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Amato v. KPMG LLP

July 13, 2007

PETER AMATO, ET AL., PLAINTIFFS,
v.
KPMG LLP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Jones

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before this Court is a Motion for Reconsideration ("the Motion"), filed by all Plaintiffs*fn1 to the above-captioned action on May 17, 2007. (Rec. Doc. 108). For the reasons that follow, the Motion shall be denied.

FACTUAL BACKGROUND/PROCEDURAL HISTORY:

The factual background and procedural history of this case was thoroughly set forth in our June 13, 2006, August 14, 2006, and May 14, 2007 Orders (docs. 84, 91, 107) and is well known to the parties. The following brief recitation*fn2 of that history is sufficient for the purpose of reviewing the pending Motion.

On or about October 28, 2005, Plaintiffs filed a Complaint against Defendants*fn3 in the Court of Common Pleas of Luzerne County, Pennsylvania, alleging various misconduct relating to Plaintiffs' participation in an investment strategy known as Offshore Portfolio Investment Strategy ("OPIS"). By stipulation of the parties, the time for Defendants to respond to Plaintiffs' Complaint was extended to January 6, 2006. On January 6, 2006, Deutsche Bank AG and Deutsche Bank Securities, Inc. (collectively, "Deutsche Bank Defendants"), with the consent of all Defendants, removed the action to this Court.

Plaintiffs' Complaint alleges that in 1998 they realized a significant capital gain from the sale of certain companies, including Keystone Automotive Warehouse. (Rec. Doc. 1, ¶¶ 22-25). Plaintiffs are individuals who hoped to avoid tax liability by investing in a tax-advantaged investment strategy, OPIS, that was allegedly marketed to them by KPMG. Id. ¶¶ 25, 47, 48. Plaintiffs allege that they participated in the OPIS strategy after meeting with a representative of KPMG, who advised them that they could recognize significant tax benefits through their participation in OPIS. Id. ¶ 25. Subsequently, Plaintiffs claimed substantial tax losses on their tax returns. Id. ¶ 13. Plaintiffs allege that the IRS and the Commonwealth of Pennsylvania later challenged such losses. Id. ¶¶ 32, 99-101.

In our June 13, 2006 Order, we denied Plaintiffs' Motion to Remand for Lack of Subject Matter Jurisdiction (doc. 23); granted in part and denied in part Motions to Compel Arbitration and Stay All Proceedings, or, Alternatively, for an Extension of Time to Respond to Plaintiffs' Complaint filed by Defendant KPMG (doc. 7) and Defendant Deutsche Bank (doc. 10); and we granted in part and denied in part Presidio Defendants' Motion to Stay Proceedings Pending Arbitration, or, Alternatively, for Additional Time to Respond to Complaint (doc. 8). In our June 13, 2006 Order, we also granted in part and denied in part Sidley Austin's Motion to Dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (doc. 9).*fn4

On July 7, 2006, Plaintiffs filed a Motion to Amend our June 13, 2006 Order to Certify for Interlocutory Appeal, and for a Stay ("Motion to Certify") (doc. 86), which was directed at our June 13, 2006 (doc. 84) denial of Plaintiffs' Motion to Remand for Lack of Subject Matter Jurisdiction (doc. 23). After the aforesaid Motion had been fully briefed, but prior to our disposition thereof, Plaintiffs also filed a Motion to Lift the Stay Entered on June 13, 2006 ("Motion to Lift Stay"). (Rec. Doc. 104).

On May 14, 2007, we denied the Motion to Certify and the Motion to Lift Stay. (Rec. Doc. 107). Our summary denial of the Motion to Lift Stay prompted Plaintiffs to file, on May 17, 2007, the instant Motion for Reconsideration ("the Motion") of that portion of our May 14, 2007 Memorandum and Order which denied the Motion to Lift Stay. (Rec. Doc. 108). As the pending Motion has been fully briefed, it is ripe for our disposition.

STANDARD OF REVIEW:

Motions for reconsideration should be granted sparingly as federal courts have a strong interest in the finality of judgments. Burger King Corp. v. New England Hood & Duct Cleaning Co., 2000 U.S. Dist. LEXIS 1022, at *2 (E.D. Pa. 2000). "The purpose of a motion for reconsideration . . . is to correct manifest errors of law or fact or to present newly discovered evidence." Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986)). "Accordingly, a judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Id. (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).

DISCUSSION:

In the pending Motion (doc. 108), Plaintiffs seek reconsideration of that portion of our May 14, 2007 Memorandum and Order (doc. 107) which denied their Motion to Lift Stay (doc. 104). In support of the instant Motion, Plaintiffs assert that reconsideration of our May 14, 2007 decision is appropriate because it appears to have been grounded in misapprehension of the relevant facts and applicable law. (See Rec. Docs. 109, 114). Specifically, Plaintiffs argue: 1) "The Court . . . may erroneously have concluded that Mr. Chebalo has intentionally delayed [arbitration] proceedings when this is not the case;" and 2) "[T]he Court may have overlooked critical legal authorities, thus misapprehending applicable law, which may also be a proper basis for reconsideration." (Rec. Doc. 109 at 2-3). With respect to their first argument, Plaintiffs contend that despite Mr. Chebalo's request that JAMS not set a hearing date, Deutsche Bank Defendants' failure to pay the filing fee is the true reason that arbitration proceedings have not even advanced to the point at which such a ...


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