15 N.E.3d 1131
Ind. Ct. App.
2014

Lead Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED.

Plaintiff Boca Raton Firefighters and Police Pension Fund, on behalf of itself and a putative class of former shareholders of The McGraw-Hill Companies, Inc. (“McGraw-Hill”), appeals from the District Court’s September 24, 2013 order denying plaintiffs motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(2) and plaintiffs motion for leave to amend its complaint pursuant to Federal Rules of Civil Procedure 15(a) and (d). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

BACKGROUND

Plaintiff brought this putative securities fraud class action nearly seven years ago against The McGraw-Hill Companies, Inc. and two of its executive officers alleging violations of the Securities and Exchange Act of 1934. Plaintiff alleges that the company’s financial services division, Standard & Poor’s (“S & P”), made material misstatements touting the integrity, independence, and surveillance of its ratings of residential mortgage-backed securities (“RMBS”) and collateralized debt obligations (“CDOs”) when, according to plaintiff, ratings criteria were in fact driven by defendants’ desire to preservе market share, please clients, and increase profits. After nearly five years of litigation and affording plaintiff multiple opportunities to amend its complaint, the District Court dismissed plaintiffs second amended complaint for failure to state a claim pursuant to Federаl Rule of Civil Procedure 12(b)(6). Reese v. McGraw-Hill Cos., No. 08 Civ. 7202, 2012 WL 9119573 (S.D.N.Y. Mar. 30, 2012). We affirmed. See Boca Raton Firefighters & Police Pension Fund v. Bahash, 506 Fed.Appx. 32 (2d Cir.2012).

Several months after this Court affirmed the District Court’s dismissal, plaintiff filed a motion for relief from judgment and a motion for leave to amend its complaint. Plaintiff cited supposedly “newly discovered evidence” — in the form of a complaint filed by the U.S. Department of Justice against McGraw-Hill and S & P in the U.S. District Court for the Central District of California, and a previously sealed deposition transcript of S & P’s former hеad of RMBS ratings from another case — which plaintiff ‍​​​​​​​​‌​‌​​‌​​​‌​​‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌​​​​​‌​‌‌‍contends cures the defects in its second amended complaint.1 After thoroughly reviewing plaintiffs lengthy submissions, the District Court denied the motions, finding that the new evidence “would not have changed [the District] *23Court’s previous ruling and is cumulative of plaintiffs’ previous allegations in its nature and purpose, if not in all its details.” Reese v. McGraw-Hill Cos., 293 F.R.D. 617, 623 (S.D.N.Y.2013).2 This appeal followed.

DISCUSSION

We review a district court’s denial of relief from judgment for abuse of discretion. Devlin v. Transp. Commc’ns Int’l Union, 175 F.3d 121, 132 (2d Cir.1999). Rule 60(b)(2) provides that a court “may relieve a party or its legal representative from a final judgment, order, or proceeding fоr ... newly discovered evidence that, with reasonable diligence, could not have been discovered” within twenty-eight days after the entry of judgment. Fed.R.Civ.P. 60(b)(2). “A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances.” United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir.2001). The party seeking relief from judgment bears the burden of meeting the following “onerous” standard:

(1) the newly discovered evidence was of fаcts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching.

Id. at 392. “Properly applied, Rule 60(b) strikes a balance between serving ‍​​​​​​​​‌​‌​​‌​​​‌​​‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌​​​​​‌​‌‌‍the ends of justice and рreserving the finality of judgments.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986). A court abuses it discretion only when “(1) its decision rests on an error of law or a clearly erroneous factual finding; or (2) cannot be found within the range of permissible decisions.” Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir.2011) (per curiam).

After review of the record and relevant case law, we conclude that thе District Court was well within its discretion in denying plaintiffs motion for relief from judgment and motion for leave to amend for the reasons stated in its September 24, 2013 order. As the District Court found, the new evidence does not alter the District Court’s and this Court’s previous conclusion that defendants’ statements regarding the “independence” and “integrity” of their ratings constitute “mere commercial puffery.” Boca Raton, 506 Fed.Appx. at 34, 37 (citing City of Omaha, Neb. Civilian Emps.’ Ret. Sys. v. CBS Corp., 679 F.3d 64, 67 (2d Cir.2012)). Alleged new evidence showing that, for example, S & P slowed the roll out of a new ratings model that might negatively affect CDO ratings, S & P analysts discussed that CDO issuers were upset by subprime RMBS ratings downgrades, or S & P may hаve been concerned about market share and profits, does not alter the “generic, indefinite nature” of the statements at issue оr demonstrate why they are false. Id. at 37. As the District Court correctly observed, these statements are too general to cause a reasonable investor to rely ‍​​​​​​​​‌​‌​​‌​​​‌​​‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌​​​​​‌​‌‌‍upon them as a guarantee that ratings would not be made without regard to profits, market share, or client fеedback. See ECA, Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 206 (2d Cir.2009).3

*24The District Court also did not abuse its discretion in deciding that the new evidеnce fails to demonstrate with particularity why defendants’ statements regarding their surveillance practices were false. See Fed.R.Civ.P. 9(b) (requiring fraud сlaims to be “statefd] with particularity”). Alleged new evidence showing that, for example, RMBS downgrades did not result in immediate downgrades of CDOs collаt-eralized by those securities, or S & P analysts sometimes based their CDO ratings on older default rate assumptions, does not demonstrate with particularity why defendants’ statements that ratings were “reviewed regularly,” or that the surveillance process was “fully integrated,” were false. Put simply, the аlleged misstatements do not state precisely how or when S & Ps ratings would be updated, and the new evidence does not show with particularity hоw S & P’s surveillance process was inconsistent with those statements.

Because the District Court’s denial of plaintiffs motion for relief from judgment was well within its discretion, ‍​​​​​​​​‌​‌​​‌​​​‌​​‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌​​​​​‌​‌‌‍its denial of plaintiffs motion for leave to amend was likewise not an abuse of discretion.

CONCLUSION

We have considered all of plaintiffs remaining arguments and find them to be without merit. Accordingly, we AFFIRM the September 24, 2013 order of the District Court.

Notes

. We previously denied plaintiffs motion to take judicial notice of the deposition transcript during plaintiff’s prior appeal. Boca Raton, 506 Fed.Appx. at 36 n. 4.

. Plaintiff also filed a motion to file a supplemental brief with additional, recently discovered evidence, which the District Court also denied in its September 24, 2013 order. Plaintiff does not appeal the denial of that motion. Appellant’s Br. 6 n. 4.

. Plaintiff also argues that the District Court committed legal error by considering the “na*24ture of the statеments themselves” without regard to the context of the new evidence. Appellant's Br. 30-31; see Matrixx Initiatives, Inc. v. Siracusano, - U.S. -, 131 S.Ct. 1309, 1321, 179 L.Ed.2d 398 (2011) (stating that materiality is "a fact-specific inquiry” requiring consideration of "source, content, and context”). The District Court, however, plainly analyzed the alleged misstatements in light of the new evidenсe and found that "plaintiffs have not show[n] why these statements are misleading as a result of their new evidence.” Reese, 293 F.R.D. at 624.



Dissenting Opinion

STRAUB, Circuit Judge,

dissenting:

I respectfully dissent becausе I believe the new evidence to be sufficient to assert that the statements previously found to be but ‍​​​​​​​​‌​‌​​‌​​​‌​​‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌​​​​​‌​‌‌‍puffery were not believed when made and may provide the basis for actionable material misrepresentations with the requisite scienter. Therefore, I would remand for such further consideration.

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