Abramowitz v. Tropicana Atlantic City Corp. et al

REPLY BRIEF to Opposition to Motion

D.N.J.May 4, 2017

1125 Atlantic Avenue – 3rd Floor Atlantic City, NJ 08401 Phone (609) 344-3161 Toll Free (800) 529-3161 Fax (609) 344-0939 www.cooperlevenson.com N E W J E R S E Y | D E L A W A R E | N E V A D A | F L O R I D A JUSTIN A. BRITTON Also Admitted to PA Bar NJ Attorney ID 034502012 EMAIL: jbritton@cooperlevenson.com Direct Phone (609) 572-7422 Direct Fax (609) 572-7423 FILE NO. 58642/00001 May 3, 2017 Via Electronic Filing Honorable Joel Schneider United States District Court Mitchell H. Cohen U.S. Courthouse 1 John F. Gerry Plaza 4th & Cooper Streets, Room 1050 Camden, NJ 08101 Re: Darryl Abramowitz v. Tropicana Atlantic City Corp. d/b/a Tropicana Casino and Resort and Marina District Development Company, LLC d/b/a Borgata Hotel Casino & Spa Civil Action No.1:15-cv-01694 JS Dear Judge Schneider: As Your Honor is aware, the undersigned represents defendants, Tropicana and Borgata, with respect to the above-referenced matter. In accordance with the Court’s May 2, 2017 Order (Doc. 82), Defendants submit this letter brief in lieu of a more formal sur-reply in further opposition of plaintiff, Darryl Abramowitz’s Motion for Reconsideration (Doc. 73 – 74) of the Court’s March 17, 2017 Order and Opinion (Docs. 71 – 72) granting summary judgment. Plaintiff’s reply papers further demonstrate a deep rooted misunderstanding of the standard which governs reconsideration motions. Despite stating at the outset that “[t]he purpose of [his] reply is not to rehash previously stated arguments,” plaintiff has done precisely that. (Pl. Reply Br., Doc. 79, at 1). Quite simply, plaintiff has yet to point to any “matter or controlling decision which [he] believes the Judge [] has overlooked[.]” L. Civ. R. 7.1(i). Similarly, nothing in plaintiff’s reply papers establishes the required showing that “(1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) [reconsideration] is necessary to correct a clear error of law or prevent manifest injustice.” Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 215 F. Supp. 2d 482, 507 (D.N.J. 2002). Nor do any of plaintiff’s moving papers demonstrate a showing of the most exceptional circumstances necessary to warrant the “extraordinary remedy” of reconsideration. Id. Instead, plaintiff’s Case 1:15-cv-01694-JS Document 83 Filed 05/04/17 Page 1 of 2 PageID: 937 C O O P E R L E V E N S O N , P . A . Honorable Joel Schneider May 3, 2017 Page 2 substantive arguments consist of him merely repeating the Cox v. Sears Roebuck & Co., 138 N.J. 2 (N.J. 1994) and Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234 (N.J. 2005) decisions and similar cases and/or case law which were previously cited in Defendants’ summary judgment papers.1 At their core, plaintiff’s motion and reply brief demonstrate his sheer disagreement with the Court’s decision. However, as set out in Defendants’ opposition, reconsideration motions are not meant to “provide the parties with an opportunity for a second bite at the apple.” Tishcio v. Bontex, Inc., 16 F. Supp. 2d 511, 532 (D.N.J. 1989). Nor are they intended to be used as a tool to re-litigate old matters or argue new ones which could have been raised before the original decision but were not. P. Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001); NL Indus. Inc. v. Comm. Union Ins., Co., 935 F. Supp. 513, 516 (D.N.J. 1996). (Defs.’ Opp’n, Doc. 75, at 4). Despite this, plaintiff relies heavily on the a 2013 decision which he did not raise in his opposition to Defendants’ summary judgment motion or in his moving papers for reconsideration and provides no basis for his failure to do so. As such, plaintiff’s motion clearly does not meet the high burden required to warrant reconsideration of the Court’s March 17, 2017 Order granting of summary judgment. Defendants, therefore, respectfully request the Court DENY plaintiff’s motion for reconsideration. The Court’s attention and courtesy in connection with this matter is greatly appreciated. Respectfully, Cooper Levenson, P.A. /s/ Justin A. Britton Justin A. Britton JAB/ cc: Saul J. Steinberg, Esq. & David W. Sufrin, Esq. – via ECF. Russell L. Lichtenstein, Esq. – via ECF CLAC 3968146.1 1 Plaintiff’s reply brief does include a block quote from this Court’s decision in Santiago v. City of Vineland, 107 F. Supp. 2d 512, 526-27 (D.N.J. 2000) which contains various internal citations to previously cited cases relating to the standard for deciding summary judgment motions. (Pl. Reply Br., Doc. 79, at 5). Case 1:15-cv-01694-JS Document 83 Filed 05/04/17 Page 2 of 2 PageID: 938