortious under
were police officers,” there is no question as to the existence state law and that results in a constitutionally cognizable
of probable cause. (Defs.' Reply Mem. at 7.) deprivation of liberty.” Kinzer v. Jackson, 316 F.3d 139, 143
(2d Cir.2003). Specifically, a plaintiff must show: (1) that
There is no dispute that the undercover officers emerged from the defendant commenced or continued a criminal proceeding
an unidentified vehicle brandishing guns, without identifying against plaintiff; (2) that the proceeding was terminated in
themselves, and that the uniformed officers were in an the plaintiff's favor; (3) an absence of probable cause for the
unmarked car that pulled up behind the Plaintiff's car, proceeding; and (4) that the proceeding was instituted with
possibly leading a reasonable person to believe he or she was malice. Id.; see also Savino v. City of New York, 331 F.3d
under attack. But no jury could find that Rowley's actions 63, 72 (2d Cir.2003). As with false arrest, probable cause
were unquestionably in self defense. Plaintiff states that as defeats a malicious prosecution claim. Boyd v. City of New
the scene unfolded, he was screaming, “like I am going York, 336 F.3d 72, 75 (2d Cir.2003). Accordingly, the Court
to die screams” (Pl. Rowley Dep at 90), but there is no will address whether there is a genuine issue of material fact
indication that Plaintiffs ever screamed “help” or gave any as to the existence of probable cause, which would defeat this
verbal indication that they were unaware the Defendants were claim.
police officers. Furthermore, Rowley aggressively rammed
his car back and forth while the police officers surrounded Defendants argue that the Court must evaluate whether
5 Defendants had probable cause to prosecute at the time
him on foot, putting them in danger. There is no reason to
think that these actions should have put the Defendant officers the prosecution was initiated. (Defs.' Mem. at 7 (citing
on notice of their error regarding the stolen car, and lead them Coleman v. City of New York, 177 F.Supp.2d 151, 158
to conclude that Rowley was acting justifiably in self-defense. (S.D.N.Y.2001)). Where, as here, a prosecution follows
a warrantless arrest, the prosecution is not considered to
Looking at the facts and all reasonable inferences flowing have been commenced before the plaintiff is arraigned
from those facts in the light most favorable to Plaintiff as this or indicted by a grand jury. See Mejia v. City of New
Court must, Plaintiff Rowley has failed to present sufficient York, 119 F.Supp.2d 232, 254 (E.D.N.Y.2000). The relevant
evidence to raise a question whether his actions were reckless. determination is “whether there was probable cause to believe
His actions as viewed by the Defendant officers at the time the criminal proceeding could succeed, and hence, should be
clearly were reckless, which leaves no doubt that Defendants commenced.” Id.
had probable cause to arrest him. Consequently, Defendants'
motion for summary judgment on Rowley's false arrest claim The Court already determined that Defendants had probable
for reckless endangerment first degree is granted. cause to arrest Plaintiff Rowley for reckless endangerment
in the first degree. However, even where probable cause
exists at the time of arrest, “evidence could later surface
D. Malicious Prosecution Claim which would eliminate that probable cause.” Kinzer v.
Defendants also move for summary judgment as to Plaintiff Jackson, 316 F.3d 139, 143-144 (2d Cir.2003) (quoting
Rowley's claim for malicious prosecution based on his being Lowth, 82 F.3d at 571 (internal quotation marks and citations
charged with reckless endangerment second degree and omitted)); see also Coleman, 177 F.Supp.2d at 158 (stating
reckless driving. (Defs .' Mem. at 7.) Defendants assert that that “[u]nder New York law, even if there was probable cause
the malicious prosecution claim is barred as a matter of to arrest an individual, that does not necessarily mean there
law because they acted on the basis of probable cause. (Id.) is probable cause to prosecute him.”). For probable cause to
Plaintiff Rowley, who conflates his arguments regarding false be eliminated, “the groundless nature of the charge must be
arrest and malicious prosecution, argues that “no reasonably made apparent by the discovery of some intervening fact.”
prudent person could believe that Mr. Rowley had committed Id.; see also Meji, 119 F.Supp.2d at 254.
the crime of reckless endangerment by responding as he did

Rowley was charged with and prosecuted for reckless Liddell v. Slocum-Dickson Med. Group, P.C., 710 N.Y.S.2d
endangerment in the second degree, in violation of N.Y. Penal 278, 278 (4th Dep't 2000). The Karoon court reasoned that
Law § 120.20, and for reckless driving, in violation of N.Y. “if the employee was not negligent, there is no basis for
Vehicle and Traffic Law § 1212. There is no indication in the imposing liability on the employer, and if the employee was
record, nor does Plaintiff allege, that any new facts emerged negligent, the employer must pay the judgment regardless of
from the point when Rowley was arrested to when he was the reasonableness of the hiring or retention or the adequacy
charged, which might serve to exculpate him. Accordingly, of the training.” 659 N.Y.S.2d at 29. While Karoon only
as Defendants had probable cause to arrest Plaintiff Rowley, refers to negligent acts by an employee, the doctrine of
and there was no intervening fact that eliminated the probable respondeat superior applies to intentional and unintentional
cause element, summary judgment is granted to Defendants torts that fall within the scope of employment. See Dykes v.
on Plaintiff Rowley's malicious prosecution claim. McRoberts Protective Agency, Inc., 680 N.Y.S.2d 513, 514
(1 st Dep't 1998) (noting that an employer may be liable under
the doctrine of respondeat superior for both intentional and
E. Negligent Hiring, Training, and Retention
negligent torts of an employee); Young Bai Choi v. D & D
*12 Finally, Defendants move for summary judgment as to
Novelties, Inc., 157 A.D.2d 777, 550 N.Y.S.2d 376, 377 (2d
Plaintiffs' claim for negligent hiring, training, and retention
Dep't 1990) (“An employer is liable, under the doctrine of
of the police officers involved in the incident. Defendants
respondeat superior, for a tort committed by his servant while
present two bases for their motion for summary judgment:
acting within the scope of his employment.... Intentional
one, that the claim is duplicative because Plaintiffs already are
torts as well as negligent acts may fall within the scope of
suing under the theory of respondeat superior, which in New
employment.”) (citing Mott v. Consumers' Ice Co., 73 N.Y.
York renders an employer liable for any torts caused by its
543, 547 (1878)); Garcia v. City of New York, 478 N.Y.S.2d
employee; and two, that the claim is barred because Plaintiffs
957, 958 (2d Dep't 1984) (stating that intentional tort by a
failed to include it in their notices of claim. (Defs.' Mem. Law
police officer may be within the scope of employment if an
at 8-9.)
officer is engaged in police business), aff'd, 493 N.Y.S.2d 127
(1985); Greenfield v.. City of New York, No. 99 Civ. 2330,
“A claim for negligent hiring or supervision can only proceed
2000 U.S. Dist. LEXIS 1164, at *34-35, 2000 WL 124992
against an employer for an employee acting outside the
(S.D.N.Y. Feb. 3, 2000); Niles v. Palmer, No. 97 Civ. 7573,
scope of her employment.” Colodney v. Continuum Health
1999 U.S. Dist. LEXIS 17759, at *40 n. 6 (S.D.N.Y. Oct. 26,
Partners, Inc., No. 03 CV 7276, 2004 U.S. Dist. LEXIS 6606,
1999).
*27, 2004 WL 829158 (S.D.N.Y. Apr. 15, 2004); Murns
v. City of New York, No. 00 Civ. 9590, 2001 U.S. Dist.
*13 Normally the question of whether a defendant employee
LEXIS 6287, *16-*17, 2001 WL 515201 (S.D.N.Y. May 16,
was acting within the scope of his or her employment depends
2001). Where an employee acts within the scope of his or her
heavily on the facts and circumstances of the particular
employment, the employer generally is held liable for all the
case, and thus is appropriate for a jury. See, e.g., Riviello v.
employees' torts under the doctrine of respondeat superior.
Waldron, 47 N .Y.2d 297, 302-03 (N.Y.1979). But where a
See Niles v. Palmer, No. 97 Civ. 7573, 1999 U.S. Dist.
defendant employer admits its employees were acting within
LEXIS 17759, *40 n. 6, 1999 WL 1419042 (S.D.N.Y. Oct.
the scope of their employment, an employer may not be
26, 1999) (holding an employer liable where “the employee
held liable for negligent hiring, training, and retention as a
acted within the scope of his or her employment such that
matter of law. See Kramer v. City of New York, No. 04 cv
the employer can be found to have ratified the tortious act”)
106, 2004 U.S. Dist. LEXIS 21914, *37, 2004 WL 2429811
(citing Dykes v. McRoberts Protective Agency, Inc., 680
(S.D.N.Y. Nov. 1, 2004) (holding that where City stated that
N.Y.S.2d 513, 514 (1st Dep't 1998) and Jonas v.. Faith
the individual defendants were employed by it on the date
Properties, Inc., 634 N.Y.S.2d 323, 325 (4th Dep't 1995)).
in question and acted within the scope of their employment,
Accordingly, under the theory of respondeat superior an
Plaintiff had no claim for negligent training and supervision
employer is liable for any damages caused by an employee's
“in light of this concession”); Griffin v. City of New York,
negligence, and “no claim may proceed against the employer
287 F.Supp.2d 392, 397-398 (S.D.N.Y.2003) (same); see
for negligent hiring or retention.” Karoon v. New York City
also Sun Min Lee v. J.B. Hunt Transp., Inc., 308 F.Supp.2d
Transit Auth., 659 N.Y.S.2d 27, 29 (1st Dep't 1997); see also
310, 313 (S.D.N.Y.2004) (holding that “where an employer
Murns, 2001 U.S. Dist. LEXIS 6287, at *16-*17; Rossetti
has admitted that the employee acted within the course and
v. Board of Educ., 716 N.Y.S.2d 460, 462 (3d Dep't 2000);

summary judgment is GRANTED to Plaintiffs on their false

scope of employment, evidence of negligent hiring, training,
arrest claims for grand larceny auto; Defendants' motion for
supervision or retention becomes unnecessary, irrelevant and
summary judgment is GRANTED on both Plaintiff Rowley's
prejudicial.”).
false arrest claim for reckless endangerment in the first
degree and Plaintiff Rowley's malicious prosecution claim;
Here, the City concedes that the Defendant police officers
and Defendants' motion for summary judgment is GRANTED
were acting within the scope of their employment. (Defs.'
on Plaintiffs' negligent hiring, training, and retention claim.
Mem. Law at 8 (“[T]he City has not denied that the
As to the surviving claim of assault and battery, the parties are
individual defendants were acting within the scope of their
to adhere to the following pre-trial submissions dates: Joint
employment.”).) Accordingly, Plaintiffs' state law claim is
Pre-Trial Statement (“JPTS”), Requests to Charge, Proposed
barred as a matter of law.
Voir Dire, and Memoranda of Law addressing those issues
raised in the JPTS, are to be filed no later than sixty days (60)
In light of Defendants' concession, summary judgment as to
from the date of this Memorandum and Order; and Responses
this claim is granted. Because the Court grants Defendants'
to the Memoranda are to be filed no later than ninety days (90)
motion for summary judgment on this claim, it does not
from the date of his Memorandum and Order. All submissions
address the question of whether or not Plaintiffs' notices of
shall be in accordance with the Court's Individual Practices.
claim were deficient.
*14 SO ORDERED.
III. CONCLUSION
For all of the previously discussed reasons, Defendants'
motion for partial summary judgment is DENIED as to all All Citations
four Plaintiffs' false arrest claims for grand larceny auto; and Not Reported in F.Supp.2d, 2005 WL 2429514
Footnotes
1 In their Amended Complaint, Plaintiffs also allege violations of 42 U.S.C. § 1981, intentional infliction of emotional distress,
and negligent infliction of emotional distress, which have since been withdrawn.
2 An “alarm” on a car signifies that the car has been reported as stolen. (Pls.' 56.1 ¶ 5.)
3 As stated in Section II, supra, Plaintiff Rowley was arrested for reckless endangerment in the first degree and
subsequently was charged and prosecuted for reckless endangerment in the second degree and for reckless driving.
4 The elements for false arrest and false imprisonment are identical in New York. See, e.g., Singer v. Fulton County Sheriff,
63 F.3d 110, 118 (2d Cir.1995) (noting false arrest and false imprisonment have the same elements); Posr v. Doherty,
944 F.2d 91, 96 (2d Cir.1991) (“In New York, the tort of false arrest is synonymous with that of false imprisonment.”).
5 The Court notes that Plaintiffs paint a portrait of Rowley as a victim of aggressive police tactics that led him to panic and
fear for his life and attempt to escape at all costs. They leave out the troubling fact that Rowley blindly rammed his car back
and forth in Union Square, and he very well might have hurt or killed the police officers involved, or innocent bystanders
who frequent this well known public square at all hours of the day and night, to say nothing of his fellow passengers.

EXHIBIT E
Royal & Sun Alliance Ins. PLC v. UPS Supply Chain..., Not Reported in...
District of Georgia. Thus, the Court turns to whether,

considering the “convenience of parties and witnesses” and
2010 WL 4967984
the “interest of justice,” a transfer is appropriate.
This decision was reviewed by West editorial District courts routinely consider the following factors in
staff and not assigned editorial enhancements. deciding whether to transfer an action to another district: (1)
the convenience of witnesses, (2) the location of relevant
United States District Court, documents and the relative ease of access to sources of
S.D. New York. proof, (3) the convenience of the parties, (4) the locus of
the operative facts, (5) the availability of process to compel
ROYAL & SUN ALLIANCE
attendance of unwilling witnesses; (6) the relative means of
INSURANCE PLC, Plaintiff, the parties; (7) a forum's familiarity with the governing law;
v. (8) the weight accorded a plaintiffs choice of forum, and (9)
UPS SUPPLY CHAIN SOLUTIONS, trial efficiency and the interests of justice based on the totality
INC. et al., Defendants. of the circumstances. Reliance Insurance Co. v. Six Star, Inc.,
155 F.Supp.2d 49, 56–57 (S.D.N.Y.2001).
No. 09 Civ. 5935(LTS)(AJP). | Dec. 1, 2010.
“There is no rigid formula for balancing these factors and no
single one of them is determinative.” Citigroup, Inc., v. City
MEMORANDUM ORDER Holding Company, 97 F.Supp.2d 549, 561 (S.D.N.Y.2000)
(citations omitted). “In performing the analysis the Court
LAURA TAYLOR SWAIN, District Judge. must, however, give due deference to the plaintiff's choice of
forum which ‘should not be disturbed unless the balance of
*1 Currently before the Court is the motion, pursuant to
convenience and justice weigh heavily in favor of defendant's
28 U.S.C. § 1404(a), of Defendant International Management
[proposed] forum.’ “ Id.; see also Iragorri v. United Techs.
Services Company, Inc. (“Defendant”) to transfer venue to
Corp., 274 F.3d 65, 71 (2d Cir.2001) (plaintiff's choice of
the Northern District of Georgia. The Court has reviewed
forum is entitled to considerable weight).
thoroughly the parties' submissions in connection with
Defendant's motion. For the following reasons, Defendant's
The Court has considered carefully the parties' arguments
motion is denied.
relating to Defendant's transfer motion as well as all of the
relevant factors. Defendant has not shown that the balance
Section 1404(a) provides that a district court may transfer an
of convenience and the interest of justice weighs heavily in
action “[f]or the convenience of parties and witnesses, in the
favor of its preferred forum. The considerations of relative
interest of justice.” 28 U.S.C. § 1404(a). The moving party
expense are at best equally balanced. The cost of having the
has the burden of establishing that transfer is appropriate.
relevant Georgia-based witnesses appear in New York for
Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d
trial is, at most, equal to the cost to Plaintiff of retaining
Cir.1978). The moving party must supply an affidavit that
new trial counsel. Defendant's list of witnesses lacks detailed
contains detailed factual statements explaining why transfer
information as to their necessity at trial and is therefore an
in the best interests of the litigation, including information on
insufficient basis upon which to grant a change of venue.
the potential principal witnesses and a statement as to their
See Orb Factory. Ltd., 6 F.Supp.2d. at 208–09. Although
testimony. See Orb Factory, Ltd. v. Design Science Toys, Ltd.,
the Court acknowledges that some of the relevant factors
6 F.Supp.2d 203, 208 (S.D.N.Y.1998).
such as the availability of process to compel attendance of
unwilling witnesses and overall trial efficiency appear to
Adjudication of a motion to transfer venue requires a two-
weigh in favor of transfer, the Court concludes that it would
pronged analysis. Courts first determine whether the action
not be in the interest of justice to transfer the case to the
could have been brought in the transferee district, Mattel, Inc.
Northern District of Georgia at this juncture given the late
v. Robarb's, Inc., 139 F.Supp.2d 487, 490 (S.D.N.Y.2001),
stage of the case. Discovery is nearly complete and prior
and, if so, whether it would be an appropriate exercise of
motion practice applying the law of the Second Circuit has
discretion to order the transfer. The parties do not dispute that
taken place in the Southern District of New York. Taken
this matter could properly have been brought in the Northern

Royal & Sun Alliance Ins. PLC v. UPS Supply Chain..., Not Reported in...
A final pre-trial conference in this matter will be held before

together, Defendant's proffers fail to overcome the deference
the undersigned on Friday, February 25, 2011, at 11:00
due to Plaintiff's choice of forum. Accordingly, Defendant's
a.m.
motion to transfer the instant case to the Northern District of
Georgia is denied.
SO ORDERED.
*2 For the foregoing reasons, Defendant's motion to transfer
is denied. This memorandum order resolves docket entry no.
All Citations
70.
Not Reported in F.Supp.2d, 2010 WL 4967984

60 DECLARATION of Helen Davis

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60 DECLARATION of Helen Davis

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Case 1:15-cv-00293-LTS-RWL Document 60 Filed 07/09/15 Page 1 of 2

UNITED STATES DISTRICT COURT

MORTGAGE RESOLUTION SERVICING,

HELEN DAVIS CHAITMAN declares under penalty of perjury pursuant to 28 U.S.C. §

1746 that the following is true and correct:

law firm of Becker & Poliakoff, LLP.

2. I submit this declaration in opposition to Defendants’ motion to transfer venue to

the United States District Court for the District of Columbia.

v. CW Capital L.L.C., 2006 WL 2572118 (S.D.N.Y. Sept. 7, 2006) (Swain, J.).

July 9, 2015 /s/ Helen Davis Chaitman_________

members of CW Capital are citizens of Massachusetts or

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

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Not Reported in F.Supp.2d, 2006 WL 2572118

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The licensing agreement gave Ceramic permission to use

FABERGE USA, INC., Plaintiff, Additionally, the agreement contains a forum-selection

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WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

sophisticated business persons, such a showing is difficult to

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[2] Limitation of Actions

[1] Limitation of Actions

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(collectively, “Defendants”), 1 alleging that Defendants

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The FDIC asserts that the Second Circuit's 2013 decision in

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the text of the CERCLA extender statute, the Waldburger

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For the foregoing reasons, Defendants' motion to dismiss the

*8 The Clerk of the Court is directed to enter judgment in

--- F.Supp.3d ----, 2015 WL 1311300, Fed. Sec. L. Rep. P

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The Court notes that the Supreme Court has warned of

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summary judgment is GRANTED to Plaintiffs on their false

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

District of Georgia. Thus, the Court turns to whether,

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A final pre-trial conference in this matter will be held before

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