United States District Court, D. Connecticut
RULING ON MOTION FOR RECONSIDERATION
Michael P. Shea, U.S.D.J.
Order dated April 26, 2016 (ECF No. 97), this Court granted
Defendants’ Motion to Transfer. (ECF No. 52.) Now
pending before the Court is Plaintiff’s Motion for
Reconsideration. (ECF No. 100.) For the reasons set forth
below, reconsideration is GRANTED but the relief sought is
7(c) of the Local Rules of Civil Procedure of the District of
Connecticut authorizes motions for reconsideration.
“The standard for granting such a motion is strict, and
reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the
court overlooked-matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Motions for reconsideration may not
be used to supplement the record. Smith v. New York City
Dept. of Educ., 524 Fed.Appx. 730, at *3 (2d Cir. May 2,
2013) ("Smith also sought to supplement record, which is
inappropriate on a motion for reconsideration.").
has also submitted an affidavit dated May 9, 2016, setting
forth new evidence that it argues the Court should consider.
Specifically, Plaintiff provides a new affidavit from Allan
Roth, who recants statements he made in his earlier affidavit
submitted by Defendants in their Motion to Transfer. Mr. Roth
now alleges that Ms. Hussin pressured him into signing the
affidavit and that he did not understand Paragraph 5 of that
affidavit. (ECF No. 102 at 2.) Paragraph 5 stated that he
“never consented to . . . Lemberg Law receiving any
portion of the attorney’s fees earned by Ms. Hussin on
[his] case.” (ECF No. 54 at 14.) Mr. Roth now says that
he “assumed the fee split had already been
determined” at the time his case was handled, and that
he does “not have a problem with Lemberg Law receiving
a portion of the fees.” (ECF No. 102 at 3.)
response, Defendants argue that Mr. Roth’s recantation
is not credible. Defendants allege that there is at least one
falsehood in the affidavit: Mr. Roth states that he had no
“direct contact” with Ms. Hussin between the time
of his settlement and the creation of the affidavit. (ECF No.
102 at 2.) Ms. Hussin has provided emails and LinkedIn
messages between her and Mr. Roth during that time period.
(ECF No. 116 at 17-20.) Defendants also argue that given Mr.
Roth’s 40 year career as a Special Agent Supervisor
with the California Department of Justice and his familiarity
with the criminal justice system, it is unlikely that he
“would agree to execute an untrue declaration under
penalty of perjury.” (ECF No. 115 at 11.)
Roth’s affidavit does not provide a basis to change the
Court’s ruling on the Motion to Transfer. First,
although the new affidavit may undermine Defendants’
defense and counterclaims, it only adds to the factual
disputes between the parties and underscores the need for an
evidentiary hearing (or trial) involving witnesses who mostly
reside in California. It thus supports the conclusion in the
Court’s ruling that the case should be transferred in
part for the convenience of non-party witnesses. Mr.
Roth’s testimony will have to be heard and assessed
along with that of the other California-based clients who
submitted affidavits in support of Defendants’ motion.
The fact that his affidavit tells a different story from
their affidavits does not make it any more convenient for all
of these non-party witnesses to travel to Connecticut to
testify. As the Court’s original ruling explained, the
Southern District of California is a more convenient locale
to hear that testimony.
Mr. Roth’s new affidavit is immaterial, because the
Court would have granted Defendants’ Motion to Transfer
without his original affidavit. Defendants presented
affidavits from five other client witnesses in their Motion,
and all of them stated that they did not know that they were
contracting with Lemberg Law, let alone agreeing to a fee
split. (See ECF No. 54 at 6, 8, 10, 12, 15.) As
Defendants point out, Mr. Roth’s affidavit stated only
that he did not agree to the fee split. (ECF No. 54 at 14.)
His affidavit did not allege that he did not retain Lemberg
Law or that he was charged unlawfully, as the other client
witness affidavits did. Mr. Roth’s statements were not
essential to the Court’s decision to grant
Defendants’ Motion to Transfer, and had the affidavit
not been submitted, the decision would have remained the
same. Even without Mr. Roth, Defendants presented affidavits
from five other client witnesses who they intend to call to
testify in support of their affirmative defense that the
fee-division agreement is unlawful under California law. All
of those witnesses reside in California.
Plaintiff’s argument that Mr. Roth’s recantation
“calls into question the veracity of each and every
affidavit submitted by Hussin” is without merit. With
their response, Defendants filed three supplemental
affidavits from original client witnesses, affirming the
statements they made in the affidavits that Defendants
provided with their Motion to Transfer. (ECF No. 116 at 30,
33; ECF No. 119 at 1.)
Plaintiff’s other arguments, they do cite any
controlling decisions or data the Court overlooked in making
its ruling. See Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995). Specifically, Plaintiff has not
pointed out anything the Court overlooked in its
determination that the locus of operative facts is in
California. The Court is aware that venue in Connecticut
would be proper in this case, but as discussed in the Ruling
on Motion to Transfer, a Section 1404(a) movant need not show
that the transferor venue is improper in order to obtain a
transfer. See, e.g., Joyner v. Toatley, No.
85 Civ. 3071 (MJL), 1985 WL 3118, at *1 (S.D.N.Y. Oct. 17,
1985). These other arguments are an attempt to relitigate
issues already decided, which is improper on a motion for
reconsideration. See Analytical Surveys, Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012).
while Plaintiff argues that transferring the case to the
Southern District of California does not actually make trial
more convenient for the remaining client witnesses because
none of them reside there, the majority do reside in
California. While California is a big state with multiple
federal districts, it is undoubtedly more convenient for
these witnesses to travel within the state than to travel
across the country to Connecticut to testify.
motion for reconsideration is GRANTED but the ...