Raquan Falls v. Detective Michael Pitt, Police Officer Carlos Canario, Police Officer Andres Arestin, Police Officer Jonathan Saintiche, Police Officer John Perez, Police Officer Carlos Mendez, Sergeant William Anderson, and Nurse Practitioner Hillary Durbin-French

• Court: District Court, S.D. New York
• Decided: January 8, 2026
• Docket: 7:16-cv-08863
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------X RAIQUAN FALLS,

Plaintiff, DECISION AND ORDER

-against- 16 Civ. 8863 (AEK)

DETECTIVE MICHAEL PITT, POLICE OFFICER CARLOS CANARIO, POLICE OFFICER ANDRES ARESTIN, POLICE OFFICER JONATHAN SAINTICHE, POLICE OFFICER JOHN PEREZ, POLICE OFFICER CARLOS MENDEZ, SERGEANT WILLIAM ANDERSON, and NURSE PRACTITIONER HILLARY DURBIN-FRENCH,

Defendants. -----------------------------------------------------------------------X THE HONORABLE ANDREW E. KRAUSE, U.S.M.J. Currently before the Court is Plaintiff’s motion for reconsideration of the portion of the March 26, 2021 Opinion & Order issued by the Honorable Kenneth M. Karas, see ECF No. 216 (“SJ Op.”), that granted summary judgment to Defendants Pitt and Canario on Plaintiff’s claim of an unreasonable search (Count 15), see ECF No. 326 (Plaintiff’s motion).1 In his memorandum of law in support of the motion, Plaintiff “requests that the Court reconsider its ruling that granted qualified immunity to defendants Carlos Canario and Michael Pitt relating to their fabrication of statements that Mr. Falls allegedly told Canario ‘that he was secreting more drugs inside his body,’” adding that the alleged fabrication “led to the issuance of the search warrant by a state court judge authorizing the manual body cavity search . . . ultimately performed by defendant Hillary Durbin-French at St. Luke’s Hospital[.]” ECF No. 328 (“Pl.’s

1 In January 2025, the parties consented to proceed before the undersigned for all purposes pursuant to 28 U.S.C. § 636(c). See ECF Nos. 320, 321. Accordingly, references to “the Court” in this Decision and Order may refer to either Judge Karas or to the undersigned. Mem.”) at 1. The “Police Defendants” (Detective Michael Pitt, Police Officer Carlos Canario, Police Officer Andres Arestin, Police Officer Jonathan Saintiche, Police Officer John Perez, Police Officer Carlos Mendez, and Sergeant William Anderson) oppose the motion. ECF No. 337.

I. Legal Standard Plaintiff seeks reconsideration pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Rule 54(b) states that “any order or other decision . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). “However, the interests of finality serve to severely restrict the circumstances in which courts may revise judgments that adjudicate a claim or determine the rights and liabilities of the parties.” Dill v. JPMorgan Chase Bank, N.A., No. 19-cv-10947 (KPF), 2021 WL 3406192, at *10 (S.D.N.Y. Aug. 4, 2021) (cleaned up).2 “In this Circuit, decisions under Rule 54(b) are treated as law of the case, which gives a district court discretion

to revisit earlier rulings in the same case, subject to the caveat that where litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.” Id. (cleaned up). “According to this doctrine, a district court may reconsider prior adjudications where to do so would not be inconsistent with the objectives of efficiency and finality.” Id. at *11 (quotation marks omitted). “Under the law of the case doctrine, when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case unless cogent and compelling reasons militate otherwise.” Id. (cleaned up). “That said, the law of the case

2 A copy of this unpublished opinion is attached to this Decision and Order. doctrine does not rigidly bind a court to its former decisions, but is only addressed to its good sense.” Id. (quotation marks omitted). “Even so, courts generally will not depart from an interlocutory decision pursuant to Rule 54(b) unless there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest

injustice.” Id. (quotation marks omitted). “Nor is Rule 54(b) a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Id. (cleaned up). II. Application In its decision on the parties’ motions for summary judgment, the Court found that the Police Defendants were entitled to qualified immunity as to Plaintiff’s claims against them in Count 15 of the Second Amended Complaint based upon their good faith reliance on the issuance of the search warrant during the evening of May 8, 2015. SJ Op. at 89-111. The Court rejected Plaintiff’s challenge to the Police Defendants’ good faith reliance on the warrant in part on the ground that Plaintiff did not provide a sufficient offer of proof, beyond his own

conclusory allegation, that the judge who issued the warrant had been knowingly and materially misled by Defendant Pitt (the officer who drafted the search warrant affidavit) as required by Franks v. Delaware, 438 U.S. 154 (1978), and Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994). See SJ Op. at 102-03.3 In his motion for reconsideration, Plaintiff asserts that “the Court overlooked two critical facts in reaching its conclusion”: (1) “[b]ecause the allegedly fabricated evidence were

3 The Court also rejected Plaintiff’s argument that the good faith exception did not apply because the warrant application was so lacking in indicia of probable cause as to render reliance upon it unreasonable. See SJ Op. at 103-11. Plaintiff does not seek reconsideration of that aspect of the summary judgment decision. statements the defendants attributed to Mr. Falls, the only way Mr. Falls could rebut the statement ‘that he was secreting more drugs inside his body’ was through his denial, particularly since Canario did not claim that anyone else was present when Mr. Falls allegedly made this statement”; and (2) Plaintiff presented “independent evidence” that “corroborated his claim of

fabrication,” namely, evidence that neither the manual body cavity search nor the subsequent x- ray examination conducted pursuant to the warrant revealed any evidence of drugs inside Plaintiff’s body. See Pl.’s Mem. at 4-5. Simply put, the Court did not overlook either of these “facts.” As to the first point, Plaintiff suggests that his own denial of having made the disputed statement should be a sufficient offer of proof to preclude summary judgment as to this claim given the particular facts and circumstances of this case. But tellingly, Plaintiff does not contend that there has been any change in the law relied upon by the Court—which “ma[kes] clear that a plaintiff’s own, uncorroborated statements do not constitute a sufficient offer of proof under Franks,” SJ Op. at 101 (collecting cases)—nor does he point to any cases that have reached contrary conclusions.

As to the second purportedly overlooked fact, there is no question that Court was well aware that no drugs were found pursuant to the manual body cavity search and subsequent x-ray performed at the hospital. Even though this was not specifically discussed in the Court’s analysis of the Police Defendants’ good faith reliance on the warrant, it was noted in multiple other places in the March 26, 2021 Opinion & Order, see SJ Op. at 13, 14, 92, and therefore does not constitute the type of “new evidence” that would warrant reconsideration of this portion of the decision pursuant to Rule 54(b). In sum, Plaintiff has not provided “cogent and compelling reasons” for the Court to revise its prior ruling, and his motion for reconsideration (ECF No. 326) is DENIED. * * * * * * According to the New York State Department of Corrections and Community Supervision website, Plaintiff is currently housed at Attica Correctional Facility. See Incarcerated Lookup, Department of Corrections and Community Supervision (Raiquan Falls, DIN 24B0587) (last visited 1/8/2026) [https://perma.cc/AD6G-KFJX]. The Clerk of Court is therefore respectfully directed to update the docket to list Plaintiffs address as follows: Raiquan K. Falls DIN No. 24B0587 Attica Correctional Facility 639 Exchange Street Attica, NY 14011-0149 The Clerk of Court is further respectfully directed to mark the motion at ECF No. 326 as DENIED, and to mail a copy of this Decision and Order to the pro se Plaintiff at his updated address. Dated: January 8, 2026 White Plains, New York SO ORDERED.

ANDREW E. KRAUSE United States Magistrate Judge

2021 WL 3406192 BACKGROUND1 Only the Westlaw citation is currently available. United States District Court, S.D. New York. 1 The Court assumes familiarity with the facts of this Harold R. DILL and Edward M. Appleby, Plaintiffs, case as set forth in the July 29 Order. (Dkt. #56). v. For ease of reference, the Court refers to Plaintiffs’ opening brief in support of their motion to certify JPMORGAN CHASE BANK, N.A., Defendant. the July 29 Order for interlocutory appeal as “Pl. 19 Civ. 10947 (KPF) Cert. Br.” (Dkt. #59); Defendant's opposition brief | as “Def. Cert. Opp.” (Dkt. #67); and Plaintiffs’ Signed 08/04/2021 reply brief as “Pl. Cert. Reply” (Dkt. #70). The Court refers to Plaintiffs’ opening brief in support Attorneys and Law Firms of their motion to vacate the July 29 Order as “Pl. Vac. Br.” (Dkt. #92); Defendant's opposition brief David S. Golub, Ian Wise Sloss, Steven Lawrence Bloch, as “Def. Vac. Opp.” (Dkt. #94); and Plaintiffs’ reply Silver Golub & Teitell LLP, Stamford, CT, Leron Thumim, brief as “Pl. Vac. Reply” (Dkt. #95). Warshaw Burstein, LLP, Michael S. Devorkin, Golenbock Eiseman Assor Bell & Peskoe LLP, New York, NY, for A. The Underlying Litigation Plaintiffs. On November 26, 2019, Plaintiffs Harold R. Dill and Edward M. Appleby commenced this action with the filing Eamon Paul Joyce, Sidley Austin LLP, Kierstin S. Fowler, of their initial Complaint. (Dkt. #1). Plaintiffs asserted McDermott Will & Emery LLP, New York, NY, David S. claims against Defendant JPMorgan Chase Bank, N.A. Kanter, Washington, DC, for Defendant. for conversion, negligence, negligence per se, and unjust enrichment on behalf of themselves and various putative classes of plaintiffs. (See id.). In broad summary, Plaintiffs OPINION AND ORDER alleged that: (i) they had purchased cashier's checks from KATHERINE POLK FAILLA, District Judge: Defendant (the “Checks”), using funds from their accounts with Defendant; (ii) the Checks eventually became abandoned *1 On July 29, 2020, this Court issued an Opinion and property subject to applicable state and federal laws of Order (the “July 29 Order”) granting Defendant JPMorgan escheatment; and (iii) Defendant failed to follow the Chase Bank, N.A.’s motion to compel arbitration of the applicable escheatment laws and to provide Plaintiffs with claims of Plaintiffs Harold R. Dill and Edward M. Appleby proper notice that the Checks had been deemed abandoned. and staying this action as to those Plaintiffs pending the (See id.). outcome of arbitration. The Court's decision to stay the action, implemented in accordance with Second Circuit precedent, On January 31, 2020, Defendant filed a motion to compel effectively prevented the parties from appealing the July arbitration of Plaintiffs’ claims pursuant to the Federal 29 Order. Plaintiffs now move, pursuant to 28 U.S.C. § Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”), and to stay 1292(b), for certification of an interlocutory appeal of the this case pending the outcome of that arbitration. (Dkt. #18). July 29 Order. They separately move to vacate the July In particular, Defendant argued that Plaintiffs’ claims were 29 Order pursuant to Rule 54(b) of the Federal Rules of governed by the arbitration provision of Defendant's Account Civil Procedure, citing the Second Circuit's recent decision Rules & Regulations (the “Deposit Account Agreement,” or in Cooper v. Ruane Cunnif & Goldfarb Inc., 990 F.3d 173 “DAA”). (See id.). Plaintiffs opposed the motion on April 27, (2d Cir. 2021) (“Ruane”). For the reasons set forth in the 2020, arguing that the parties’ dispute fell outside the scope remainder of this Opinion, the Court denies both of Plaintiffs’ of the DAA's arbitration provision. (Dkt. #35). The motion motions. became fully briefed and ripe for review when Defendant filed its reply brief on May 26, 2020. (Dkt. #37). to compel arbitration, the Court granted Plaintiffs’ motion to (observing that “we traditionally counsel that courts should add Kari Garber as a party plaintiff and Defendant's cross- stay litigation pending arbitration to avoid ‘convert[ing] motion for an extension of time to file its responsive pleading. an otherwise-unappealable interlocutory stay order into an (Dkt. #54). Plaintiffs’ Amended Complaint was filed on July appealable final dismissal order’ thus ‘enabl[ing] parties to 6, 2020. (Dkt. #55). proceed to arbitration directly’ ” (quoting Katz v. Cellco P'Ship, 794 F.3d 341, 345, 346 (2d Cir. 2015) (alterations in Dylan 140 LLC)). B. The July 29 Order The July 29 Order granted Defendant's motion to compel arbitration of Plaintiffs’ claims and stayed the action pending C. Subsequent Motion Practice resolution of the arbitration. Dill v. JPMorgan Chase Bank, On September 1, 2020, Plaintiffs moved to certify the July N.A., No. 19 Civ. 10947 (KPF), 2020 WL 4345755 (S.D.N.Y. 29 Order for interlocutory appeal. (Dkt. #58-59). The Court July 29, 2020). On the threshold issue of arbitrability, approved the parties’ proposed briefing schedule (Dkt. #63), the Court found that the DAA's arbitration provision was pursuant to which Defendant's opposition brief was filed on “indisputably broad” and created a strong presumption of September 22, 2020 (Dkt. #67), and Plaintiffs’ reply brief was arbitrability. Id. at *5-6. The Court then turned to Plaintiffs’ filed on October 9, 2020 (Dkt. #70). Defendant subsequently allegations in the instant suit and concluded that they fell filed a letter regarding cases brought by Plaintiffs’ counsel in within the scope of the DAA's arbitration provision. Id. at state courts in California and Illinois, in further opposition to *6-8. Plaintiffs’ motion, on January 8, 2021. (Dkt. #81). Plaintiffs responded to Defendant's letter on January 11, 2021 (Dkt. In reaching this conclusion, the Court considered several #84), and the Court issued a memorandum endorsement on decisions — both in-Circuit and out-of-Circuit — proffered January 14, 2021, indicating that it considered briefing on the by Plaintiffs in support of their arguments that the claims were issue to be closed (Dkt. #86). Accordingly, the motion for not covered by the DAA's arbitration provision. Dill, 2020 certification of the July 29 Order for interlocutory appeal is WL 4345755, at *7-8. First, the Court addressed Plaintiffs’ fully briefed and ripe for review. argument that their claims arose from “Defendant's failure to abide by its obligations under various escheatment laws,” *3 Separately, on September 15, 2020, Plaintiffs filed a rather than “Defendant's conduct in relation to Plaintiffs’ Second Amended Complaint that added Laura Stanczyk acquisition of the Checks.” Id. at *7. The Court found as a party plaintiff. (Dkt. #64). Defendant subsequently this to be a distinction without a difference, as the DAA filed a motion to dismiss the Second Amended Complaint arbitration provision did not limit itself to “claims challenging on November 5, 2020. (Dkt. #73-76). On December 10, the lawfulness of cashier's check transactions,” but instead 2020, Kari Garber and Laura Stanczyk voluntarily dismissed covered “any dispute relating in any way” to Plaintiffs’ their claims (Dkt. #80), and the Court subsequently denied accounts or transactions. Id. (citation omitted). Second, the Defendant's motion to dismiss as moot (Dkt. #87). Court reviewed four cases relied upon by Plaintiffs in support of the argument that the Court should consider whether the Shortly after issuance of the Ruane decision, on March dispute at issue was “foreseeable” at the time of contracting. 12, 2021, Plaintiffs moved to vacate the July 29 Order in Id. at *7-8. The Court determined that only one of these light of the new decision. (Dkt. #91-92). Defendant filed an cases was from this Circuit and could thus “stand as binding opposition brief on March 26, 2021 (Dkt. #94), and briefing authority”; even as to that case, the Court found that it was completed with the submission of Plaintiffs’ reply brief neither stood for the proposition that “a claim must have been on April 2, 2021 (Dkt. #95). foreseeable at the time of forming the arbitration agreement” nor was factually applicable to the agreement and claims at issue in this matter. Id. DISCUSSION The Court proceeded to stay the action as to Plaintiffs Dill A. Plaintiffs’ Motion to Certify the July 29 Order for and Appleby pending arbitration, and directed Defendant to Interlocutory Appeal respond to Kari Garber's claims. Dill, 2020 WL 4345755, at may not be taken from an interlocutory order ... granting a petition for an interlocutory appeal: stay of any action under section 3 of this title,” 9 U.S.C. If a party cannot petition for appeal unless § 16(b)(1), or “compelling arbitration under section 206 the district court first enters an order granting of this title,” id. § 16(b)(3); see Katz, 794 F.3d at 346 permission to do so or stating that the (“[T]he FAA explicitly denies the right to an immediate necessary conditions are met, the district court appeal from an interlocutory order that compels arbitration may amend its order, either on its own or in or stays proceedings.”). The Second Circuit has recognized response to a party's motion to include the that this provision “furthers [the FAA's] aim of eliminating required permission or statement. barriers to arbitration by promoting appeals from orders Fed. R. App. P. 5(a)(3). barring arbitration and limiting appeals from orders directing *4 “It is a basic tenet of federal law to delay appellate arbitration.” Ermenegildo Zegna Corp. v. Zegna, 133 F.3d review until a final judgment has been entered.” Koehler v. 177, 180 (2d Cir. 1998) (internal quotation marks and brackets Bank of Berm. LTD, 101 F.3d 863, 865 (2d Cir. 1996). In omitted). that regard, “federal practice strongly disfavors discretionary interlocutory appeals [as they] prolong judicial proceedings, Section 16(b) explicitly permits appellate review of orders add delay and expense to litigants, burden appellate courts, that a district court certifies for interlocutory appeal pursuant and present issues for decisions on uncertain and incomplete to 28 U.S.C. § 1292(b). See 9 U.S.C. § 16(b) (“Except as records, tending to weaken the precedential value of judicial otherwise provided in section 1292(b) of title 28, an appeal opinions.” SEC v. Straub, No. 11 Civ. 9645 (RJS), 2013 may not be taken from an interlocutory order....”); 28 U.S.C. WL 4399042, at *2 (S.D.N.Y. Aug. 5, 2013) (alteration § 1292(b) (noting that, upon certification of an interlocutory in Straub) (quoting In re World Trade Ctr. Disaster Site appeal from the district court, the relevant Court of Appeals Litig., 469 F. Supp. 2d 134, 144 (S.D.N.Y. 2007)); see also may, “in its discretion, permit an appeal to be taken from Glatt v. Fox Searchlight Pictures, Inc., No. 11 Civ. 6784 such order” (emphasis added)); see generally Accenture LLP (WHP), 2013 WL 5405696, at *1 (S.D.N.Y. Sept. 17, 2013) v. Spreng, 647 F.3d 72, 74-75 (2d Cir. 2011) (concluding (“Interlocutory appeals are strongly disfavored in federal that the Second Circuit lacked jurisdiction to review an order practice.” (internal quotation marks and citation omitted)). refusing to enjoin arbitration that the district court had not The Second Circuit has further emphasized that Section certified for immediate interlocutory review). Under Section 1292(b) certification should be “strictly limited because ‘only 1292(b), a district court may certify an order for interlocutory exceptional circumstances [will] justify a departure from the appeal when it is “of the opinion that such order [i] involves a basic policy of postponing appellate review until after the controlling question of law [ii] as to which there is substantial entry of a final judgment.’ ” In re Flor, 79 F.3d 281, 284 (2d ground for difference of opinion and [iii] that an immediate Cir. 1996) (alteration in Flor) (quoting Klinghoffer, 921 F.2d appeal from the order may materially advance the ultimate at 25). “[E]ven where the three legislative criteria of Section termination of the litigation.” 28 U.S.C. § 1292(b); see also [ ] 1292(b) appear to be met, district courts retain unfettered Casey v. Long Island R.R. Co., 406 F.3d 142, 145-46 (2d discretion to deny certification if other factors counsel against Cir. 2005).2 The Second Circuit has warned, however, that it.” In re Facebook, Inc., IPO Secs. & Derivative Litig., 986 Section 1292(b) must be strictly construed, because “the F. Supp. 2d 524, 530 (S.D.N.Y. 2014) (citation and internal power to grant an interlocutory appeal must be strictly limited quotation marks omitted); accord Commerzbank AG v. U.S. to the precise conditions stated in the law.” Klinghoffer v. Bank Nat'l Ass'n, No. 16 Civ. 4569 (WHP), 2021 WL 603045, S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (internal at *6 (S.D.N.Y. Feb. 16, 2021). quotation marks and brackets omitted). The movant bears the burden of demonstrating that all three of the substantive criteria are met. See Casey, 406 F.3d at 146 (“[Section 2. Application 1292(b)], by its terms, thus imposes both procedural and Plaintiffs seek to appeal the Court's ruling on the arbitrability substantive requirements on a would-be appellant.”). of their claims. As discussed further below, Plaintiffs have not demonstrated that the July 29 Order meets the statutory 2 Federal Rule of Appellate Procedure 5(a)(3) requirements for certification for interlocutory appeal.3 provides the avenue by which a district court may the requirements of Section 1292(b), Defendant that the reviewing court could decide quickly and cleanly maintains that Plaintiffs’ delay in pursuing without having to study the record.’ ” In re A2P SMS Antitrust interlocutory appeal provides a separate basis for Litig., No. 12 Civ. 2656 (AJN), 2015 WL 876456, at *4 denial of their motion. (Def. Cert. Opp. 21 n.5). (S.D.N.Y. Mar. 2, 2015) (internal quotation marks omitted) In support, Defendant refers the Court to cases (quoting Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. in which the parties’ delays ranged between two 2d 537, 551 (S.D.N.Y. 2013)), leave to appeal withdrawn, No. months to nine-and-a-half months. (Id. (citing 15-768, Dkt. #16 (2d Cir. Apr. 3, 2015). Acumen re Mgmt. Corp. v. Gen. Sec. Nat'l Ins. Co., No. 09 Civ. 1796 (GBD), 2016 WL 950955, at *4 *5 Plaintiffs argue that the Court's decision on the (S.D.N.Y. Mar. 7, 2016) (nine-and-a-half months); arbitrability of their claims would have “a significant effect Lidle v. Cirrus Design Corp., No. 08 Civ. 1253 on the conduct of [this] action.” (Pl. Cert. Br. 7). They express (BSJ), 2010 WL 4345733, at *2 (S.D.N.Y. Oct. 29, concern that should either of them appeal an unfavorable 2010) (two months); Kaye v. Amicus Mediation & arbitration decision to this Court, and then the Second Circuit, “all” prior arbitration awards would be at risk of being Arb. Group, Inc., No. 3:13 Civ. 347 (JCH), 2014 vacated in the event the Second Circuit reaches a different WL 12755000, at *1 (D. Conn. Oct. 29, 2014) conclusion on the issue of arbitrability. (Id. at 7-8). As the (five months))). In contrast, Plaintiffs moved for parties are well aware, this Court has previously found that the certification 34 days after the Court's issuance of potential for reversal of an order granting a motion to compel its July 29 Order. Particularly given that “Rule 5(a) arbitration does not raise a “controlling question of law,” of the Federal Rules of Appellate Procedure does and it again reaches that conclusion here for substantially not specify a time limit for seeking certification under section 1292(b),” Kaye, 2014 WL 1275500, the same reasons. See Murray v. UBS Secs., LLC, No. 12 at *1, the Court declines to deny Plaintiffs’ motion Civ. 5914 (KPF), 2014 WL 1316472, at *4 (S.D.N.Y. Apr. merely on the basis of untimeliness and will 1, 2014). In Murray, the Court recognized that reversal of consider the merits of Plaintiffs’ arguments. Cf. its decision “could affect the ‘conduct’ of the action by eliminating the arbitration,” but it nonetheless determined that Lidle, 2010 WL 4345733, at *2 (declining to “such a consequence is not sufficient to warrant certification.” treat two-month delay as “dispositive” and instead Id. (collecting cases). treating it “as one of several factors weighing against certification” (citation omitted)). Plaintiffs’ discussion of a later decision from a sister court in this District, In re A2P SMS Antitrust Litigation, 2015 a. The July 29 Order Did Not Involve WL 876456, does not compel a different finding. (See Pl. a Controlling Question of Law Cert. Br. 7-8). In that decision, the district court was asked to certify for appeal its ruling that whether claims could be As noted above, the Court may only certify the July 29 Order brought as a class or on an individual basis was an issue for for interlocutory appeal if the Order “involves a controlling the arbitrator to resolve. See 2015 WL 876456, at *1. The question of law.” 28 U.S.C. § 1292(b). “[A] question of court itself observed that “unlike Murray and the cases cited law is ‘controlling’ if reversal of the district court's order therein, the issue presented for certification does not address would terminate the action.” Klinghoffer, 921 F.2d at 24. the availability of arbitration, and, at this stage, neither party When making this determination, a district court must also is seeking to avoid arbitration.” Id. at *6. Rather, the question consider whether “reversal of the district court's opinion, at issue “[was] what form that arbitration will take and, more even though not resulting in dismissal, could significantly immediately, who must make that determination.” Id. Given affect the conduct of the action; or, the certified issue that the resolution of this question would have “materially has precedential value for a large number of cases.” Dev. affect[ed] the course of the remainder of the litigation,” the Specialists, Inc. v. Akin Gump Strauss Hauer & Feld LLP, No. district court in A2P deemed the controlling question of law 11 Civ. 5994 (CM), 2012 WL 2952929, at *4 (S.D.N.Y. July factor to be satisfied, albeit “certainly a close call.” Id. at 18, 2012) (quoting Peters v. Jinkosolar Holding Co., Ltd., *5. Here, there is no such close call, as the question at issue No. 11 Civ. 7133 (JPO), 2012 WL 946875, at *14 (S.D.N.Y. is more akin to that confronted by the Court in Murray: As Mar. 19, 2012)). Moreover, “the question of law certified on in Murray, the July 29 Order addresses the availability of and reversal of the order “would not terminate the action, the case, and were not subject to the DAA's but rather would return the action to this Court.” 2014 WL arbitration provision. (Def. Cert. Opp. 10 & n.3). 1316472, at *4. Since the motion was briefed, Garber and Stanczyk have voluntarily dismissed their claims without Plaintiffs raise the related concern that should they not seek prejudice. (See Dkt. #80). Nonetheless, despite to appeal the arbitration decision, other similarly-situated Garber's and Stanczyk's decision to dismiss their putative plaintiffs will be deprived of the opportunity to claims, other party plaintiffs may still join the case. participate in the class action. (Pl. Cert. Br. 8). In support, they And in any event, for the reasons discussed above, cite to a decision from the Northern District of California, Plaintiffs’ arguments regarding the putative class in which the trial court found that its order compelling members’ rights do not establish any controlling arbitration raised a controlling question of law, because question of law. enforcement of the arbitration agreement “bar[red] Plaintiffs Relatedly, following the close of briefing, from proceeding with the class action that they sought in Defendant submitted a letter informing the Court their complaint.” See Lee v. Postmates Inc., No. 18 Civ. 3421 that Plaintiffs’ counsel represents a relator in at (JCS), 2019 WL 1864442, at *3 (N.D. Cal. Apr. 25, 2019); least two cases brought under the False Claims see also id. (“If Plaintiffs were required to proceed without Act, 31 U.S.C. §§ 3729-3733, in California an appeal and prevailed in their individual arbitrations, and Illinois. (Dkt. #81 (discussing California whatever rights absent class members might have to a judicial ex rel. Elder v. J.P. Morgan Chase, N.A., No. resolution of their claims — if this Court's interpretation of CGC-19-579144 (Cal. Super. Ct.); Illinois ex rel. the FAA is incorrect — might never be vindicated.”). Lee is Elder v. J.P. Morgan Chase Bank, N.A., No. 21 not binding precedent, and indeed is far from instructive in Civ. 85 (N.D. Ill.)). The Court understands that this case, given that the Second Circuit has had little difficulty these cases arise from conduct similar to what finding individual plaintiffs to be barred from proceeding has been alleged in this matter, and seek recovery with class actions in analogous contexts. See Martens v. of the same funds sought by Plaintiffs and Thomann, 273 F.3d 159, 183 (2d Cir. 2001) (in class action, putative class members. Defendant argues that observing that “[i]f the district court had determined that the existence of these cases undercuts Plaintiffs’ the individual plaintiffs’ claims were subject to valid and argument that judicial involvement is needed enforceable arbitration agreements and compelled arbitration, to protect the rights of putative class members. the individual plaintiffs could not have immediately appealed (Id. at 2). Plaintiffs respond, inter alia, that that decision”). Moreover, even in the class action context, the False Claims Act cases relate to a subset “courts in this Circuit have denied motions for certification of the conduct alleged in the instant case, and where reversals of the orders at issue would have allowed that those cases will not address the interests the [classes] to forgo arbitration entirely.” Murray, 2014 of proposed class members who reside in states WL 1316472, at *4 (citing Levitt v. Lipper Holdings, other than California and Illinois. (Dkt. #84 at 2). LLC, No. 03 Civ. 266 (RO), 2006 WL 944450, at *1 While Plaintiffs’ point is well-taken, the Court (S.D.N.Y. Apr. 12, 2006) (finding that plaintiffs pursuing recognizes that at least some members of the securities fraud class actions failed to meet the criteria of putative class may possess alternate means of Section 1292(b)); Martens v. Smith Barney, Inc., 238 F. recovery in the courts, as well as in arbitrations. Supp. 2d 596, 601-02 (S.D.N.Y. 2002) (declining to certify *6 Plaintiffs’ next argument fails for similar reasons. for interlocutory appeal an order compelling arbitration of Plaintiffs argue that reversal of the July 29 Order would have employment discrimination class action)). Given the weight a “precedential value for a large number of cases,” as it would of this in-Circuit precedent, the Court is unable to find that the affect both their claims and those of similarly situated putative July 29 Order's potential impact on putative class members class members. (Pl. Cert. Br. 9 (quoting Murray, 2014 WL provides a basis for certification.4 1316472, at *3-4)). On this point, however, Plaintiffs fail to cite cases in which courts have considered the impact 4 In its opposition brief, Defendant argues that on putative class members in conducting this inquiry. And putative class members retained their ability to the Court's understanding is that in weighing the potential in the cases before them. See Green v. City of New York, No. the DAA, which does not present a pure question of law. 05 Civ. 429 (DLI) (ETB), 2006 WL 3335051, at *2 (E.D.N.Y. (Def. Cert. Opp. 6-7). The Court agrees with Defendant Oct. 23, 2006) (observing that “defendants make no claim that that its July 29 Order does not present a pure question of reversal would have any precedential value” where “even if law that a reviewing court could decide without studying successful, they would only terminate the action with respect the record. Rather, certification of the issue of arbitrability to one subclass in the litigation”). Instead, courts look to the — and in particular, any requirement of contemporaneous potential impact of an appeal on other pending and future foreseeability of the issues now in dispute — would cases. Cf. Islam v. Lyft, Inc., No. 20 Civ. 3004 (RA), 2021 require the Second Circuit to “address the interpretation and WL 2651653, at *4-5 (S.D.N.Y. June 28, 2021) (noting that enforceability” of the arbitration provision, which would “if the Circuit decides to hear this appeal, it would provide mandate “an examination of the entire arbitration agreement valuable guidance to a great number of litigants and lower and potentially any evidence of the parties’ intent.” See In court judges” as the case presented “frequently litigated issues re Anderson, 550 B.R. 228, 237 (S.D.N.Y. 2016) (finding [that] have divided courts in recent years”); Merryman v. that “[s]uch an examination is not appropriate for certification Citigroup, Inc., No. 15 Civ. 9185 (CM), 2017 WL 129126, at under [Section] 1292(b)”).6 *3 (S.D.N.Y. Jan. 6, 2017) (finding that decision deferring the question of whether an action could proceed as an individual 6 Although Plaintiffs seek to rely on In re A2P or class action was unlikely to have “precedential value SMS Antitrust Litigation (see Pl. Cert. Br. 9), that for a large number of cases” because it involved “[f]act- decision is again inapposite, as the question of based determinations”). Moreover, courts in this District have “who decides — the court or the arbitrator — indicated that precedential value is “not ... per se sufficient to whether an arbitration agreement permits class meet the ‘controlling issue of law’ standard[,]” but merely “a arbitration” was “a question of law that [could] factor the Court should consider in its analysis.” SEC v. Credit be decided quickly and cleanly without having to Bancorp, Ltd., 103 F. Supp. 2d 223, 227 (S.D.N.Y. 2000) study the record.” No. 12 Civ. 2656 (AJN), 2015 (collecting cases); see also Klinghoffer, 921 F.2d at 24 (“[T]he WL 876456, at *4 (S.D.N.Y. Mar. 2, 2015). As impact that an appeal will have on other cases is a factor that discussed above, Plaintiffs here seek to certify a we may take into account in deciding whether to accept an far broader question that does require knowledge appeal that has been properly certified by the district court. of the record. But that is not the same as defining a ‘controlling question of law’ in terms of its precedential value.”); Murray, 2014 WL In their reply brief, Plaintiffs put forth a broader 1316472, at *4 (“Even if [the Order will have precedential (re)formulation of the question for which they seek value over a large number of cases], under the assumption that interlocutory appeal. (See Pl. Cert. Reply 4 (“The question because a large sector of the financial industry enters into the for appeal is the broader question ... of whether (and if so, agreements at issue, more disputes like this are bound to be how) courts should consider ‘whether the dispute at issue filed, this fact alone would not warrant certification.”).5 was foreseeable at the time of contracting.’ ” (citation and internal quotation marks omitted))). However, it remains 5 For similar reasons, the Court does not find e p v u i r d s e u n e t o f n r o a m pp e P a l l a i t n h t e i f n fs a ’ r ro b w rie i f s in su g e t o h f a t “ th th e e y ap p al l s ic o a b i i n l t i e ty n d o f t o a determinative Plaintiffs’ assertion that the Court's foreseeability test to the DAA.” (Id. at 6; see also id. at 7 decision may have precedential value to customers (“Whether, and how, this Circuit should apply a foreseeability at other banks with similar deposit account analysis ... to assess whether plaintiffs’ claims ... are covered agreements. (See Pl. Cert. Reply 11). by the DAA is a pure question of law.”)). This question In any event, the Court disagrees with Plaintiffs that the July of “the applicability of a foreseeability test to the DAA” 29 Order presents a “pure” question of law. Plaintiffs argue necessarily requires knowledge of the underlying record. that review of the Court's decisions on arbitrability would not See In re Facebook, Inc., IPO Secs. & Derivative Litig., require the appellate court “to study any significant factual 986 F. Supp. 2d at 536 (“Questions regarding application of record” beyond the parties’ briefing of the underlying motion the appropriate law to the relevant facts are generally not to compel, and that certification of the July 29 Order is suitable for certification under [Section] 1292(b).” (brackets thus appropriate. (Pl. Cert. Br. 9). Defendant responds that and citations omitted)); Merryman, 2017 WL 129126, at precedential value for a large number of cases.” (citations matter,’ a court's primary obligation in determining the omitted)). scope of an arbitration provision is to ‘enforce the parties’ reasonable expectations.’ ” Dill, 2020 WL 4345755, at *7 *7 In sum, Plaintiffs have not demonstrated that the July (alteration in Dill) (quoting Leadertex, 67 F.3d at 28-29). 29 Order raises either a controlling or a pure question of Moreover, the Court observed that even were it to “conflate law. The Court need not address the other requirements of the concepts of contracting expectations and foreseeability, Section 1292(b), see Straub, 2013 WL 4399042, at *2 (“These Leadertex is still inapposite.” Id. at *8. While in Leadertex, three criteria are ‘conjunctive, not disjunctive,’ and courts “the plaintiff's defamation claims ... were so attenuated from may only certify an interlocutory appeal where all three are the parties’ contract to provide dyeing and warehousing satisfied.” (citation omitted)), but does so in the interest of services that the parties could not have reasonably expected completeness. for the arbitration clause in their contract ... to have covered such claims[,]” in the instant matter “there is no such attenuation between the claims at issue and the DAA.” Id. (discussing Leadertex, 67 F.3d at 27-29). Thus, b. There Is Not Substantial Ground Leadertex does not create conflicting authority on the issues for Difference of Opinion Concerning Plaintiffs seek to appeal because it does not speak to any the Arbitrability of Plaintiffs’ Claims foreseeability requirement, and even had it done so, it is Plaintiffs next fail to demonstrate that the July 29 Order nonetheless distinguishable from the instant matter on the presents “substantial ground for difference of opinion.” 28 facts. Additionally, were the Court to accept that Leadertex U.S.C. § 1292(b). To do so, they must establish either that is in tension with the out-of-Circuit precedent proffered by “[i] there is conflicting authority on the issue, or [ii] the Plaintiffs, “[t]he fact that there is some level of disagreement issue is particularly difficult and of first impression for the among the courts does not mean, however, that the standards Second Circuit.” Capitol Records, LLC, 972 F. Supp. 2d at of 1292(b) are necessarily satisfied.” Credit Bancorp, Ltd., 551 (quoting In re Enron Corp., No. 06 Civ. 7828 (SAS), 2007 103 F. Supp. 2d at 227-28; cf. In re NASDAQ Mkt. Makers WL 2780394, at *1 (S.D.N.Y. Sept. 24, 2007)). The July 29 Antitrust Litig., 938 F. Supp. 232, 253 (S.D.N.Y. 1996) Order satisfies neither of these requirements. (“[T]hose opinions [from other district courts] do not control in this Circuit and do not in themselves create ‘substantial Plaintiffs argue that this Court's treatment of the in-Circuit and grounds’ for a difference of opinion.”). out-of-Circuit caselaw discussed in their underlying briefing demonstrates either that there is “substantial ground for *8 Similarly, even if the Second Circuit has not addressed difference of opinion” on the issue of foreseeability or that the issue of foreseeability, “the mere presence of a disputed the issue remains “one of first impression” in this Circuit. issue that is a question of first impression, standing alone, is (Pl. Cert. Br. 10-12). In particular, Plaintiffs contend that a insufficient to demonstrate a substantial ground for difference “fair reading” of the Second Circuit's decision in Leadertex, of opinion.” Murray, 2014 WL 1316472, at *6 (quoting In Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20 (2d re Flor, 79 F.3d at 284); see also Peters, 2012 WL 946875, Cir. 1995), would require courts to consider the foreseeability at *14. The Court must instead “analyze the strength of the of a claim in determining whether it falls within the scope arguments in opposition to the challenged ruling” and decide of an arbitration clause. (Id. at 10-11). Conversely, Plaintiffs “whether the issue for appeal is truly one on which there argue that to the extent the Court reads Leadertex differently, is a substantial ground for dispute.” In re Flor, 79 F.3d at the issue of foreseeability remains undecided in this Circuit, 284 (emphasis in original) (citation omitted). Plaintiffs do not further supporting certification of the July 29 Order. (Id.). attempt to argue that the underlying issues are difficult, and The Court rejects these efforts by Plaintiffs to concoct a legal the Court agrees that there is no basis for any such argument. dispute worthy of interlocutory appeal. Plaintiffs instead present the Court with “[m]ere conjecture that courts would disagree on the issue or that the [C]ourt was In its July 29 Order, the Court found specifically that incorrect in its holding[.]” In re Anderson, 550 B.R. at 238. Leadertex does not “stand for the proposition that a Such arguments are “not enough” to establish a substantial claim must have been foreseeable at the time of forming difference of opinion. Id.; see also Aristocrat Leisure Ltd. the arbitration agreement,” but rather “stands for the v. Deutsche Bank Trust Co. Americas, 426 F. Supp. 2d 125, decision was incorrect does not suffice to establish substantial is rendered.” 2014 WL 1316472, at *7. Given both “the ground for a difference of opinion.”). Accordingly, the second Court's confidence in its prior decision,” and “the fact that requirement for certification is not met. See Murray, 2014 certifying the issues for interlocutory appeal would only delay WL 1316472, at *7 (“Because the issues presented are not adjudication of the merits of this action in the arbitral forum,” particularly difficult (if of first impression in this Circuit), the Court did not there find that certification of its order and because Plaintiff has not pointed to a substantial split would materially advance the termination of the action. Id. among district court rulings on this issue in this Circuit, the (collecting cases). The Court concludes similarly here. second requirement for certification is not met.” (citing Salim Oleochemicals, Inc. v. M/V Shropshire, 177 F. Supp. 2d 159, Plaintiffs’ arguments regarding the need for certainty as to 162 (S.D.N.Y. 2001))).7 class certification do not compel a different conclusion. (See Pl. Cert. Br. 12).8 First, as previewed earlier, courts in this 7 As part of their efforts to cultivate substantial Circuit have declined to certify decisions compelling class ground for difference of opinion, Plaintiffs briefly arbitration. See, e.g., Levitt, 2006 WL 944450, at *1 n.3 reference the Court's rejection of their argument (denying motion for certification for immediate appeal of that the parties’ dispute falls outside the scope decision “send[ing] ... cases to arbitration and leav[ing] the question of whether putative class actions can be arbitrated of the DAA's arbitration provision as it could have arisen even if Plaintiffs had not held deposit under this arbitration clause, to the arbitrator” (quoting Levitt accounts with Defendant. (Pl. Cert. Br. 11-12). v. Lipper Holdings, LLC, No. 03 Civ. 266 (RO), 2003 WL As this argument is the focus of their motion for 21523986, at *1 n.3 (S.D.N.Y. July 7, 2003))); Smith Barney, vacatur of the July 29 Order, the Court will address 238 F. Supp. 2d at 601-02. it in further detail when it turns to that motion. But to preview, the Court does not find that any 8 Upon the dismissal of Garber's and Stanczyk's subsequent decisions by the Second Circuit on this claims, Plaintiffs informed the Court that they were issue are in tension with its July 29 Order, and thus “withdraw[ing]” their argument “that appellate do not militate in favor of a different finding on the review of the Court's ruling will help establish second Section 1292(b) factor. whether the proposed Class is limited to individuals similarly-situated to Ms. Garber and Ms. Stanczyk and thus facilitate possible settlement of this c. An Immediate Appeal Will Not Materially action.” (Dkt. #79). The Court thus does not Advance the Ultimate Termination of the Litigation address this argument in its consideration of Plaintiffs’ motion. Lastly, the Court considers whether immediate appeal will materially advance the ultimate termination of the litigation. *9 Second, Plaintiffs’ arguments regarding the need to 28 U.S.C. § 1292(b). “An immediate appeal is considered to determine the scope of the class are premature at this point advance the ultimate termination of the litigation if that appeal in the litigation, given that no class has yet been certified. promises to advance the time for trial or to shorten the time Cf. In re Zyprexa Prod. Liab. Litig., 493 F. Supp. 2d 571, required for trial.” Transp. Workers Union of Am., Local 100 580 (E.D.N.Y. 2007) (“[A]n interlocutory appeal should v. N.Y.C. Transit Auth., 358 F. Supp. 2d 347, 350 (S.D.N.Y. await a decision on the critical question of class certification 2005) (internal quotation marks and citation omitted omitted); — an issue not yet considered by the court. When that see also Peters, 2012 WL 946875, at *13. question is decided by this court, the Court of Appeals can in its discretion decide the class certification issue[.]”). In Murray, this Court found that certification of its order For this reason, Plaintiffs’ reliance upon In re Currency compelling arbitration might lead to unnecessary delays as: Conversion Fee Antitrust Litigation is unavailing, as there (i) “if the Second Circuit affirms the Court's decision, or the litigation had progressed to the class certification stage, rather yet, declines to hear Plaintiff's appeal, the result will be and the court found that an immediate appeal would allow it that this action will have been unnecessarily delayed by the “to obtain appellate guidance on the threshold issue of class interlocutory appeal,” and (ii) “it is safe to assume that the composition.” No. M 21-95 (WHP), 2005 WL 1871012, at *5 appeal process will take longer than the arbitration, thereby (S.D.N.Y. Aug. 9, 2005).9 9 Moreover, as Defendants note in their briefing 794 F.3d 341); cf. In re A2P SMS, 2015 WL 876456, at *6 (see Def. Cert. Opp. 19), the district court in In (concluding that “[p]ermitting interlocutory appeal ... [would] re Currency Conversion Fee Antitrust Litigation not undermine the federal policy favoring arbitration” where was also persuaded that immediate appeal would “the issue presented for certification does not address the promote judicial economy in light of defendants’ availability of arbitration”). “This too, militates in favor of anticipated appeal of the court's prior denial of denying [Plaintiffs’] motion.” Murray, 2014 WL 1316472, at their motions to compel arbitration and stay the *8; see also Sacchi v. Verizon Online, LLC, No. 14 Civ. 423 litigation. See No. M 21-95 (WHP), 2005 WL (RA), 2015 WL 1729796, at *4 (S.D.N.Y. Apr. 4, 2015). 1871012, at *5 (S.D.N.Y. Aug. 9, 2005). *10 In sum, as Plaintiffs have met none of the requirements Plaintiffs otherwise refer the Court to cases that have no of Section 1292(b), the Court declines to grant certification. precedential value (see Pl. Cert. Br. 14-15 (citing to cases from the Eastern District of Arkansas and the District of Colorado)), and to In re A2P SMS, which again has little B. Plaintiffs’ Motion to Vacate the July 29 Order Under bearing on today's decision (see id.). In In re A2P SMS, the Fed. R. Civ. P. 54(b)10 district court observed that regardless of whether it certified 10 Plaintiffs’ opening brief requests that the Court its order for appeal, the Second Circuit would be required to vacate the July 29 Order under either Rule 60(b) or address the “precise issue” of whether the plaintiffs’ claims Rule 54(b) of the Federal Rules of Civil Procedure. could be brought as a class or on an individual basis, “because (See Pl. Vac. Br.). However, Defendant correctly both parties have made clear that, if they are the losing observes in its opposition brief that Rule 60(b) party in the ... proceeding currently underway in arbitration, only permits a court to “relieve a party ... from a they will seek to vacate the [Award] before this Court[,]” final judgment, order, or proceeding.” (Def. Vac. and “[t]he losing party of that determination will almost Opp. 7 (emphasis in Def. Vac. Opp.) (quoting Fed. certainly appeal that decision to the Second Circuit[.]” 2015 R. Civ. P. 60(b))). “The standard test for whether WL 876456, at *5. The district court concluded that “until a judgment is ‘final’ for Rule 60(b) purposes is the question certified for interlocutory appeal is resolved[,]” whether the judgment is sufficiently ‘final’ to be “the arbitration will only proceed in fits and starts, with appealed.” In re Shengdatech, Inc. Secs. Litig., No. successive rounds of motions to vacate or confirm interim 11 Civ. 1918 (LGS), 2015 WL 3422096, at *3 arbitration awards.” Id. Here, there are no such concerns, (S.D.N.Y. May 28, 2015) (alteration and citations as Plaintiffs have not raised any questions about the scope omitted) (collecting cases). As perhaps is made of their arbitrations, and the Court thus does not expect evident by Plaintiffs’ separate motion seeking to that the arbitrations will proceed in “fits and starts” absent certify the July 29 Order for interlocutory appeal, certification of the July 29 Order. Cf. Whyte v. WeWork Cos., the July 29 Order is not a “final” judgment for the Inc., No. 20 Civ. 1800 (CM), 2020 WL 4383506, at *2 purposes of Rule 60(b). See Cohen v. UBS Fin. (S.D.N.Y. July 31, 2020) (“Plaintiff's warning that sending her Servs., Inc., No. 12 Civ. 2147 (LGS), 2014 WL to arbitration may result in her appealing from that tribunal's 240324, at *4 (S.D.N.Y. Jan. 22, 2014) (noting that decision — thus prolonging the litigation — does not mean Rule 60(b) was “inapplicable” to order granting that interlocutory review of the June 11 Order, followed by motion to compel arbitration); see also Usinor a trial somewhere (because I cannot agree that my earlier Steel Corp. v. M/V Koningsborg, No. 03 Civ. order would be overturned), would be a more efficient way of 4301 (AKH), 2004 WL 230910, at *3 (S.D.N.Y. proceeding.” (internal citations omitted)). Feb. 6, 2004). Plaintiffs appear to concede as much in their reply brief, which discusses only Finally, as in Murray, the Court finds that allowing Rule 54(b). (See Pl. Vac. Reply). Accordingly, the certification of the July 29 Order “would be inconsistent with Court understands Plaintiffs to seek the Court's the ‘national policy favoring arbitration,’ and the Second reconsideration of its July 29 Order under Rule Circuit's distaste for delaying ‘the arbitral process through 54(b). appellate review.’ ” 2014 WL 1316472, at *8 (first citing AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 345 (2011), Plaintiffs moved for this Court to vacate its July 29 Order. addressed to its good sense.” Colvin, 900 F.3d at 68 (quoting Rule 54(b) provides that courts may revise “any order or Zdanok, 327 F.2d at 952-53). Even so, courts generally will other decision ... that adjudicates fewer than all the claims not depart from an interlocutory decision pursuant to Rule or the rights and liabilities of fewer than all the parties ... at 54(b) unless there is “an intervening change of controlling any time before the entry of a judgment adjudicating all the law, the availability of new evidence, or the need to correct a claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. clear error or prevent manifest injustice.” Color Tile, 322 F.3d 54(b). However, “the interests of finality” serve to “severely at 167 (internal quotation marks and citation omitted); accord restrict [the] circumstances” in which courts may revise Colvin, 900 F.3d at 71-72. Nor is Rule 54(b) “a vehicle for judgments that “adjudicate a claim or determine the rights relitigating old issues, presenting the case under new theories, and liabilities of the parties.” Colvin v. Keen, 900 F.3d 63, securing a rehearing on the merits, or otherwise taking a 71-72 (2d Cir. 2018) (explaining that a higher standard applies ‘second bite at the apple[.]’ ” Analytical Surveys, Inc. v. Tonga to reconsideration under Rule 54(b) of a decision that would Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa be an “immediately appealable final judgment if no other Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). claims remained to be adjudicated,” than to reconsideration of a non-interlocutory decision); see also Prestige Jewelry Int'l, Inc. v. BK Jewellery HK, No. 11 Civ. 2930 (LAP), 2015 WL 2. Application 8481873, at *1 (S.D.N.Y. Oct. 14, 2015) (“[T]he Court of Plaintiffs argue that the Court should vacate the July 29 Appeals has made clear that reconsideration of prior decisions Order in light of the Second Circuit's decision in Ruane, should be the exception rather than the rule.” (discussing Off. 990 F.3d 173. (See Pl. Vac. Br.). In Ruane, the Second Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers Circuit reversed a district court order compelling arbitration, & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (“Color concluding that the parties’ dispute fell outside the scope Tile”))). of the relevant arbitration provision. 990 F.3d at 179. The Ruane plaintiff was pursuing an action under Section 502(a) In this Circuit, decisions under Rule 54(b) are (2) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(2), against the investment treat[ed] ... as law of the case, which gives a district court advisor for his employer's profit-sharing plan. Id. at 175-76. discretion to revisit earlier rulings in the same case, subject The district court concluded that the defendant could compel to the caveat that “where litigants have once battled for the plaintiff to arbitrate his ERISA fiduciary claims under the court's decision, they should neither be required, nor his employment agreement's arbitration provision, pursuant without good reason permitted, to battle for it again.” to which he agreed to arbitrate “all legal claims arising out of or relating to employment.” Id. at 178-79. The Second *11 Color Tile, 322 F.3d at 167 (quoting Zdanok v. Glidden Circuit disagreed, and instead found that the plaintiff's claims Co., 327 F.2d 944, 953 (2d Cir. 1964)); accord Colvin, 900 did not “relate to” his employment. Id. at 184. Following an F.3d at 72. “According to this doctrine, a district court may analysis of “the limits of the phrase ‘relating to employment’ reconsider prior adjudications where to do so would not be in the context of an arbitration agreement,” id. at 182-84, the inconsistent with the objectives of efficiency and finality.” Court held: “We therefore agree with the approach adopted Vicuna v. O.P. Schuman & Sons, Inc., 298 F. Supp. 3d 419, by the Ninth Circuit ... that, in the context of an employment 433 (E.D.N.Y. 2017) (citing Virgin Atl. Airways, Ltd. v. Nat'l arbitration agreement, a claim will ‘relate to’ employment Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); Tri-Star only if the merits of that claim involve facts particular Pictures, Inc. v. Leisure Time Prod., B.V., No. 88 Civ. 9127 to an individual plaintiff's own employment[,]” id. at 184 (DNE), 1992 WL 296314, at *2 (S.D.N.Y. Oct. 6, 1992)). (citing United States ex rel. Welch v. My Left Foot Children's Therapy, LLC, 871 F.3d 791, 799 (9th Cir. 2017)). Under the law of the case doctrine, “ ‘when a court has ruled on an issue, that decision should generally be adhered *12 Plaintiffs submit that Ruane requires this Court to to by that court in subsequent stages in the same case’ reconsider its determination that the parties’ dispute falls unless ‘cogent and compelling reasons militate otherwise.’ ” within the scope of the DAA's arbitration provision. (See Pl. Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (quoting Vac. Br.). To begin, Plaintiffs observe that certain out-of- United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. Circuit cases discussed in their briefing — and considered Second Circuit takes a different view of “relatedness” than did and citations omitted) (quoting Louis Dreyfus Negoce S.A. v. this Court. (Id.). Defendant unsurprisingly offers a different Blystad Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir. interpretation of Ruane, and argues that the Second Circuit 2001))). And the Court approaches with healthy skepticism (i) considered an entirely distinguishable arbitration provision any reading of Ruane as parting with longstanding federal (Def. Vac. Opp. 9-11), and (ii) merely synthesized the law policy favoring arbitration. See Moses H. Cone Mem'l Hosp. applied in the Court's July 29 Order (id. at 11-16). The Court v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (“The finds that Ruane does not compel a different finding as to the [FAA] establishes that, as a matter of federal law, any doubts scope of the DAA's arbitration provision. concerning the scope of arbitrable issues should be resolved in favor of arbitration[.]”). Indeed, in a summary order issued First, the Court disagrees with Plaintiffs that the Ruane three days prior to Ruane, the Second Circuit reaffirmed Court rejected the notion of “reliance on the presumption the principle that “broad arbitration agreements ‘create[ ] of [arbitrability] and the presence of a broad clause to a presumption of arbitrability.’ ” Harris v. TD Ameritrade, compel arbitration[.]” (Pl. Vac. Br. 9). As the Court observed Inc., 837 F. App'x 841, 842 (2d Cir. 2021) (summary order) in its July 29 Order, the Second Circuit has held that (alteration in Harris) (quoting Holick, 802 F.3d at 395); cf. “the existence of a broad agreement to arbitrate creates a DDK Hotels, LLC v. Williams-Sonoma, Inc., — F.4th —, presumption of arbitrability which is only overcome if it No. 20-2748-cv, 2021 WL 3118947, at *6 (2d Cir. July 23, may be said with positive assurance that the arbitration 2021) (“Where the question is whether a given dispute falls clause is not susceptible of an interpretation that covers the within the scope of the arbitration agreement (and is therefore asserted dispute.” Dill, 2020 WL 4345755, at *5 (quoting arbitrable), ‘[a]ny doubts concerning the scope of arbitrable Holick v. Cellular Sales of N.Y., LLC, 802 F.3d 391, 395 issues should be resolved in favor of arbitration.’ Where, by (2d Cir. 2015)). In Ruane, the Second Circuit did not contrast, the question is who should decide arbitrability, there back away from this presumption. Rather, the Court there is a presumption that the question should be resolved by the interpreted a completely different arbitration clause that (i) court.”). The Court thus stands by its initial finding that the mandated arbitration of certain specified employment-related DAA's broad arbitration provision creates a presumption of disputes, including “legal claims arising out of or relating arbitrability.11 to employment, application for employment, or termination of employment,” and (ii) “specifically excluded” from 11 As discussed in the Court's July 29 Order, the arbitration “workers’ compensation benefits, unemployment language of the DAA's arbitration provision is compensation benefits, ERISA-related benefits provided “indisputably broad.” Dill v. JPMorgan Chase under a Company sponsored benefit plan, and claims filed Bank, N.A., No. 19 Civ. 10947 (KPF), 2020 WL with the National Labor Relations Board.” 990 F.3d at 178 4345755, at *6 (S.D.N.Y. July 29, 2020). The DAA (alterations omitted). The Ruane Court did not expressly provides that “any dispute relating in any way apply the presumption of arbitrability to this narrower to your account or transactions will be resolved arbitration clause, and indeed, it was not obligated to do by binding arbitration”; that “ALL DISPUTES, so. See Ji Dong Cheng v. HSBC Bank USA, N.A., 467 EXCEPT AS STATED BELOW, MUST BE F. Supp. 3d 46, 51 (E.D.N.Y. 2020) (“Thus, when ‘[t]he RESOLVED BY BINDING ARBITRATION”; language of the clause itself is specific to disputes concerning that “[c]laims and disputes ... about your deposit [a definite subject matter], and is not a clause intended to account, transactions involving your deposit cover all disputes that might arise between the parties,’ it account, safe deposit box, and any related service may properly be characterized as narrow.” (alterations in with us are subject to arbitration”; and that “[a]ny Ji Dong Cheng) (quoting Duafala v. Globecomm Sys. Inc., claims or disputes arising from or relating to this 91 F. Supp. 3d 330, 335 (E.D.N.Y. 2015))); see also ACE agreement ... are included.” Id. Similar language Cap. Re Overseas Ltd. v. Cent. United Life Ins. Co., 307 has been construed as broad by the Second Circuit. F.3d 24, 34 (2d Cir. 2002) (“It is true that ‘[w]here the See id. (collecting cases). arbitration clause is narrow, a collateral matter will generally be ruled beyond its purview.’ But ... [w]ith [the] determination *13 Second, the Ruane Court's agreement with the Ninth [that the arbitration clause is a broad one], ‘there arises Circuit's decision in Welch, and its discussion of other out- a presumption of arbitrability’ and arbitration of even a of-Circuit cases, do not change the Court's views on the dispute. In Ruane, the Court consulted the decisions of other claims against [defendant] relates to his employment.” Id. circuits in considering how to interpret “the phrase ‘relating It also observed that non-employees could have brought to employment,’ ” as those decisions provided “helpful identical claims against the defendant that would not have insight” in determining “the limitations ... implicit to the been subject to mandatory arbitration. Id. at 183-84. phrase ‘relating to’ in the context of an employment-based arbitration agreement.” 990 F.3d at 182-84. The Court found The Court understands Plaintiffs to argue that following the Ninth Circuit's decision in Welch particularly instructive, Ruane, claims will not be “related to” the subject matter as in that matter the appellate court had considered an of an arbitration agreement where a party would not have employee arbitration clause — similar to the clause in Ruane been in a position to pursue them “but for” the existence — that encompassed “any claims,” and determined that the of the agreement. (Pl. Vac. Br. 10-11). In the first instance, clause did not cover an employee's suit brought under the the Court observes that Ruane addresses the interpretation False Claims Act (“FCA”). 871 F.3d at 798-800. The Welch of the phrase “relating to” in the context of an employment Court held that the plaintiff's FCA claims did not “arise out arbitration agreement, and consults out-of-Circuit precedent of” or “relate to” her employment for the purposes of the that interprets similar language in employment arbitration arbitration agreement, reasoning “that the subject matter of agreements. For this reason, the Court remains unconvinced an FCA claim does not implicate any facts particular to the that Ruane and the cases discussed therein establish a plaintiff's employment.” Ruane, 990 F.3d at 183 (discussing universal “test” pursuant to which arbitrability is determined Welch, 871 F.3d at 798-99). by whether a third party could bring a similar claim. See Dill, 2020 WL 4345755, at *8 n.4 (“Insofar as any of the above The Ruane Court also considered decisions from the Fifth three cases discusses the significance of a third party being and Eleventh Circuits interpreting employment arbitration able to bring similar claims, the Court reads that discussion clauses with “relating to” language “in the context of suits as an analytical shorthand for establishing directness, as seeking recovery for alleged sexual assault perpetrated by opposed to a clear test rooted in the holding of those cases”). fellow employees in employer-provided residential quarters Moreover, while the Second Circuit did find significant that during off-duty hours.” 990 F.3d at 183 (discussing Doe v. a non-employee could bring the same claims brought by Princess Cruise Lines, Ltd., 657 F.3d 1204, 1208, 1218-20 the Ruane plaintiff, this Court understands the decision — (11th Cir. 2011); Jones v. Halliburton Co., 583 F.3d 228, 230 like the Fifth, Ninth, and Eleventh Circuit decisions it cited (5th Cir. 2009)). The Court described the decisions thusly: — to address “the specific issue of how directly related [the plaintiff's claims] were to the plaintiff's status as an employee.” Id.; see Ruane, 990 F.3d at 183 (“[W]e weigh The Jones and Doe courts both heavily the consideration that none of the facts relevant to the accepted that the sexual assault merits of [the plaintiff's] claims against [defendant] relates to alleged in each case would not his employment.”). have occurred “but for” the plaintiff's employment with the defendant *14 In its July 29 Order, this Court conducted the company, but determined nonetheless appropriate inquiry into the nexus between Plaintiffs’ claims that the circumstances giving rise to and the DAA's arbitration provision, and determined that the claim were outside the scope of “Plaintiffs’ claims clearly fall within the DAA's arbitration her employment. “Relatedness” could provision because they originate from Plaintiffs’ purchases not encompass everything that touched of cashier's checks using their respective accounts with employment in any way, these courts Defendant.” Dill, 2020 WL 4345755, at *7 n.3; see also id. at posited. *7 (“[I]t is clear that, at minimum, [Plaintiffs’ claims] touch matters covered by the DAA's arbitration provision[,]” as “Plaintiffs’ claims are based on Defendant's alleged illegal handling of various cashier's checks that each individual Id. Following this discussion, the Second Circuit concluded purchased from Defendant, using funds from their respective that while the plaintiff's claims “were not perfectly accounts with Defendant.”). Even were the Court to apply the analogous” to those brought in the out-of-Circuit decisions, approach taken by Ruane in the context of an employment [Plaintiffs’] claims involve facts particular to” the subject vacatur under Rule 54(b) is denied. matter covered by the DAA's arbitration provision. See Ruane, 990 F.3d at 184.12 CONCLUSION 12 Plaintiffs maintain that following Ruane, a relevant For the reasons stated in this Opinion, Plaintiffs’ motions are query is whether “the dispute in question ... DENIED. The Clerk of Court is directed to terminate the was foreseeable at the time the parties entered motions at docket entries 58 and 91. The stay imposed by this their agreement.” (Pl. Vac. Reply 7-8 (citing Doe Court's July 29 Order remains in place pending further order v. Princess Cruise Lines, Ltd., 657 F.3d 1204, of the Court. The parties are further ORDERED to update the 1219-20 (11th Cir. 2011))). But Ruane establishes Court on or before November 5, 2021, regarding the status no such foreseeability test, and the Court does not of any arbitration. read Ruane as departing from other Second Circuit precedent consulted in its July 29 Order, namely, SO ORDERED. the decision in Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20 (2d Cir. 1995). All Citations In sum, Plaintiffs have not demonstrated any intervening Not Reported in Fed. Supp., 2021 WL 3406192 change in controlling law, and the Court sees no basis for the End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.