Anwar v. Fairfield Greenwich Ltd.

315 F.R.D. 638, 2016 WL 1076939, 2016 U.S. Dist. LEXIS 32573
Procedural entryThis page is a short order in Anwar v. Fairfield Greenwich Ltd.. Read the opinion of the Court — 118 F. Supp. 3d 591
District Court, S.D. New York·Decided March 11, 2016·No. 09-CV-0118 (VM)·Published

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge

On August 13, 2015, this Court issued an order preliminarily approving a partial settlement of this action (“August 13 Order”) (Dkt. No. 1402), resolving claims asserted by the Representative Plaintiffs on their own behalf and on behalf of the Settlement Class (collectively, “Anwar Plaintiffs”) against Citco Fund Services (Europe) B.V., Citco (Canada) Inc., Citco Bank Nederland N.V. Dublin Branch, [639]*639Citeo Global Custody N.V., Citeo Fund Services (Bermuda Limited), The Citeo Group Limited, Brian Francoeur, and Ian Pilgrim (collectively, “Citeo Defendants”), as embodied in the Stipulation of Settlement (“Citeo Stipulation of Settlement”). (Dkt. No. 1398.)

In the August 13 Order, the Court set a Settlement Hearing for November 20, 2015 to determine “whether the proposed partial Settlement of the Action on the terms and conditions provided for in the [Citeo Stipulation of Settlement] is fair, reasonable, and adequate to the Settlement Class and should be approved by the Court; whether a Final Judgment and Order of Dismissal with Prejudice ... as provided in Exhibit B to the [Citeo Stipulation of Settlement] should be entered herein; whether the proposed Plan of Allocation should be approved; to determine the amount of fees and expenses that should be awarded to Plaintiffs’ Counsel; and to rule upon such other matters as the Court may deem appropriate.” (Dkt. No. 1402 at 3-4.) The Court also indicated that “[a]ny request for exclusion [from the Citeo Stipulation of Settlement] must be in the form of a written, signed statement ... and received by the Claims Administrator at the address designated in the Notice on or before 35 days prior to the Settlement Hearing[.]” (Id. at 6-7.) Therefore, all requests for exclusion from the Citeo Stipulation of Settlement were due no later than October 16, 2015.

On November 20, 2015, the Court held a Settlement Hearing (see Dkt. Minute Entry for Nov. 2, 2015) and subsequently issued a Final Judgment and Order of Dismissal with Prejudice (“Final Judgment,” Dkt. No. 1457) listing the members of the Settlement Class who had requested exclusion from the Citeo Stipulation of Settlement on Exhibit 1. (Dkt. No. 1457, Ex. 1, filed under seal.) All of the exclusions were affiliated with Deminor Recovery Services (“Deminor”). (See Dkt. No. 1552 at 2, Dkt No. 1445 at 2.)

By letter dated February 18, 2016 (“Anwar Plaintiffs Letter”), the Anwar Plaintiffs requested permission to file a motion to reject eight requests for exclusion from the Final Judgment that were received by the Claims Administrator on December 28, 2015.1 (Dkt. No. 1552.) These eight requests were all affiliated with Deminor, and the Anwar Plaintiffs argue that Deminor “provided no reason or explanation for the late submissions.” (Id. at 2.) The Court instructed the Claims Administrator to respond to the An-war Plaintiffs Letter by February 23, 2016. (Id. at 3.)

On February 22, 2016, the Claims Administrator, Rust Consulting, responded to the Anwar Plaintiffs Letter and indicated that it “customarily does not take a position whether a late request for exclusion should be accepted or rejected.” (Dkt. No. 1553 at 1.) Rather, it “reports the submission of late requests to counsel and counsel addresses the appropriate treatment with the Court.” (Id.)

Rule 60(b) of the Federal Rules of Civil Procedure (“Rule 60(b)”) enumerates the reasons for which a court may relieve a party from a final judgment. See Fed. R. Civ. P. 60(b). Rule 60(b) provides an equitable remedy that “preserves a balance between serving the ends of justice and ensuring that litigation reaches an end within a finite period of time.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d Cir.1994) (internal citation and quotation marks omitted). As an equitable remedy, Rule 60(b) “confers broad discretion on the trial court to grant relief when appropriate to accomplish justice [and] it constitutes a grand reservoir of equitable power to do justice in a particular case.” Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir.1986) (internal citations and quotation marks omitted).

Although not addressed by Deminor in its letter identifying the late requests for exclusion (see Dkt. No. 1552, Ex. 2), the Court finds that subsection (1) to Rule 60(b) is the likely basis for relief. Under Rule 60(b)(1), a Court may relieve a party from [640]*640final judgment due to “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Given that Deminor had submitted several requests for exclusion prior to the deadline and did not indicate that it failed to do so for these eight investors due to its own mistake, inadvertence, or surprise, the Court will analyze whether Deminor’s delay was sufficient to constitute “excusable neglect.”

Factors to be considered in evaluating excusable neglect include “[1] the danger of prejudice to the [non-movant], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith,” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir.2003) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). Based on the above factors, the Court is not persuaded that De-minor and the eight investors now requesting exclusion have demonstrated excusable neglect under Rule 60(b)(1).

First, “failure to follow the clear dictates of a court rule will generally not constitute such excusable neglect.” Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir.1997). Here, the deadline for members of the Settlement Class to opt out of the Citco Stipulation of Settlement was “clear and unambiguous.” In re Glob. Crossing, Ltd. Sec. Litig., No. 02 CIV, 910, 2004 WL 2584874, at *2 (S.D.N.Y. Nov. 12, 2004). As in In re Global Crossing, Ltd. Securities Litigation, the deadline was not set by a general court rule but rather by a specific order in this case, the August 13 Order, which directed members of the Settlement Class “to take action by a particular date, and specifying the consequences that would ensue from failing to do so.” Id.

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Anwar v. Fairfield Greenwich Ltd., 315 F.R.D. 638, 2016 WL 1076939, 2016 U.S. Dist. LEXIS 32573 (S.D.N.Y. 2016).

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