Andreula v. Capital One Financial Corporation et al

BRIEF in Opposition

D.N.J.January 3, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ------------------------------------------------------ VINCENT P. ANDREULA, Plaintiff, v. CAPITAL ONE FINANCIAL CORPORATION, JOHN DOES 1-10, and ABC CORP. 1-10, said names being fictitious Defendants. ------------------------------------------------------ : : : : : : : : : : : : Hon. Madeline Cox Arleo, U.S.D.J. Case No. 2:14-cv-05276-MCA-LDW Civil Action ORAL ARGUMENT REQUESTED RETURN DATE: JANUARY 17, 2017 DEFENDANT’S BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10 Madison Avenue, Suite 400 Morristown, New Jersey 07960 Tel: 973.656.1600 Fax: 973.656.1611 Attorneys for Defendant Capital One, N.A. Of Counsel: Sharon P. Margello, Esq. On the Brief: Jason W. Isom, Esq. Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 1 of 17 PageID: 759 i TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 LEGAL ARGUMENT .................................................................................................................... 3 POINT I PLAINTIFF HAS FAILED TO ARTICULATE ANY MANIFEST ERRORS OF LAW THAT WOULD AFFECT THE COURT’S UNDERLYING DECISION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ........................................... 3 A. Standard of Review on Reconsideration ........................................................... 3 B. This Court Correctly Held That Plaintiff Failed to Establish Actual or Justifiable Reliance on Spadafino’s Alleged Statement ................................... 5 C. This Court Did Not Ignore Precedent in Reaching its Decision ...................... 6 POINT II THIS COURT CORRECTLY HELD THAT PLAINTIFF COULD NOT HAVE REASONABLY RELIED ON SPADAFINO’S MISREPRESENTATION BECAUSE PLAINTIFF FAILED TO INVESTIGATE DESPITE CLEAR AND CONTRACTUAL LANGAGE TO THE CONTRARY ................................................................................. 11 CONCLUSION ............................................................................................................................. 13 Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 2 of 17 PageID: 760 ii TABLE OF AUTHORITIES Page(s) Cases Ashton v. AT&T Corp., No. 03-3158, 2006 WL 6909588 (D.N.J. Feb.2, 2006) .............................................................5 Arcand v. Brother Int’l. Corp., 673 F.Supp.2d 282 (2009) .......................................................................................................11 Bernard v. IMI Sys., Inc., 131 N.J. 91 (1993) .....................................................................................................................5 Bowers v. Nat'l Collegiate Athletic Ass'n., 130 F.Supp.2d 610 (D.N.J.2001) rev'd on other grounds by 475 F.3d 524 (3d Cir.2007) ....................................................................................................................................3 Brackett v. Ashcroft, No. 03–3988, 2003 WL 22303078 (D.N.J. Oct. 7, 2003).................................................................................4 Carmichael v. Everson, No. 03–4787, 2004 WL 1587894 (D.N.J. May 21, 2004) ................................................................................4 In re Christie, 222 B.R. 64 (Bankr.D.N.J.1998) ...............................................................................................4 Connolly v. Mitsui O.S.K. Lines (America), Inc., No. 04–5127, 2010 WL 715775 (D.N.J. Mar. 1, 2010) .............................................................3 DeJoy v. Comcast Cable Communications Inc., 968 F.Supp. 963 (1997), and (4) ............................................................................................6, 7 Dubler v. Hangsterfer's Laboratories, No. 09–5144, 2012 WL 1332569 (D.N.J., Apr. 17, 2012) ........................................................4 G—69 v. Degnan, 748 F.Supp. 274 (D.N.J.1990) ...................................................................................................4 Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir.1985), cert. denied 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986) ....................................................................................................................3 McConkey v. AON Corp., 354 N.J. Super. 25 (App. Div. 2002) .............................................................................6, 7, 8, 9 Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 3 of 17 PageID: 761 iii Nappe v. Anschelewitz, Barr, Ansell & Bonello, 189 N.J. Super. 347 (App. Div. 1983) .....................................................................................13 Oritani Sav. & Loan Assn. v. Fidelity & Deposit Co., 744 F.Supp. 1311 (D.N.J.1990) .................................................................................................4 P. Schoenfeld Asset. Mgmt., L.L.C. v. Cendant Corp., 161 F.Supp.2d 349 (D.N.J.2001) ...............................................................................................3 Peck v. Imedia, Inc. 293 N.J. Super. 151 (1996) .............................................................................................. passim Pop’s Cones, Inc. v. Resorts Int’l Hotel, Inc., 307 N.J.Super. 461, 704 A.2d 1321 (App.Div.1998) ........................................................6, 7, 9 Schley v. Microsoft Corporation, Civ. No. 08-3589, 2008 WL 5075266 (D.N.J. 2008) ....................................................1, 6, 7, 9 Tecchio v. United States ex rel. Meola, No. 03–1529, 2004 WL 2827899 (D.N.J. Oct. 24, 2003) ..........................................................3 United States v. Compaction Sys. Corp., 88 F.Supp.2d 339 (D.N.J.1999) .................................................................................................3 Wiest v. Lynch, 710 F.3d 121 (3d Cir. 2013).....................................................................................................12 Worbetz v. Ward N. Am., Inc., 54 F. App'x 526 (3d Cir. 2002) ..................................................................................................6 Other Authorities Local Civil Rule 7.1(i) .....................................................................................................................3 Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 4 of 17 PageID: 762 Page 1 of 13 PRELIMINARY STATEMENT Plaintiff Vincent P. Andreula (“Plaintiff” or “Andreula”) seeks reconsideration of this Court’s well-reasoned and thorough decision dismissing, with prejudice, Plaintiff’s negligent misrepresentation claims, concluding that Plaintiff was an at-will employee and thus could not reasonably rely on alleged misrepresentations by Defendant Capital One, N.A. (“Defendant” or “Capital One”) regarding the terms and conditions of his employment. See Nov. 28, 2016, Op. (Doc. 28) (“Opinion”). Adding more unnecessary time and expense to this litigation, Plaintiff now asks this Court to reconsider that ruling. However, Plaintiff fails to identify any error of law or fact that would warrant such relief. Instead, Plaintiff merely repeats and reformulates the same arguments that this Court properly rejected in ruling on Defendant’s Motion for Summary Judgment. There is no basis for reconsideration, and this Court's prior ruling should stand. More specifically, Plaintiff argues that in a situation, inapplicable here, where a “potential employee” can collect reliance damages when knowingly induced by a “potential employer” to incur reliance, such as leaving another job. In support of this proposition, Plaintiff cites Peck v. Imedia, Inc., a case in which the plaintiff received a job offer, accepted the job offer, and the employer rescinded the job before the plaintiff commenced employment. 293 N.J.Super. 151 (1995). In Peck, the Court held that the Plaintiff was entitled to reliance damages for costs incurred in reliance upon the job offer itself. In fact, this Court, in Schley v. Microsoft Corp. has stated, “New Jersey's recognition of a cause of action for promissory estoppel under these circumstances is premised on a desire to compensate prospective employees for ‘losses incident to reliance upon [a] job offer itself.’ Civ. No. 08-3589, 2008 WL 5075266 (D.N.J. 2008), citing Peck. Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 5 of 17 PageID: 763 Page 2 of 13 Here, Capital One was not a “potential employer,” but Plaintiff’s actual employer. Plaintiff was not a “potential employee” but an actual employee. Plaintiff worked for Capital One for over one year before being terminated for his refusal to stop receiving commissions from his former employer, which Capital One determined violated its conflict policies. Further, because Plaintiff was an at-will employee, Capital One had the right to terminate him at any time for any reason or change their employment policies at any time for any reason. Second, Plaintiff argues that this Court erred in finding that Plaintiff had a duty to investigate the accuracy of Lisa Spadafino’s (“Spadafino”) statement given that it contradicted the at-will employment language contained in his Offer Letter, Confidentiality and Work Product Agreement, Code of Conduct, and Business Banking Incentive Plan, all of which explcity stated Plaintiff was an at-will employee who could be fired any time for any reason. Plaintiff can cite no case law or relevant fact which counters this Court’s reasoning. Thus, these arguments fail as well. Unfortunately for Plaintiff, almost all of what he complains about are not “manifest errors of law,” but rather, Plaintiff’s disagreement with this Court’s decision. This type of argument will not suffice on a motion for reconsideration. As such, Plaintiff’s motion for reconsideration must be denied, and Plaintiff’s Complaint dismissed, with prejudice. Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 6 of 17 PageID: 764 Page 3 of 13 LEGAL ARGUMENT POINT I PLAINTIFF HAS FAILED TO ARTICULATE ANY MANIFEST ERRORS OF LAW THAT WOULD AFFECT THE COURT’S UNDERLYING DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT A. Standard of Review on Reconsideration While the Federal Rules of Civil Procedure do not expressly recognize motions for “reconsideration,” United States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J.1999), the Local Civil Rules governing the District of New Jersey do provide for such review. Local Civil Rule 7.1(i) states that a motion for reconsideration “setting forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked” may be filed within fourteen (14) days after entry of an order. L. Civ. R. 7.1(i). The motion may not be used to relitigate old matters or argue new matters that could have been raised before the original decision was reached. See, P. Schoenfeld Asset. Mgmt., L.L.C. v. Cendant Corp., 161 F.Supp.2d 349, 352 (D.N.J. 2001). The Court will grant such a motion only if the matters overlooked might reasonably have resulted in a different conclusion. Bowers v. Nat'l Collegiate Athletic Ass'n., 130 F.Supp.2d 610, 613 (D.N.J.2001) rev'd on other grounds by 475 F.3d 524 (3d Cir.2007). “The purpose of a motion for reconsideration is to correct manifest errors of law or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986); Tecchio v. United States ex rel. Meola, No. 03–1529, 2004 WL 2827899, at *1 (D.N.J. Oct. 24, 2003) (quoting same). The granting of a motion for reconsideration is an extraordinary remedy and should be sparingly given by the court. Connolly v. Mitsui O.S.K. Lines (America), Inc., No. 04–5127, 2010 WL Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 7 of 17 PageID: 765 Page 4 of 13 715775, at *1 (D.N.J. Mar. 1, 2010) (citations omitted). Reconsideration is not appropriate where the motion raises only a party's disagreement with the court's initial decision. Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159, 162 (D.N.J.1988). See also, In re Christie, 222 B.R. 64 (Bankr.D.N.J.1998) (“[A] motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple.”). Differences of opinion with a court's decision should be dealt with through the normal appellate process. See, Dubler v. Hangsterfer's Laboratories, No. 09–5144, 2012 WL 1332569, *2 (D.N.J., Apr. 17, 2012) (citing Bowers v. Nat'l Collegiate Athletic Ass‘n, 130 F.Supp.2d at 612). There are three grounds for granting a motion for reconsideration: (1) an intervening change in controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. See Carmichael v. Everson, No. 03–4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004); Brackett v. Ashcroft, No. 03–3988, 2003 WL 22303078, at *2 (D.N.J. Oct. 7, 2003). In sum, it is improper on a motion for reconsideration to “ask the Court to rethink what it ha[s] already thought through-rightly or wrongly.” Oritani Sav. & Loan Assn. v. Fidelity & Deposit Co., 744 F.Supp. 1311, 1314 (D.N.J.1990) (citations omitted). “The only proper ground for granting a motion for reconsideration, therefore, is that the matters or decisions overlooked, if considered by the court, might reasonably have altered the result reached ....” G—69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J.1990) (quoting New York Guardian Mortgage Corp. v. Cleland, 473 F.Supp. 409, 420 (S.D.N.Y.1979)) (internal quotation marks omitted). The fact that a legal issue was not explicitly mentioned by the court does not preclude a finding that it was not overlooked in the court’s initial consideration of the matter. See, Ashton v. AT&T Corp., No. 03-3158, 2006 WL 6909588, at *2 (D.N.J. Feb.2, 2006). Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 8 of 17 PageID: 766 Page 5 of 13 As Plaintiff does not assert that there has been any intervening change in the controlling law or that he has discovered previously unavailable evidence, Plaintiff’s sole basis for reconsideration must be for the Court to correct a clear error of law or prevent manifest injustice. B. This Court Correctly Held That Plaintiff Failed to Establish Actual or Justifiable Reliance on Spadafino’s Alleged Statement This Court correctly dismissed Plaintiff’s negligent misrepresentation claims, concluding that Plaintiff was an at-will employee and thus could not reasonably rely on alleged misrepresentations by Defendant regarding the terms and conditions of his employment. See Opinion. In New Jersey, the at-will employment presumption can only be overcome if the employee's status as a non-at-will employee is “specifically stated in explicit, contractual terms.” Bernard v. IMI Sys., Inc., 131 N.J. 91, 106 (1993). This court, citing Worbetz, correctly reasoned that a plaintiff cannot overcome the at-will nature of his employment by alleging oral representations during the hiring process. See Opinion citing Worbetz v. Ward N. Am., Inc., 54 F. App'x 526, 531-32 (3d Cir. 2002) (“Because Worbetz agreed to be employed ‘at will’ in documents he signed before and during the course of his employment, he cannot show reasonable reliance on a promise of employment on a commission basis for a two-year term.”). Here, the Court found that Plaintiff could not reasonably believe that Capital One could not fire him for receiving commissions from his former employer or force him to give up the commissions. Plaintiff was an at-will employee, and thus, absent an agreement to the contrary, the relationship between an employer and its employees is presumed to be for an indefinite period and terminable at the will of either party. Worbetz 54 Fed. App’x at 532. Like the plaintiff in Worbetz, alleged remarks made during an interview cannot vitiate Plaintiff’s at-will Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 9 of 17 PageID: 767 Page 6 of 13 employment status, which was memorialized in his Offer Letter, Confidentiality and Work Product Agreement, Code of Conduct, and Business Banking Incentive Plan. In light of the above, this Court correctly dismissed Plaintiff’s claim of negligent misrepresentation, with prejudice. C. This Court Did Not Ignore Precedent in Reaching its Decision Plaintiff now argues that this Court’s holding runs counter to published precedent which, he implies, establishes a cause of action for negligent misrepresentation based upon statements made during the hiring process about terms and conditions of employment. Plaintiff essentially disagrees with this Court’s analysis of the distinctions between Worbetz v. Ward N. Am., Inc., 54 F. App'x 526, 531-32 (3d Cir. 2002) and McConkey v. AON Corp., 354 N.J. Super. 25 (App. Div. 2002), alleging that the only distinction between Worbetz and McConkey is the form of damages available to Plaintiff. More specifically, Plaintiff argues that in a situation, inapplicable here, where a “potential employee” is knowingly induced by a potential employer to incur reliance, such as leaving another job, that employee is limited to collecting provable reliance damages. In support of this misguided argument, Plaintiff primarily cites four cases: (1) Peck v. Imedia, Inc. 293 N.J. Super. 151 (1996); (2) Pop’s Cones, Inc. v. Resorts Int’l Hotel, Inc., 307 N.J.Super. 461, 472–73, 704 A.2d 1321 (App.Div.1998); (3) DeJoy v. Comcast Cable Communications Inc., 968 F.Supp. 963 (1997), and (4) Schley v. Microsoft Corporation, Civ. No. 08-3589, 2008 WL 5075266 (D.N.J. 2008); none of which change this Court’s Opinion; and all of which are wholly inapposite to the matter at hand. In Peck, the plaintiff received a job offer from the defendant. In reliance on this job offer, she rented out her apartment in Boston, signed a new lease for an apartment in New Jersey, Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 10 of 17 PageID: 768 Page 7 of 13 arranged for movers, and gave up her clients in the Boston metropolitan area. Id. at 158, 679 A.2d 745. Before commencing employment, the defendant rescinded the job offer. Further, the defendant rescinded the job offer over ten days before notifying the plaintiff. On those specific facts, the Appellate Division found that Peck’s promissory estoppel claim should have survived summary judgment. The basis for this holding was that “an at-will employment contract offer was a “clear and definite promise” for purposes of promissory estoppel. Pop’s Cones, Inc. v. Resorts Int’l Hotel, Inc., 307 N.J.Super. 461, 472–73, 704 A.2d 1321 (App.Div.1998) (citing Peck at 165-68, 679 A.2d 745); Id. at 470 (citing Peck, that an “even though the employer can terminate the employment relationship at any time, there may be losses incident to reliance upon the job offer itself.”); See also DeJoy v. Comcast Cable Communications Inc., 968 F.Supp. 963 (1997) (citing Peck, that a plaintiff is allowed, “to proceed on a theory of promissory estoppel by virtue of [their] detrimental reliance on a promise of employment.”) Plaintiff also cites Schley v. Microsoft Corp., which states, “New Jersey's recognition of a cause of action for promissory estoppel under these circumstances is premised on a desire to compensate prospective employees for ‘losses incident to reliance upon [a] job offer itself’ Civ. No. 08-3589, 2008 WL 5075266 (D.N.J. 2008), citing Peck. Thus, the holdings in Peck, Pop’s Cones, Dejoy, and Schley all stand for the limited proposition a prospective at-will employee can recover for losses incident to reliance on the job offer itself, provided it is withdrawn before their employment commences. Conceding his at-will status in his moving papers, Plaintiff argues that the at-will doctrine is not a bar to his claim of negligent misrepresentation. In support of this novel argument, Plaintiff mistakenly relies on McConkey v. AON Corp., 354 N.J. Super. 25 (App. Div. 2002), which does not even address a claim of negligent misrepresentation. McConkey is completely inapposite as the plaintiff in that case alleged fraud based on misrepresentations made to him by the Chair of the Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 11 of 17 PageID: 769 Page 8 of 13 defendant, which was recruiting McConkey for employment. Id. at 35. Indeed, Plaintiff’s claim of negligent misrepresentation was dismissed before trial. Id. at 32, n. 2. As such, McConkey does not support Plaintiff’s expansive argument for the erosion of the at-will doctrine. Moreover, the facts in McConkey are distinguishable. Before his hiring, McConkey disclosed to the Chair that he was concerned about accepting a position with the defendant because of rumors that it was seeking to sell itself. The Chair dispelled these rumors as unfounded despite being actively engaged in merger talks during that time. Relying on this assurance, Plaintiff accepted a job with the defendant. Id. at 35-36. The Court found the defendant liable for the Chair’s misrepresentation because the plaintiff met with the Chair to get a reflection of current facts concerning the status of the company in order to decide whether a position with the defendant was in his best interests. Id. at 49. Here, Plaintiff does not claim that he ever told Spadafino that his acceptance of employment at Capital One was contingent on his continuing to receive commission from Primary Capital. Nor was the statement made by Spadafino akin to the statement made by the Chair in McConkey. In fact, Plaintiff worked for Capital One for over a year before being terminated for his refusal to stop receiving commissions from his former employer, which Capital One determined violated its conflict policies. Further, Plaintiff did not allege any reliance damages beyond that suffered by every at-will employee upon termination. Finally, the only reliance damages alleged in his complaint are those associated with the loss of his prior position with his former employer; such damages are not recoverable. See Peck at 165-166 (citing Employer’s State-Law Liability for Withdrawing, or Substantially Altering, Job Offer for Indefinite Period Before Employee Actually Commences Employment, 1 A.L.R.5th 401 (1992)… “[c]ourts have generally found that the mere detriment furnished by an employee in Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 12 of 17 PageID: 770 Page 9 of 13 leaving one position and taking another does not constitute sufficient consideration” to create a “contract of permanent employment or one terminable only for cause.” Id. at 408.) In short, Plaintiff’s convoluted argument fails because Peck, as interpreted by Pop’s Cones, Dejoy, and Schley held that at-will prospective employees can recover for “losses incident to reliance on the job offer itself, even though their employer can terminate the employment relationship at any time.” Peck at 167, 679 A.2d 745. To the extent that Plaintiff claims that there is support for his claim based upon the McConkey case, as correctly noted by this Court, McConkey involved entirely different facts and claims. Despite having every opportunity to do so in his moving papers, Plaintiff fails to cite any authority for his argument that an at-will employee, who is terminated after commencing employment, can then recover damages for detrimental reliance based on representations made about the terms and conditions of employment in his job interview. Simply put, no authority exists. Recognizing this insurmountable gap in logic, and the radically different fact patterns between the cases relied upon by the Court and the cases argued in Plaintiff’s moving papers; Plaintiff strains to tie Peck (and the cases which cite it) to McConkey in an effort to bolster his original argument that was rejected by this Court in its Opinion. Finally, this Court dismissed Plaintiff’s negligent misrepresentation claim because he could not prove justifiable reliance, not because of the form of damages sought. It is irrelevant whether Plaintiff was seeking expectation damages or reliance damages, regardless; he could not demonstrate justifiable reliance on Spadafino’s statement because he was an at-will employee. As set forth in the Opinion, and in the cases cited by Plaintiff in his moving papers, New Jersey courts have repeatedly held that because promises of employment are generally promises of at- Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 13 of 17 PageID: 771 Page 10 of 13 will employment only, reliance thereon does not typically give rise to a cause of action. Peck at 166, 679 A.2d 745. In light of the foregoing, Plaintiff cannot identify a manifest error of law because no such error exists. Thus, this Court’s decision to grant Defendant’s Motion for Summary Judgment should be upheld. Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 14 of 17 PageID: 772 Page 11 of 13 POINT II THIS COURT CORRECTLY HELD THAT PLAINTIFF COULD NOT HAVE REASONABLY RELIED ON SPADAFINO’S MISREPRESENTATION BECAUSE PLAINTIFF FAILED TO INVESTIGATE DESPITE CLEAR AND CONTRACTUAL LANGAGE TO THE CONTRARY Plaintiff argues that the Court committed an error by holding that because he was on notice that Spadafino’s statement may not have been accurate, he had a duty to investigate the issue. In support of this holding, the Court cites to Arcand v. Brother Int’l Corp., which held that “a party reasonably relied on a misrepresentation where the ‘facts to the contrary were not obvious or did not provide a warning,’ or where the relying party did not reasonably ‘pursue further investigation’ that would have revealed ‘the falsity of the representation.’” 673 F.Supp.2d 282 (2009). (quoting Nappe v. Anschelewitz, Barr, Ansell & Bonello, 189 N.J. Super. 347, 355 (App. Div. 1983). In Arcand, this Court dismissed the fraud claims of two plaintiffs who claimed that their printer misleadingly indicated that toner cartridges needed to be replaced when there was still toner remaining in the cartridges. 673 F. Supp. 2d at 289-90. It turned out that the printer's user manual made clear how many pages could be printed with each cartridge, and there was no allegation that cartridges did not or could not supply enough toner to print the specified number of pages. Id. at 306. Because reasonable investigation (i.e., reading the relevant sections of the printer's user manual) would have prevented the plaintiffs from allegedly being misled, the court dismissed their fraud claims. Contrary to Plaintiff’s characterization, the Court in Arcand did not concern itself with why the plaintiffs’ relied on one section of the user manual versus another section. The Court’s only concern was the plaintiffs’ failure to read the entire user manual, which would have prevented them from being misled regarding the cartridge’s capacity. Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 15 of 17 PageID: 773 Page 12 of 13 Here, Plaintiff’s explanation for why he relied on Spadafino’s statement, instead of the clear, unmistkable at-will employment language in his offer letter and other assorted documents, is irrelevant. Such an explanation would not change the sound legal reasoning underlying the Court’s Opinion. This Court found that Plaintiff, in light of foregoing contractual paperwork, which he acknowledged reviewing and receiving, had a duty to investigate the accuracy of Spadafino’s statement. If Plaintiff had read the foregoing contractual paperwork concerning his employment, he would have known he was an at-will employee and thus would not have been misled by Spadafino’s statement. Plaintiff’s unsupported belief that “a jury could easily understand” does not constitute a “clear error of law” requiring reversal. Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013) (citations omitted). Plaintiff also argues that because his offer letter did not contain language regarding conflicts of interest, then this Court could not conclude that Plaintiff should have further investigated the conflict issue. The argument misstates this Court’s ruling. This Court found that because Plaintiff was an at-will employee, he could not have reasonably relied on alleged misrepresentations by Defendant regarding the terms and conditions of his employment. Whether the offer letter contains language regarding conflicts of interest has no bearing on that analysis. Finally, Plaintiff argues that this Court erred in relying on Koch Materials Co. v. Shore Slurry Seal, Inc. because in that case, the plaintiff negotiated an actual written contract with the advice of legal counsel. No. 01-2015, 2005 WL 147061 at *9-11 (D.N.J. Jan. 13, 2005). Thus the Court determined that Plaintiff’s reliance was unreasonable. In the Koch matter, the plaintiff was an asphalt emulsion manufacturer negotiating an Exclusive Supply Agreement involving the purchase of two million gallons of asphalt per year, not an employee negotiating an employment contract, thus Plaintiff’s distinction is inapplicable. Further, contrary to Plaintiff’s assertion, the Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 16 of 17 PageID: 774 Page 13 of 13 Court in this case did apply New Jersey law to the plaintiff’s negligent misrepresentation claim and came to the same conclusion. Id at 6. Further, this case is similar to Koch because Plaintiff possessed clear unmistakable language that contradicted Spadafino’s misrepresentation. This at-will employment language was memorialized in Plaintiff’s offer letter, Confidentiality and Work Product Agreement, Code of Conduct, and Business Banking Incentive Plan. Thus Plaintiff, like the plaintiff in Koch, was not justified in relying on Spadafino’s misrepresentation. See also Nappe supra at 165 (quoting Dickinson v. Dickinson, 137 N.E. 468, 470 (Ill. Sup. Ct. 1922)) (explaining that a person “is not justified in relying on representations made, when he has ample opportunity to ascertain the truth of the representations before he acts. . . .If one does not avail himself of the means of knowledge open to him, he cannot be heard to say he was deceived by misrepresentations.”) In light of the foregoing, Plaintiff had a duty to investigate and failed to so. Accordingly, this Court’s ruling on this issue was correct. CONCLUSION For the foregoing reasons, it is respectfully submitted that this Court deny Plaintiff’s Motion for Reconsideration. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Attorneys for Defendant By: /s/ Sharon P. Margello Sharon P. Margello, Esq. Dated: January 3, 2017 28202918.1 Case 2:14-cv-05276-MCA-LDW Document 32 Filed 01/03/17 Page 17 of 17 PageID: 775 Sharon P. Margello, Esq. Jason W. Isom, Esq. OGLETREE, DEAKINS, NASH SMOAK & STEWART, P.C. 10 Madison Avenue, Suite 400 Morristown, New Jersey 07960 (973) 656-1600 Sharon.Margello@ogletreedeakins.com Jason.Isom@ogletreedeakins.com Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ------------------------------------------------------ VINCENT P. ANDREULA, Plaintiff, v. CAPITAL ONE FINANCIAL CORPORATION, JOHN DOES 1-10, and ABC CORP. 1-10, said names being fictitious Defendants. ------------------------------------------------------ : : : : : : : : : : : : Hon. Madeline Cox Arleo, U.S.D.J. Case No. 2:14-cv-05276-MCA-LDW Civil Action CERTIFICATION OF JASON W. ISOM, ESQ. IN OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION Document Filed Electronically I, JASON W. ISOM, of full age, hereby certifies as follows: 1. I am an associate with Ogletree, Deakins, Nash, Smoak & Stewart, P.C., and counsel for Defendant in the above referenced matter. I make this Certification, based upon personal knowledge, in opposition to Plaintiff’s Motion for Reconsideration of the Court’s grant of Defendant’s Motion for Summary Judgment. 2. Attached hereto as Exhibit A is a true and correct copy of the unpublished decision in Ashton v. AT&T Corp., No. 03-3158, 2006 WL 6909588 (D.N.J. Feb.2, 2006). 3. Attached hereto as Exhibit B is a true and correct copy of the unpublished decision in Brackett v. Ashcroft, No. 03–3988, 2003 WL 22303078 (D.N.J. Oct. 7, 2003). Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 1 of 25 PageID: 776 2 4. Attached hereto as Exhibit C is a true and correct copy of the unpublished decision in Carmichael v. Everson, No. 03–4787, 2004 WL 1587894 (D.N.J. May 21, 2004). 5. Attached hereto as Exhibit D is a true and correct copy of the unpublished decision in Connolly v. Mitsui O.S.K. Lines (America), Inc., No. 04–5127, 2010 WL 715775 (D.N.J. Mar. 1, 2010). 6. Attached hereto as Exhibit E is a true and correct copy of the unpublished decision in Dubler v. Hangsterfer's Laboratories, No. 09–5144, 2012 WL 1332569 (D.N.J., Apr. 17, 2012). 7. Attached hereto as Exhibit F is a true and correct copy of the unpublished decision in Tecchio v. United States ex rel. Meola, No. 03–1529, 2004 WL 2827899 (D.N.J. Oct. 24, 2003). I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Attorneys for Defendant By: /s/ Jason W. Isom Jason W. Isom, Esq. Dated: January 3, 2017 28220863.1 Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 2 of 25 PageID: 777 Exhibit A Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 3 of 25 PageID: 778 Ashton v. AT & T Corp., Not Reported in F.Supp.2d (2006) 2006 WL 6909588 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2006 WL 6909588 Only the Westlaw citation is currently available. NOT FOR PUBLICATION United States District Court, D. New Jersey. Jane ASHTON, Plaintiff, v. AT & T CORPORATION, Defendant. Civil Action No. 03–CV–3158 (DMC). | Feb. 2, 2006. Attorneys and Law Firms Kevin Michael Kiernan, Loretta Angela Castrovinci, Kiernan & Campbell, Montclair, NJ, for Plaintiff. Theresa A. Kelly, Day Pitney Llp, Morristown, NJ, for Defendant. OPINION DENNIS M. CAVANAUGH, District Judge. *1 This matter comes before the Court upon a motion by Jane Ashton (“Plaintiff”) for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). Plaintiff seeks reconsideration of this Court’s September 22, 2005 Opinion and Order granting AT & T’s (“Defendant”) motion for summary judgment. This motion is decided without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiff’s motion for reconsideration is denied. I. Background The facts of this matter are described in detail in this Court’s September 22, 2005 Opinion and in the interest of judicial economy the facts will not be restated in this Opinion. On October 11, 2005, Plaintiff filed a Motion for Reconsideration and now requests this Court to reconsider that which it previously decided. II. Discussion A. The Standard for Reconsideration Under Rule 59 of the Federal Rules of Civil Procedure, a plaintiff must satisfy a high standard in order to have a judgement altered or amended. In North River Insurance Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995), the Court stated that a Rule 59 motion for an amended judgment must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence that was previously unavailable; or (3) the need to either correct a clear error of law or prevent a manifest injustice. A motion for reconsideration is regarded as “the functional equivalent of a Rule 59 motion ... to alter or amend judgment.” Venen v. Sweet, 758 F.2d 117, 122 (3d Cir.1985). B. Local Rule 7.1 Although Rule 59 allows for a judgment to be altered, there is no express provision in the Federal Rules of Civil Procedure for a judicial decision to be reconsidered. United States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J.1999) (Hedges, U.S.M.J.). However, in this District, Local Rule 7.1(g) creates a specific procedure by which a party may, within 10 days of the entry of an order, ask either a District Judge, or a Magistrate Judge, to take a second look at any decision “upon showing that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision.” LITE, N.J. FEDERAL PRACTICE RULES, Comment 6 to L. Civ. R. 7.1(g) (GANN 2002 ed.). Consequently, Local Rule 7.1(g) of the Local Rules of Civil Procedure, rather than Rule 59 of the Federal Rules of Civil Procedure, governs motions for reconsideration filed in the District of New Jersey. Compaction Sys. Corp., 88 F.Supp.2d at 345. Relief by way of a motion for reconsideration is an “extraordinary remedy” only be granted “very sparingly.” NL Indus. Inc. v. Commercial Union Ins., Co., 935 F.Supp. 513, 516 (D.N.J.1996); Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J.1986) (Brotman, U.S.D.J.). Local Rule 7.1(g) does not contemplate a recapitulation of arguments previously considered by the court in rendering Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 4 of 25 PageID: 779 Ashton v. AT & T Corp., Not Reported in F.Supp.2d (2006) 2006 WL 6909588 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 its decision. Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D.N.J.1992) (Lechner, U.S.D.J.), aff’d, 37 F.3d 1485 (3d Cir.1994). Stated more simply, a motion for reconsideration is not an appeal. It is improper for a motion for reconsideration to “ask the court to rethink what it ha[s] already thought through—rightly or wrongly.” Oritani Sav. & Loan Ass’n v. Fidelity & Deposit Co., 744 F.Supp. 1311, 1314 (D.N.J.1990) (Ackerman, U.S.D.J.). Rule 7.1(g) permits reconsideration only when “dispositive factual matters or controlling decisions of law” that were previously presented to the court were overlooked. Resorts Int’l v. Great Bay Hotel and Casino, 830 F.Supp. 826, 831 (D.N.J.1992); Khair v. Campbell Soup, Co., 893 F.Supp. 316, 337 (D.N.J.1995) (Irenas, U.S.D.J.). C. Plaintiff’s Failure to Meet the Standard for Reconsideration *2 Here, the Plaintiff’s motion fails to show that this Court “overlooked” any of the above listed points. Instead, Plaintiff is improperly using a Rule 59 motion as a vehicle to reargue her claims. An argument is not deemed overlooked because it is not specifically addressed in a court’s opinion. Eichorn v. AT & T Corp., No. Civ. A. 96–3587(MLC), 1999 WL 33471890 (D.N.J. Aug.23, 1999) (Cooper, U.S.D.J.). An argument may be regarded as having been considered if it is presented to the court in written submissions and in oral argument. Id. This Court did not overlook any of the Plaintiff’s claims. To the contrary, this Court carefully reviewed and considered each and every allegation in the Plaintiffs’ Complaint. 1. Plaintiff’s LAD and ADA Claims The Plaintiff argues in her motion for reconsideration that this Court erred in finding that she was not disabled under the New Jersey Law Against Discrimination (“LAD”) and the Americans With Disabilities Act (“ADA”). This Court’s reliance on the cases Clowes v. Terminix Int’l, Inc., 109 N.J. 575, 538 A.2d 794 (1988), and Viscik v. Fowler Equipment Company, Inc., 173 N.J. 1, 800 A.2d 826 (2002), to determine that Plaintiff did not have disability under the LAD and the ADA was not misplaced. Plaintiff’s argument that these cases do not apply because both involved jury trials, does not change the fact that plaintiffs suffering from mental disabilities, which are not readily apparent, must present expert medical evidence. Viscik, 173 N.J. at 16, 800 A.2d 826. Plaintiff also alleges she has a mental impairment that renders her disabled under the LAD and ADA and that this Court was incorrect to find otherwise. However, Plaintiff did not offer any expert medical evidence demonstrating such a disability existed. The fact that the New Jersey Labor Department determined Plaintiff was eligible for short term disability benefits is not dispositive of whether a plaintiff is disabled under the ADA or LAD. Plaintiff failed to provide adequate medical evidence proving she was disabled as required under the relevant case law, therefore this Court did not err in granting Defendant’s motion for summary judgment. Plaintiff has not shown that a dispositive factual matter was overlooked by the Court in concluding Plaintiff was not disabled as Rule 7.1(g) requires. Furthermore, Plaintiffs arguments regarding Dicino v. Aetna U.S. Healthcare, 2003 WL 21501818 (D.N.J.2003), are misplaced because Plaintiff’s case deals with a physical handicap and not a mental disability. Also, the plaintiff in Dicino submitted detailed diagnostic tests, medical histories, surgeries and hospitalizations. The Plaintiff in this case has not submitted any such evidence. There is nothing in Plaintiff’s medical file that indicates she is disabled under the LAD or ADA. Plaintiff’s arguments regarding Enriquez v. West Jersey Health System, 342 N.J.Super. 501, 777 A.2d 365 (App.Div.2001) are also unpersuasive. Enriquez addressed a discrimination complaint brought by a transsexual diagnosed with gender dysphoria. Plaintiff’s arguments fail again because the Enriquez Court required medical evidence confirming that the plaintiff was medically diagnosed with gender dysphoria, explaining how the condition manifested itself, and detailing the methods used to make the diagnosis. Id. at 521–22, 777 A.2d 365. Here the Plaintiff failed to present any such medical evidence. Plaintiff has failed to show that controlling decisions of law were overlooked by this Court when it granted Defendant’s motion for summary judgment as required by local Rule 7.1(g). Therefore, Plaintiff’s motion for reconsideration on her LAD and ADA claims is denied. 2. Plaintiff’s FMLA Claim *3 Plaintiff argues that her claim under the Family Medical Leave Act (“FMLA”) should not have been dismissed under the entitlement theory. However, Plaintiff never asserted a claim under the entitlement theory in her Amended Complaint and is barred from Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 5 of 25 PageID: 780 Ashton v. AT & T Corp., Not Reported in F.Supp.2d (2006) 2006 WL 6909588 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 doing so now. Plaintiff also claims this Court erroneously denied her retaliation claim under the FLMA by overlooking her medical file. This Court examined every document Plaintiff submitted, including her medical file. Unfortunately for Plaintiff, her medical file failed to prove she was suffering from a disability or any other medical condition. Again, Plaintiff has failed to show this Court overlooked any dispositive factual matters when I dismissed her FMLA claim. Therefore, Plaintiff’s motion for reconsideration of her FMLA claim is denied. III. Conclusion Plaintiff has not met the high standard required to achieve success on a motion for reconsideration. For the reasons stated in this Opinion, Plaintiff’s motion for reconsideration is denied. An appropriate Order accompanies this Opinion. All Citations Not Reported in F.Supp.2d, 2006 WL 6909588 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 6 of 25 PageID: 781 Exhibit B Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 7 of 25 PageID: 782 Brackett v. Ashcroft, Not Reported in F.Supp.2d (2003) 2003 WL 22303078 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2003 WL 22303078 Only the Westlaw citation is currently available. United States District Court, D. New Jersey. Leonardo BRACKETT, Petitioner, v. John ASHCROFT, et al., Respondents. No. Civ. 03–3988(WJM). | Oct. 7, 2003. Attorneys and Law Firms Lawrence R. Spivak, Bloomfield, New Jersey, for Petitioner, Leonardo Brackett. Thomas R. Calcagni, A.U.S.A., United States Attorney’s Office, District of New Jersey Civil Division, Newark. New Jersey, for Respondents, John Ashcroft et al. OPINION MARTINI, J. *1 This matter comes before this Court on Petitioner, Leonardo Brackett’s (“Brackett”) motion for reargument/reconsideration of this Court’s September 3, 2003 ruling, which denied Brackett’s emergent motion for a stay of his removal to Nicaragua. For the reasons detailed herein, Brackett’s motion for reconsideration is DENIED. BACKGROUND Brackett is a native and citizen of Nicaragua, who became a permanent resident of the United States in 1994. (See Pet. Verified Compl., at ¶ 8). Brackett is presently subject to removal from the United States because of his voluntary plea of cocaine possession in 2000, in New Jersey State Court—Passaic County. (Resp. 8/27/03 Br., at Ex. A). On August 22, 2003, Brackett filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 et seq., challenging his removal to Nicaragua. (See generally, Verified Compl.) Drackett’s habeas petition stated that he was not advised by the Passaic County Public Defender’s Office that his voluntary plea to cocaine possession would render him removable from the United States. (See Pet. Verified Compl., at ¶ 8). Specifically, Brackett asserted that the Office of the Passaic County Public Defender changed his representative at the last minute before the plea hearing. (Id., at ¶ 19). This change allegedly denied Brackett “a meaningful opportunity to review with counsel, and understand the likelihood of removal arising from his guilty plea.” (Id.) Brackett’s habeas petition also asserted that, in November 2002, he filed a motion to vacate his cocaine conviction on grounds of ineffective assistance of counsel. (Id., at ¶ 18). That motion is still pending in Passaic County Court. (Id.) After completion of his sentence in March, 2002, Brackett was transferred to the custody of Respondent, Department of Homeland Security (“DHS”). (Id., at ¶ 11). Shortly thereafter, DHS served Brackett with a Notice to Appear in Immigration Court, Newark, New Jersey, to explain why he should not be removed to Nicaragua for his cocaine possession conviction. (Id.) Brackett alleges that he unknowingly conceded removability, and sought continuances from the Immigration court in order to acquire counsel. (Id.) After approximately three months of continuances, on July 1, 2002, Brackett alleges that Immigration Judge Eugene Pugliese abused his discretion and directed Brackett to proceed pro se. Judge Pugliese subsequently found that Brackett’s cocaine possession conviction merited his removal from the United States. (Resp. 8/27/03 Br., at Ex. A, Pg. 1–3). Brackett alleges that Judge Pugliese failed to allow him to articulate any claims from relief, specifically his fears of returning to Nicaragua. (See Pet. Verified Compl., at ¶ 15). Brackett alleges that he then appealed his removal to the Board of Immigration Appeals on a pro se basis, which was summarily dismissed. (Id.) At that time, Respondents became capable of executing Brackett’s removal. *2 In addition to his habeas claim, Brackett filed an emergent motion for a stay of his deportation. In support of his claim, Brackett argued that he had a motion outstanding in Passaic County for vacatur of his Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 8 of 25 PageID: 783 Brackett v. Ashcroft, Not Reported in F.Supp.2d (2003) 2003 WL 22303078 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 conviction. Brackett asserted that he had “demonstrated a strong likelihood of success on his motions in state court.” (See Pet. Emergent Appl., at 1). Brackett also argued that he previously pled guilty to a burglary offense in 1998 under duress. (Id.) Petitioner asserted that he knew the true perpetrator of the burglary, an individual named Pedro Rosario, but pled guilty because he was afraid of retaliation by Rosario against him and his family. (Id.) In his motion papers, Brackett asked “the Government” to investigate the burglary crime, and offered to cooperate in the process. (Id.) On September 3, 2003, this Court denied Brackett’s emergent request to stay his pending deportation, because he did not demonstrate that he would face irreparable harm if removed to Nicaragua. (See 9/4/03 filed Order). On September 16, 2003, Respondents notified this Court that Petitioner was facing imminent deportation to Nicaragua, and that DHS was going to deport Petitioner within the next three weeks. (See Calcagni 9/16/03 Corresp.) On the same date, Petitioner filed a motion for reconsideration, pursuant to Local Rule 7.1(G), of this Court’s September 3, 2003, denial of the stay of Petitioner’s deportation to Nicaragua. ANALYSIS 1. Standard for Reconsideration or Reargument Local Rule 7.1(g) requires the moving party to “set forth concisely the matters or controlling decisions which counsel believes the [Court] has overlooked.” Id. A motion for reconsideration may be granted if: “(1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice.” Database Am., Inc. v. Bellsouth Adver. & Pub. Corp., 825 F.Supp. 1216, 1220 (D.N.J.1993); North river Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995). As Respondents accurately assert, reconsideration is an extraordinary remedy, that is granted “very sparingly,” Interfaith Community Org v. Honeywell Int’l. Inc., 215 F.Supp.2d. 482, 507 (D.N.J.2002), and only when “ ‘dispositive factual matters or controlling decisions of law’ were brought to the court’s attention but not considered.” P. Schoenfeld Asset Management LLC v. Cendant Corp., 161 F.Supp.2d 349, 353 (D.N.J.2001). 2. Brackett’s Motion for Reconsideration is Denied Because This Court Engaged in Appropriate Analysis in its Denial of the Stay of Deportation. On September 3, 2003, this Court considered whether Brackett had established all of the following four factors: (1) whether Brackett had shown a reasonable probability of success on the merits of his emergent stay application; (2) whether Brackett was irreparably injured by denial of the stay of deportation; (3) whether granting the emergency stay to Brackett resulted in even greater harm to Respondents; and (4) whether granting the emergency stay to Brackett would have been in the public interest. See ACLU v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1477, at n. 2 (3d Cir.1996) (en banc). *3 This Court concludes now, as it did then, that Brackett only submitted unsubstantiated allegations of ineffective assistance of counsel by the Passaic County Defender’s Office in connection with his plea for cocaine possession. It is further undisputed that Brackett signed and initialed a Plea Form, which expressly notified him that “if you are not a U.S. citizen or national, you may be deported by virtue of your plea of guilty.” (Resp. 8/27/03 Opp. Br., at Ex. B, ¶ 17). Regardless of the fact that Brackett’s motion for vacatur is still pending in Passaic County Court, it was, and is clear that Brackett had not demonstrated a strong likelihood of success on his ineffective assistance of counsel claim. Case law also clearly supports the premise that an attorney’s failure to consult or advise his client with respect to deportation consequences of a guilty plea, without more, will not give rise to a claim of ineffective assistance of counsel. Lim v. Ashcroft, 2002 WL 1967945 (D.N.J., Aug. 6, 2002) In its analysis, this Court also noted that Brackett simply failed to allege any irreparable harm of removal to Nicaragua in his emergent motion. Additionally, Respondents had informed the Court that no imminent removal date was scheduled. (Resp. 8/27/03 Opp. Br., at 4, n. 3). Based on the above information, this Court denied Brackett’s emergent motion. This Court sees no reason to disturb its September 3, 2003 ruling. Brackett’s recently acquired counsel argues that the motion for vacatur in Passaic County was a timely, direct attack on Brackett’s conviction for cocaine possession. (Spivak Decl., at ¶ 6). However, Brackett’s counsel fails to address how his client has a strong likelihood of success on that post-conviction motion. Brackett’s counsel also argues for reconsideration on policy grounds because Brackett offered to cooperate with Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 9 of 25 PageID: 784 Brackett v. Ashcroft, Not Reported in F.Supp.2d (2003) 2003 WL 22303078 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 state authorities investigating Mr. Rosario, who committed a burglary crime pled to by Brackett in 1998. (See infra, at 3; Spivak Decl., at ¶ 8). “[Brackett] clearly cannot assist in such investigation by his testimony if he has already been removed to Nicaragua.” (Id.) This argument is meritless. Brackett is being removed for his cocaine possession, not his burglary crime. Furthermore. Brackett offers no proof that he is currently assisting state authorities with any investigation—rather he has simply offered to help in investigating Mr. Rosario. Lastly, counsel argues that Brackett has a legitimate fear of persecution by the Nicaraguan authorities, and that Brackett was previously assaulted for resisting forced recruitment by the Sandinista government to participate in the suppression of the guerilla movement. (Spivak Decl., at ¶ 8). Brackett’s argument is without support, and contrary to evidence submitted by Respondents. First, this Court notes that Brackett has failed to submit any documents that support these non-specific allegations of present, past or future persecution. Second, this Court notes that Immigration Judge Pugliese inquired the following of Brackett: “Do you have any reason to think anyone in Nicaragua wants to torture you or persecute you for any reason?” Brackett replied” “No.” (Resp. 9/17/03 Opp. Br., at Ex. 2). This undisputed contradiction makes Brackett’s reconsideration application fatal. CONCLUSION *4 Accordingly, Brackett’s motion for reconsideration of this Court’s September 2, 2003 Order is DENIED. Respondent’s form of Order is acceptable, and accompanies this Opinion. ORDER THIS MATTER having come before the Court on Motion of Lawrence Spivak, Esq., counsel for petitioner/plaintiff Leonardo Brackett (“petitioner”), for Reargument on petitioner’s application for an emergency stay of removal. pursuant to Local Rule 7.1(g); and the respondents/defendants (“respondents”), by way of their attorney, Christopher J. Christie. United States Attorney (Assistant U.S. Attorney Thomas R. Calcagnt, appearing), having opposed the Motion for Reargument; and the Court having fully considered the submissions of both parties; and for good cause shown: IT IS on this 7th day of October, 2003. ORDERED that petitioner’s Motion for Reargument is hereby DENIED. All Citations Not Reported in F.Supp.2d, 2003 WL 22303078 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 10 of 25 PageID: 785 Exhibit C Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 11 of 25 PageID: 786 Carmichael v. Everson, Not Reported in F.Supp.2d (2004) 2004 WL 1587894, 93 A.F.T.R.2d 2004-2682 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Connolly v. Mitsui O.S.K. Lines (America) Inc., D.N.J., March 1, 2010 2004 WL 1587894 United States District Court, D. New Jersey. Dennis H. CARMICHAEL, Petitioner, v. Mark W. EVERSON, Commissioner Internal Revenue Service; Joan R. Carter, Appeals Officer Internal Revenue Service; in Their Official Capacities Respondents. No. Civ.A. 03–4787(DMC). | May 21, 2004. Attorneys and Law Firms Dennis H. Carmichael, Rumson, NJ, pro se. Lawrence P. Blaskopf, United States Department of Justice, Washington, DC, Susan J. Steele, United States Attorney’s Office, Newark, NJ, for Respondents. OPINION CAVANAUGH, J. *1 This matter comes before the Court on Petitioner Dennis H. Carmichael’s motion for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and Local Rule 7.1(g), of this Court’s January 27, 2004 Opinion and Order. This motion was decided without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Civil Rule 7.1(g). After careful review of the parties’ submissions and based upon the following, Plaintiff’s motion for reconsideration is denied. BACKGROUND On January 27, 2004, this Court denied Plaintiff Dennis H. Carmichael’s petition for a writ of mandamus ordering respondents to provide him with a Collection Due Process Hearing with witnesses and the opportunity to record the hearing. On February 3, 2004, Carmichael filed a motion for reconsideration of the January 27, 2004, Order and Opinion pursuant to Local Civil Rule 7.1(g), and filed a second motion for reconsideration on February 19, 2004. The facts in this matter are described in detail in this Court’s January 27, 2004, Opinion. Dennis H. Carmichael v. Mark W. Everson, Commissioner Internal Revenue Service, et al., Civil Action No. 03–4787 (D.N.J. January 27, 2004). ANALYSIS Local Rule 7.1(g) requires the moving party to “set forth concisely the matters or controlling decisions which counsel believes the [court] has overlooked.” L. Civ. R. 7.1(g). A motion under Rule 7.1(g) may be granted if: (1) “an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice.” Database America, Inc. v. Bellsouth Advertising & Pub. Corp., 825 F.Supp. 1216, 1220 (D.N.J.1993); North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995). Relief by way of a motion for reargument is “an extraordinary remedy” that is to be granted “very sparingly.” See NL Indus. Inc. v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J.1996); Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J.1986). Local Rule 7.1(g) governing reconsideration does not contemplate a recapitulation of arguments considered by the court before rendering its decision. See Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D.N.J.1992), aff’d, 37 F.3d 1485 (3d Cir.1994); Carteret Sav. Bank, F.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J.1989). Rather, the rule permits a reconsideration only when “dispositive factual matters or controlling decisions of law” were presented to the court but were overlooked. See Resorts Int’l v. Great Bay Hotel and Casino, 830 F.Supp. 826, 831 (D.N.J.1992); Khair v. Campbell Soup Co., 893 F.Supp. 316, 337 (D.N.J.1995). In sum, it is improper on a motion for reconsideration to “ask the Court to rethink what it had already thought through—rightly or wrongly.” Oritani Sav. & Loan Ass’n v. Fidelity & Deposit Co., 744 F.Supp. 1311, 1314 (D.N.J.1990). *2 Here, Petitioner Carmichael has failed to meet the burden imposed upon him by Local Rule 7.1(g). In his two motions for reconsideration, Carmichael does not suggest that an intervening change in the controlling law Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 12 of 25 PageID: 787 Carmichael v. Everson, Not Reported in F.Supp.2d (2004) 2004 WL 1587894, 93 A.F.T.R.2d 2004-2682 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 has occurred. Furthermore, while Carmichael contests the date upon which he received his Notice of Intent to Levy from the Internal Revenue Service, he fails to present any evidence not previously available—he simply reiterates his arguments made in his initial petition. Finally, Carmichael does not point to any clear error of law or manifest injustice to compel this Court to reconsider its prior ruling. Indeed, Carmichael’s motions for reconsideration basically reiterate the arguments that Mr. Carmichael has made in his initial Petition and in his Opposition to Respondents’ Motion to Dismiss. Carmichael also complains of ths Court granting Respondents’ Motion to Dismiss “with no orals or appearances,” but Fed.R.Civ.P. 78 clearly provides the Court with the power to determine “motions without oral hearing upon brief written statements of reasons in support and opposition.” These briefs were provided by both Petitioner and Respondents. It was upon those briefs that this Court made is decision as reflected in the January 27, 2004, Opinion and Order. It appears here that Petitioner Carmichael, apparently dissatisfied with this Court’s decisions, wishes to once again posit his arguments. Petitioner has failed, however to indicate any intervening change in the controlling law, new evidence, or clear error of law or manifest injustice. Without more, Petitioner’s motion for reconsideration cannot be granted. CONCLUSION For the foregoing reasons, Petitioner Dennis M. Carmichael’s motions for reconsideration of this Court’s Opinion and Order of January 27, 2004, is denied. ORDER This matter coming before the Court on the motions for reconsideration filed by Petitioner Dennis H. Carmichael on February 3, 2004, and February 19, 2004 pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and Local Rule 7.1(g), of this Court’s January 27, 2004, Opinion and Order, this Court having carefully reviewed all submissions, and for the reasons set forth in this Court’s Opinion filed on this day; IT IS on this 21th day of May, 2004, ORDERED that Petitioner’s February 3, 2004 Motion for Reconsideration is denied; and it is further ORDERED that Petitioner’s February 19, 2004 Motion for Reconsideration is denied. All Citations Not Reported in F.Supp.2d, 2004 WL 1587894, 93 A.F.T.R.2d 2004-2682 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 13 of 25 PageID: 788 Exhibit D Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 14 of 25 PageID: 789 Connolly v. Mitsui O.S.K. Lines (America) Inc., Not Reported in F.Supp.2d (2010) 2010 WL 715775 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2010 WL 715775 Only the Westlaw citation is currently available. This decision was reviewed by West editorial staff and not assigned editorial enhancements. NOT FOR PUBLICATION United States District Court, D. New Jersey. Jean Colasurdo CONNOLLY, Plaintiff, v. MITSUI O.S.K. LINES (AMERICA) INC., Defendant. Civil Action No. 04-5127 (JLL). | March 1, 2010. Attorneys and Law Firms Peter J. Cresci, Esq. (Cresci & Black LLC), for the Plaintiff. Ana P. Ventry, Esq. (Nixon Peabody LLP), for the Defendant. OPINION LINARES, District Judge. *1 This matter comes before the Court on the motion for reconsideration [CM/ECF # 85] filed by Defendant Mitsui O. S.K. Lines (America) Inc. (“Mitsui” or “Defendant”) on October 6, 2009. No oral argument was heard. Fed.R.Civ.P. 78. To briefly summarize the facts of this case, Plaintiff Jean Colasurdo Connolly (“Plaintiff” or “Connolly”) was an employee of Mitsui for approximately 11 years. While at Mitsui, she eventually came under the supervision of a manager named Paul DeLuca (“DeLuca”). There were many incidents of friction between the two, but the issues in this matter have been pared down to a change in Connolly’s schedule implements by DeLuca, which caused her workday to shift by half an hour and an alleged comment made by DeLuca concerning Connolly’s age in conjucntion with the change in schedule. This Court granted partial summary judgment to Mitsui, but allowed certain New Jersey state law claims to survive summary judgment; the instant motion for reconsideration by Mitsui seeks a complete grant of summary judgment against Connolly. Mitsui asserts that reconsideration should be granted on this Court’s Opinion of September 21, 2009, because the Plaintiff’s remaining claims under the New Jersey Law Against Discrimination (“NJLAD”) are time-barred, and the change in Plaintiff’s hours did not constitute an adverse employment action. I. Legal Standard Federal Rule of Civil Procedure 59(e) provides that a party may file a motion with the Court to alter or amend a judgment within ten days of the entry of the judgment. Local Civil Rule 7.1(i) states that a motion for reconsideration “setting forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked” may be filed within ten business days after entry of an order. L.Civ.R. 7.1(i).1 Reconsideration, however, is an extraordinary remedy and should be granted “very sparingly.” See L.Civ.R. 7.1(i) cmt.6(d); see also Fellenz v. Lombard Investment Corp., Nos. 04-3993, 04-5768, 04-3992, 04-6105, 2005 WL 3104145, at *1 (D.N.J. Oct.18, 2005) (citing Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J.1986)). The motion may not be used to re-litigate old matters or argue new matters that could have been raised before the original decision was reached. See, e.g., P. Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp 2d 349, 352 (D.N.J.2001). 1 This rule was previously Local Civil Rule 7.1(g). There are three grounds for granting a motion for reconsideration: (1) an intervening change in controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. See, e.g., Carmichael v. Everson, No. 03-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004); Brackett v. Ashcroft, No. Civ. 03-3988, 2003 WL 22303078, at *2 (D.N.J. Oct. 7, 2003). II. Discussion This Court first notes that Mitsui’s motion was not timely filed. The motion for reconsideration was filed on October 6, 2009, eleven days after the filing of this Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 15 of 25 PageID: 790 Connolly v. Mitsui O.S.K. Lines (America) Inc., Not Reported in F.Supp.2d (2010) 2010 WL 715775 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Court’s Opinion. Motions for reconsideration must be filed within ten days of the Opinion to be reconsidered. L. Civ. R. 7.1(i). Despite the defect in this motion’s timeliness, however, this Court chooses to exercise its discretion in applying the rules and will address its merits. A. Statute of Limitations *2 This Court finds that the arguments concerning the 2-year statute of limitations on NJLAD claims advanced by Mitsui is not one that Mitsui raised in its summary judgment motion. Mitsui did previously assert that Plaintiff’s federal claims were time-barred, and this Court so found. (Op. of Sept. 21, 2009 at 12, 15.) Mitsui did not, however, raise the issue of the NJLAD statute of limitations in its summary judgment motion, although such an argument would have been appropriate at that time. See Chainey v. Street, 523 F.3d 200, 209 (3d Cir.2008) (statute of limitations can be waived in not raised at appropriate time). But see Eddy v. Virgin Islands Water and Power Auth., 256 F.3d 204, 210 (3d Cir.2001) (holding that affirmative defenses may be raised belatedly if court determines that defendant used reasonable diligence and the plaintiff will not suffer prejudice). This Court finds, therefore, that Mitsui’s statute of limitations arguments on the NJLAD claims are beyond the scope of the instant motion for reconsideration. P. Schoenfeld Asset Mgmt., L.L.C., 161 F.Supp.2d at 352. Mitsui’s argument concerning this Court’s failure to dismiss the hostile work environment claim is essentially the same as the NJLAD statute of limitations argument, framed as a failure of this Court to examine the factual record correctly. Despite the similarity in the argument to that disposed of supra, this Court finds that it is appropriate to reexamine the summary judgment record in order to determine whether or not the undisputed evidence presented is as Mitsui maintains-that there is no dispute that the change in Connolly’s hours and the statement by DeLuca occurred in 2002, and that Connolly’s NJLAD claims are thereby time-barred. This Court finds the record to show that the date of Connolly’s schedule change is a disputed material fact, and that the statute of limitations does not operate to bar her claims on summary judgment. In Connolly’s deposition testimony, she claims that the change in her schedule was contemporaneous with DeLuca’s statement that she was old and had nothing better to do at night. (Ventry Dec., Ex. A at 65:6 to 66:22.) In her deposition testimony, Connolly was unable to remember the date of the change in her schedule, but she does maintain that the change and DeLuca’s statement about her age were contemporaneous. (Id.) Her deposition testimony indicates that the statement could have occurred in 2001, 2002, or 2003. (Id.) In response to Mitsui’s motion for summary judgment, Connolly provided an affidavit in addition to her deposition testimony. (Pl.Opp.Ex. O). In that affidavit, Connolly asserts that her schedule was changed in June 2003. (Id. ¶¶ 22, 27.) This Court finds that although Connolly appears to have better remembered the date of her schedule change after her deposition, this change in position is not sufficiently contradictory to require the application of the sham affidavit doctrine. See Baer v. Chase, 392 F.3d 609, 623-24 (3d Cir.2004) (holding that affidavits contradictory to deposition testimony may be ignored at summary judgment depending on circumstances). *3 Taking the facts in the light most favorable to Connolly, it is not certain from the record when Connolly’s hours were changed, but they could have been changed as late as June 2003, within the two year statute of limitations for NJLAD claims. Roa v. Roa, 200 N.J. 555, 985 A.2d 1225, 1231 (N.J.2010). The finder of fact at trial will have to make a credibility determination as to whose testimony they believe. This Court, therefore, finds that reconsideration shall not be granted to with respect to the NJLAD statute of limitations. B. Adverse Employment Action Mitsui argues strenuously that the half-hour shift in Connolly’s working hours, requiring her to commute during rush hour after the change was made, cannot suffice as an adverse employment action. In Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 787-88 (3d Cir.1998), the Third Circuit Court of Appeals held that an assignment to a “punishment shift[ ]” that decreased an employee’s free time on the job and required occasional weekend work constituted an adverse employment action. The Court of Appeals found that “relatively mild” changes to the terms and conditions of an employee’s employment could suffice as an adverse action, including changing a person’s hours to line up with typical daytime working hours. 162 F.3d at 788-89. Here, Connolly’s working hours were altered, changing a favorable commuting arrangement to one that was less favorable. Although this Court would certainly characterize such a change as “relatively mild,” Mondzelewski emphasizes that the inquiry is one of whether or not a trial is warranted it required the plaintiff only to “produce[ ] evidence that raises a genuine issue as to whether [the employer] altered his terms, conditions or privileges of employment.” Id. at 788. This Court finds that the change in Connolly’s work hours, when seen in Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 16 of 25 PageID: 791 Connolly v. Mitsui O.S.K. Lines (America) Inc., Not Reported in F.Supp.2d (2010) 2010 WL 715775 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 conjunction with her supervisor’s statement about her age, could be seen by a reasonable jury as a punishment shift change under Mondzelewski. The additional caselaw presented by Mitsui is distinguishable for several reasons. First, none of the cases are new law, nor do any constitute binding precedent unexamined by this Court on the prior motion. As they fall into neither category, this Court finds that they demonstrate no clear error of law. Carmichael, No. 03-4787, 2004 WL 1587894, at *1. Second, they are distinguishable. DiCampli v. Korman Cmtys, 257 F. App’x 497, 501 (3d Cir.2007) (unreported), examines a retaliation claim under the FMLA where an employee was reassigned to a different position in a different location; Connolly, like the plaintiff in Mondzelewski, did not have her position changed, and thus DiCampli is factually distinguishable on that basis. Similarly, in Grande v. State Farm Mutual Automobile Ins. Co., 83 F. Supp 2d 559, 563-54 (E.D.Pa.2000), a change in working hours accompanied with a transfer of position was found to be an insufficient impact on the terms and conditions of employment to constitute an adverse employment action under Pennsylvania law. The remainder of the additional cases cited by Mitsui are also transfer cases. See Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir.1998) (transfer increased commuting time); Robinson v. BT Financial Corp., No. 01-574, 2003 WL 288402, *4-5 (W.D.Pa. Feb.11, 2003) (lateral transfer not an adverse employment action). *4 The transfer cases differ from Connolly’s in that she was singled out by DeLuca to have her schedule changed in a negative manner without being demoted or transferred to another location. In Connolly’s case, as in Mondzelewski, her job remained the same while her hours were changed to a less desirable schedule. While the action against her might be “relatively mild,” to use the language of Mondzelewski, this Court cannot say that under the circumstances presented here that a reasonable jury could not find that the facts support an adverse employment action as part of Connolly’s prima facie case under the NJLAD, and reconsideration is therefore denied on that basis. CONCLUSION For the reasons set forth above, this Court finds that Defendant’s motion for reconsideration is denied. An appropriate order accompanies this Opinion. All Citations Not Reported in F.Supp.2d, 2010 WL 715775 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 17 of 25 PageID: 792 Exhibit E Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 18 of 25 PageID: 793 Dubler v. Hangsterfer’s Laboratories, Not Reported in F.Supp.2d (2012) 2012 WL 1332569 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 1332569 Only the Westlaw citation is currently available. NOT FOR PUBLICATION United States District Court, D. New Jersey. Andrew DUBLER, Plaintiff, v. HANGSTERFER’S LABORATORIES, et al., Defendants. Civil No. 09–5144 (RBK/JS). | April 17, 2012. Attorneys and Law Firms Charles A. Ercole, Carianne Patricia Torrissi, Gianna M. Karapelou, Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, Cherry Hill, NJ, Robert Anthony McKinley, Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, Philadelphia, PA, for Plaintiff. David M. Walsh, John M. Nolan, Jackson Lewis, LLP, Morristown, NJ, for Defendants. ORDER ROBERT B. KUGLER, District Judge. *1 THIS MATTER having come before the Court pursuant to the motion by Plaintiff Andrew Dubler (“Plaintiff”) for reconsideration of this Court’s Opinion and Order dated March 5, 2012 (Doc. No. 105); and the Court having considered the parties’ submissions; IT IS HEREBY ORDERED that, for the reasons stated in the Court’s accompanying Opinion, the Court DENIES Plaintiff’s Motion for Reconsideration (Doc. No. 105); and IT IS HEREBY FURTHER ORDERED that a certification for interlocutory appeal shall not issue; and IT IS HEREBY FURTHER ORDERED that final judgment pursuant to Fed.R.Civ.P. 54(b) shall not be entered as to Plaintiff’s CEPA claim; and IT IS HEREBY FURTHER ORDERED that this matter shall not be stayed. OPINION This matter comes before the Court pursuant to the motion by Plaintiff Andrew Dubler (“Plaintiff”) for reconsideration of this Court’s Opinion and Order dated March 5, 2012 (the “Opinion”). As set forth in the Court’s prior Opinion, Plaintiff brought claims against Hangsterfer’s Laboratories, Hangsterfer’s Laboratories Severance Plan, Ann Jones, and Beth Jones Sheehan (“Defendants”), claiming violations of the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.S.A. § 34:19–2(e) (Count I), wrongful discharge (Count II), failure to pay severance and benefits in violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1002 (Count III), violation of the New Jersey Wage Payment Law (“WPL”), N.J. S.A. § 34:11–4.1 (Count IV), and breach of express or implied contract (Count V). Defendant subsequently moved for summary judgment as to all counts in Plaintiff’s Complaint. The Court, in the Order dated March 5, 2012, granted summary judgment to Defendant as to all counts except for Plaintiff’s ERISA claim (Count III). For the reasons discussed below, the Court denies Plaintiff’s motion for reconsideration, Plaintiff’s request for certification of interlocutory appeal, Plaintiff’s request for entry of final judgment pursuant to Rule 54(b), and Plaintiff’s motion to stay. I. LEGAL STANDARD1 1 The underlying facts in this case have been set forth in the Court’s Opinion dated January 26, 2012 and are incorporated by reference herein. Motions for reconsideration are not expressly recognized in the Federal Rules of Civil Procedure. See United States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J.1999). Generally, a motion for reconsideration is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e), or as a motion for relief from judgment or order under Federal Rule of Civil Procedure 60(b). See id. In the District of New Jersey, Local Civil Rule 7.1(i) governs motions for reconsideration. See Byrne v. Calastro, No. 05–68, 2006 U.S. Dist. LEXIS 64054, at *7, 2006 WL 2506722 (D.N.J. Aug. 28, 2006). Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 19 of 25 PageID: 794 Dubler v. Hangsterfer’s Laboratories, Not Reported in F.Supp.2d (2012) 2012 WL 1332569 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Local Civil Rule 7.1(i) permits a party to seek reconsideration by the Court of matters which the party “believes the Judge or Magistrate Judge has overlooked” when it ruled on the motion. See L. Civ. R. 7.1(i). “The standard for [reconsideration] is high, and reconsideration is to be granted only sparingly.” United States v. Jones, 158 F.R.D. 309, 314 (D.N.J.1994). The movant has the burden of demonstrating either: “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995)). “The word ‘overlooked’ is the operative term in the Rule.” Bowers v. NCAA, 130 F.Supp.2d 610, 612 (D.N.J.2001) (citation omitted); Compaction Sys. Corp. ., 88 F.Supp.2d at 345. The Court will grant a motion for reconsideration only where it overlooked a factual or legal issue that may alter the disposition of the matter. See Compaction Sys. Corp., 88 F.Supp.2d at 345; see also L. Civ. R. 7.1(i). *2 Ordinarily, a motion for reconsideration may address only those matters of fact or issues of law that the parties presented to, but were not considered by, the court in the course of making the decision at issue. See Student Pub. Interest Grp. v. Monsanto Co., 727 F.Supp. 876, 878 (D.N.J.), aff’d, 891 F.2d 283 (3d Cir.1989). Thus, reconsideration is not to be used as a means of expanding the record to include matters not originally before the court. See Bowers, 130 F.Supp.2d at 613; Resorts Int’l. v. Great Bay Hotel and Casino, Inc., 830 F.Supp. 826, 831 & n. 3 (D.N.J.1992); Egloff v. New Jersey Air Nat’l Guard, 684 F.Supp. 1275, 1279 (D.N.J.1988). Absent unusual circumstances, a court should reject new evidence that was not presented when the court made the contested decision. See Resorts Int’l, 830 F.Supp. at 831 n. 3. A party seeking to introduce new evidence on reconsideration bears the burden of first demonstrating that the evidence was unavailable or unknown at the time of the original decision. See Levinson v. Regal Ware, Inc., No. 89–1298, 1989 U.S. Dist. LEXIS 18373, at *2 (D.N.J. Dec. 1, 1989). Moreover, L. Civ. R. 7.1(i) does not allow parties to restate arguments that the court has already considered. See G–69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J.1990). Thus, a difference of opinion with the court’s decision should be dealt with through the normal appellate process. See Bowers, 130 F.Supp.2d at 612 (citations omitted); Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159, 162 (D.N.J.1988); see also Chicosky v. Presbyterian Med. Ctr., 979 F.Supp. 316, 318 (D.N.J.1997); NL Indus., Inc. v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J.1996) (“Reconsideration motions ... may not be used to re-litigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.”). In other words, “[a] motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple.” Tischio v. Bontex, Inc., 16 F.Supp.2d 511, 533 (D.N.J.1998) (citation omitted). II. DISCUSSION A. Motion for Reconsideration Plaintiff brings his motion for reconsideration based on the alleged “need to correct a clear error of law or fact or to prevent manifest injustice.” As discussed below, the Court finds that there is no clear error of law or fact in the March 5, 2012 Opinion, and that reconsideration is not necessary to prevent manifest injustice in this case. Therefore, the Court denies Plaintiff’s motion for reconsideration. 1. Whether Plaintiff had Established a Prima Facie CEPA Claim Plaintiff first argues that this Court’s prior finding that “the amount of elapsed time between Plaintiff’s alleged whistle-blowing activity and the employer’s adverse action under CEPA does not permit an inference of causation in the prima facie stage” constitutes a clear error of law. Pl. br. at 5 (quoting Opinion at 6–7). Plaintiff argues that he was not given a chance to prove a causal connection between the alleged whistleblower activity and the alleged retaliatory activity because the Court found that the intervening two-year period precluded Plaintiff’s claim. To the contrary, the Court made no such holding. Instead, a reading of the text of the March 5, 2012 Opinion reveals that the Court found that the two-year period did not allow a reasonable inference to be drawn in favor of Plaintiff, who had the burden to establish a prima facie CEPA claim, on the issue of causation. The Court found that Plaintiff needed to provide more than evidence of temporal proximity in this case to establish a prima facie case. The Court further found that Plaintiff’s promotion to the position of General Manager in the intervening two-year period further counseled against an inference of causation. Therefore, the Court does not find any clear error of law in the Court’s prior discussion regarding the existence of a prima facie CEPA claim in this case. Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 20 of 25 PageID: 795 Dubler v. Hangsterfer’s Laboratories, Not Reported in F.Supp.2d (2012) 2012 WL 1332569 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 2. Whether the Court Held that Plaintiff’s “Cat’s Paw” Theory of Liability was not Valid *3 Plaintiff next argues that the Court held that Plaintiff’s “Cat’s Paw” theory of liability in Plaintiff’s CEPA claim was not valid. Pl. br. at 7. The Court finds that it did not make such a holding. Plaintiff’s “Cat’s Paw” theory centered on the August 2, 2009 breakfast meeting in which Plaintiff claims that Ann Jones, Ed Jones, and Beth Jones discussed Plaintiff in a negative way. Pl. br. at 8. The Court notes that in the prior Opinion, the Court considered Plaintiff’s claim in the context of whether Plaintiff was able to demonstrate that Defendant’s proffered reasons for termination were pretextual. The Court found that despite Plaintiff’s allegations, it was apparent that “in the context of the record as a whole, the chronology of events does not provide substantial support for [Plaintiff’s] position.” Opinion at 7–8 (quoting Thomas v. Hammonton, 351 F.3d 108, 114 (3d Cir.2003)). Accordingly, the Court found that Plaintiff had failed to sufficiently establish pretext with respect to Defendant’s proffered reasons for termination. The Court finds that Plaintiff has already argued the “Cat’s Paw” theory in Plaintiff’s original opposition brief, and that Plaintiff is not permitted to reargue this issue in the instant motion for reconsideration. 3. Whether the Court Considered Plaintiff’s Subsequent Attempts to Blow the Whistle Plaintiff finally argues that the Court ignored Plaintiff’s subsequent attempts to blow the whistle in November 2007 and February 2008. The Court notes that the prior Opinion specifically found that Plaintiff had been promoted to General Manager of Hangsterfer’s in August 2008. Moreover, Plaintiff was not terminated until August 2009, over one year after Plaintiff’s promotion. Opinion at 2–3. The Court found that because Plaintiff’s promotion occurred after Plaintiff’s alleged attempts to “blow the whistle” on the allegedly stolen formula, and because Plaintiff was not terminated for a lengthy period of time after Plaintiff’s promotion, that Plaintiff had failed to make a sufficient showing that Defendant’s proffered reasons for termination were pretextual. Id. at 7–8. Accordingly, the Court finds that Plaintiff has not shown that the Court made a clear error of fact. Therefore, Plaintiff’s motion for reconsideration must be denied. 4. Plaintiff’s Application for Certification for Interlocutory Appeal Plaintiff next requests that this Court certify this case for interlocutory appeal. Interlocutory appeal may be certified when the pertinent order “involves a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Plaintiff argues that this Court’s holding that a two year lapse in time between a whistleblowing activity and an adverse employment action is fatal to a CEPA claim. Pl. br. at 11. As discussed above, the Court finds that it did not make such a holding in the prior Opinion. See discussion supra Part II.A. Therefore, the Court finds that the Court’s March 5, 2012 Order may not be certified for interlocutory appeal since it does not satisfy the requirements of 28 U.S.C. § 1292(b). 5. Plaintiff’s Request that Final Judgment be Entered as to the CEPA Claim *4 Plaintiff requests that this Court enter final judgment as to Plaintiff’s CEPA claim pursuant to Federal Rule of Civil Procedure 54(b), which states: When an action presents more than one claim for relief—whether as a claim, counterclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. This Court undertakes a two-step analysis to determine whether final judgment should be entered pursuant to Rule 54(b). “First, ‘finality’ must be satisfied, ‘in the sense that [the judgment] is an ultimate disposition of an individual claim entered in the course of a multiple claims action.’ ” Kapossy v. McGraw–Hill, Inc., 942 F.Supp. 996, 999 (1996) (internal quotations omitted). Next, “the court must determine that the matter is ‘ready for appeal ... tak[ing] into account judicial administrative interests as well as the equities involved.’ ” Id. Applying this two-step analysis, the Court finds that Plaintiff’s CEPA claim is an individual claim separate and distinct from Plaintiff’s pending ERISA claim. As Plaintiff notes, separate recovery is possible on each claim. The Court finds that Plaintiff’s CEPA claim was directed at individual members of the Jones family in addition to Hangsterfer’s, and that, if Plaintiff’s CEPA claim were allowed to proceed, Plaintiff would have recovered for different damages on Plaintiff’s CEPA claim as compared to Plaintiff’s ERISA claim. Therefore, Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 21 of 25 PageID: 796 Dubler v. Hangsterfer’s Laboratories, Not Reported in F.Supp.2d (2012) 2012 WL 1332569 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 the Court considers the CEPA claim a separate and distinct claim for purposes of Rule 54(b). The Court nonetheless determines that, “taking into account judicial administrative interests” as well as equitable considerations, Plaintiff’s CEPA claim is not “ready for appeal” at this time. The Court considers several factors in making this determination. Berckeley v. Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 203 (3d Cir.2006). First, the Court finds that the adjudicated and unadjudicated claims are not related, and that the need for review of Plaintiff’s CEPA claim will not be mooted by future developments in the district court. Furthermore, the reviewing court will not be obliged to consider the CEPA claim a second time unless Plaintiff appeals a second time. These three factors counsel in favor of entering final judgment for Plaintiff on the CEPA claim. However, the Court notes that there is a pending counterclaim against Plaintiff, which could result in a set-off against the judgment sought to be made final. Moreover, judicial administrative interests strongly counsel against granting final judgment on Plaintiff’s CEPA claim for purposes of Rule 54(b). Plaintiff further requests that this Court stay the matter pending appeal, which would delay the resolution of Plaintiff’s case and could be prejudicial to Defendants. In addition, Plaintiff may elect to appeal Plaintiff’s pending ERISA claim after trial, which would then require the Third Circuit to hear an appeal of Plaintiff’s ERISA and CEPA claims separately. Piecemeal litigation and appellate practice is disfavored by the Courts. In view of the above considerations, this Court exercises its discretion to deny Plaintiff’s Rule 54(b) request. Plaintiff has the right to appeal his CEPA and/or ERISA claims together, after trial and after final judgment as to all matters in this case. Therefore, the Court finds that there is just reason for delay of Plaintiff’s appeal as to the CEPA claim. *5 The Court declines to prolong the litigation of Plaintiff’s remaining claims in this case. Accordingly, the Court declines to grant Plaintiff’s motion to stay. V. CONCLUSION For the reasons detailed above, the Court denies Plaintiff’s motion for reconsideration. The Court further declines to issue a certification of interlocutory appeal, and declines to enter final judgment pursuant to Rule 54(b) in this matter. The Court denies Plaintiff’s motion to stay. An appropriate order shall enter today. All Citations Not Reported in F.Supp.2d, 2012 WL 1332569 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 22 of 25 PageID: 797 Exhibit F Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 23 of 25 PageID: 798 Tecchio v. U.S. ex rel. Meola, Not Reported in F.Supp.2d (2004) 2004 WL 2827899, 94 A.F.T.R.2d 2004-6818 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2004 WL 2827899 United States District Court, D. New Jersey. Vincent Gerard TECCHIO, Plaintiff, v. UNITED STATES OF AMERICA, Ex. Rel. Linda Meola, Mrs. E. Young, Mr. Rodrigues, Annette Brinkmeier, and John/Jane Does Numbers 1–10, Defendants. No. CIVA 03–1529(SRC). | Oct. 22, 2004. Attorneys and Law Firms Vincent Gerard Tecchio, Howell, NJ, pro se. Pat S. Genis, U.S. Department of Justice Tax Division, Washington, DC, for Defendants. OPINION and ORDER CHESLER, J. *1 This matter comes before the Court upon Plaintiff’s Motion to Amend or Alter the Opinion Dated August 12, 2004 (docket item number 48). For the reasons set forth below, Plaintiff’s request that the Court reconsider its opinion is GRANTED. Motions for Reconsideration are governed by Rule 59(e) of the Federal Rules of Civil Procedure and Local Rule 7.1(g). Rule 59(e) permits a party to move to alter or amend a judgment within ten days of its entry. Fed. R. Civ. Pro. 59(e). Local Rule 7.1(g) allows a party to seek reargument or reconsideration of “matters or controlling decisions which counsel believes the Judge ... has overlooked.” Local Civ. R. 7.1(g) (Lite 2004).1 The “purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). As such, “[a] party seeking reconsideration must show more than a disagreement with the Court’s decision, and ‘recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party’s burden.” ’ G–69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J.1990) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J.1989). Such motions are only “granted where (1) an intervening change in the law has occurred, (2) new evidence not previously available has emerged, or (3) the need to correct a clear error of law or prevent a manifest injustice arises.” P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F.Supp.2d 349, 353 (D.N.J.2001). Further, reconsideration is an “extraordinary remedy” and should be granted only “sparingly” and only when “dispositive factual matters or controlling decisions of law were brought to the court’s attention but not considered.” Id. at 353 (citations omitted). 1 Rule 7.1(g) governs both motions for “reargument” and for “reconsideration,” and those terms are used interchangeably in this context. See Public Int. Research Group v. Yates Industries, 790 F.Supp. 511, 512 n. 1 (D.N.J.1991). In the present case, Plaintiff asks the Court to reconsider its order striking his “Statement of Evidence Pursuant to F.R.A.P. Rule 10(b)(1)(B), 10(b)(2) and 10(c).” In the Court’s August 12, 2004 Opinion and Order, the Court ruled that Plaintiff’s “Statement of Evidence Pursuant to F.R.A.P. Rule 10(b)(1)(B) and 10(c)” was stricken and Plaintiff was bared from including as part of the appellate record anything but “(1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk.” (Order at 2) (quoting Fed. R.App. P. 10(a)). Plaintiff incorrectly concludes in his argument that as part of that order, this Court barred his entire record. Instead, the Court only barred those documents and other materials which were not part of the original record and were outside of the scope of Rule 10(a). Specifically at issue in the present motion are the documents entitled “Plaintiff’s Reply to Defendants Opposition to Plaintiff’s Motion to Amend or Alter the Opinion and Order of September 26, 2003” and “Plaintiff’s Answer to Defendants Motion to Dismiss Plaintiff’s Cross Motion to Strike Defendants Motion to Dismiss and Plaintiff’s Cross Motion for Summary Judgment on Liability.” These documents were marked Exhibits 6 and 7, respectively, in Plaintiff’s “Statement of the Evidence Pursuant to F.R.A.P. Rule 10(b)(1)(B), 10(b)(2) and 10(c)” (“Appellate Record”) submitted to the Third Circuit Court of Appeals. As Defendant correctly states, these documents do not appear on the District Court docket. However, the Court is now convinced that Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 24 of 25 PageID: 799 Tecchio v. U.S. ex rel. Meola, Not Reported in F.Supp.2d (2004) 2004 WL 2827899, 94 A.F.T.R.2d 2004-6818 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 despite this absence, the papers were delivered and file stamped by the Clerk of the Court and should be considered part of the Appellate Record. *2 Although Plaintiff does not attach the file stamped copies of Exhibits 6 and 7 to his present motion, the copies attached to the Appellate Record show a file stamp from the Clerk of the Court. Specifically, Exhibit 6 is file stamped October 24, 2003, and Exhibit 7 is file stamped November 19, 2003. Courtesy originals provided by Plaintiff to the Court at the time of filing confirm the authenticity of these markings. There is no explanation why these papers do not appear on the docket, but the Court is now satisfied that inclusion of Exhibits 6 and 7 as part of the Appellate Record is appropriate. Accordingly, Plaintiff’s Motion for Reconsideration is GRANTED, and it is further ORDERED that Plaintiff may include “Plaintiff’s Reply to Defendants Opposition to Plaintiff’s Motion to Amend or Alter the Opinion and Order of September 26, 2003” in his appellate record; and it is further ORDERED that Plaintiff may include “Plaintiff’s Answer to Defendants Motion to Dismiss Plaintiff’s Cross Motion to Strike Defendants Motion to Dismiss and Plaintiff’s Cross Motion for Summary Judgment on Liability” as part of his appellate record. It is on this 22nd day of October 2004 SO ORDERED. All Citations Not Reported in F.Supp.2d, 2004 WL 2827899, 94 A.F.T.R.2d 2004-6818 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 2:14-cv-05276-MCA-LDW Document 32-1 Filed 01/03/17 Page 25 of 25 PageID: 800 Sharon P. Margello, Esq. Jason W. Isom, Esq. OGLETREE, DEAKINS, NASH SMOAK & STEWART, P.C. 10 Madison Avenue, Suite 400 Morristown, New Jersey 07960 (973) 656-1600 Sharon.Margello@ogletreedeakins.com Jason.Isom@ogletreedeakins.com Attorneys for Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ------------------------------------------------------ VINCENT P. ANDREULA, Plaintiff, v. CAPITAL ONE FINANCIAL CORPORATION, JOHN DOES 1-10, and ABC CORP. 1-10, said names being fictitious Defendants. ------------------------------------------------------ : : : : : : : : : : : : Hon. Madeline Cox Arleo, U.S.D.J. Case No. 2:14-cv-05276-MCA-LDW Civil Action CERTIFICATE OF SERVICE Document Filed Electronically I am an attorney licensed to practice before this Court and not a party to this action. I certify that, on this date, I caused a copy of the following documents: DEFENDANT’S BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION; and CERTIFICATION OF JASON W. ISOM, ESQ. to be filed with the Clerk of the Court and served in accordance with the Federal Rules of Civil Procedure and/or the District of New Jersey’s Local Rules and/or the District of New Jersey’s Rules on Electronic Service, which would then electronically notify the following CM/ECF participants on this case: Case 2:14-cv-05276-MCA-LDW Document 32-2 Filed 01/03/17 Page 1 of 2 PageID: 801 -2- Ronald J. Wronko, Esq. LAW OFFICES OF RONALD J. WRONKO, LLC 134 Columbia Turnpike Florham Park, New Jersey 07932 Attorneys for Plaintiff The above listed documents are available for viewing and downloading from the ECF system. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements are willfully false, I am subject to punishment. By: /s/ Jason W. Isom Jason W. Isom, Esq. Dated: January 3, 2017 28222462.1 Case 2:14-cv-05276-MCA-LDW Document 32-2 Filed 01/03/17 Page 2 of 2 PageID: 802