Opinion
Civil Action No.: 98-cv-5186 (JLL).
May 1, 2006
D. Gayle Loftis, Esq., Hackensack, NJ.
Karen F. Desoto, Esq., Jersey City Law Department, Jersey City, NJ.
Leonard Meyerson, Esq., Miller, Meyerson, Schwartz Corbo, Esqs., Jersey City, NJ.
Michael L. Dermody, Esq., Office of the Hudson County Counsel, Jersey City, NJ.
Edward J. Depascale, Esq., McElroy, Deutsch, Mulvaney Carpenter, LLP, Morristown, NJ.
Alexander W. Booth, Esq., Brownstein Booth Associates, Union City, NJ.
John David Lynch, Esq., Union City, NJ.
Carl M. Losito, Esq., Hackensack, NJ.
Carmen E. Mendiola, Esq., Law Offices Carmen E. Mendiola, Jersey City, NJ.
LETTER-OPINION AND ORDER
This matter comes before the Court on the motion of Defendants Hudson County, Hudson County Sheriff's Office and Joseph Cassidy (collectively "Hudson County Defendants") for reconsideration of this Court's January 6, 2006 Opinion and separate Order and/or for clarification pursuant to Local Civil Rule 7.1. Defendant City of Jersey City ("Jersey City") cross-moves for reconsideration. This Court has considered the submissions in support of and in opposition to these motions. These motions are resolved without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure.
It should be noted that by Amended Order entered January 19, 2006, this Court modified its Order dated January 6, 2006 solely with respect to the Court's rulings as applied to former Defendant James Kelly. For purposes of this motion and for the convenience of the parties, however, the Court will make reference to the January 6 Opinion and Order.
BACKGROUND
A detailed factual background of this case is fully set forth in the prior Opinion of this Court dated January 6, 2006. The facts necessary for the instant motion will be recited below as they relate to the moving Defendants' legal arguments.
LEGAL STANDARD
Relief by way of motion for reconsideration is "an extraordinary remedy" that is to be granted "very sparingly."Yurecko v. Port Auth. Trans-Hudson Corp., 279 F. Supp. 2d 606, 608 (D.N.J. 2003); NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996). Motions for reconsideration are governed by Local Civil Rule 7.1(i). This Rule provides, in relevant part:
A motion for reconsideration shall be served and filed within 10 business days after the entry of the order or judgment on the original motion by the Judge or Magistrate Judge. A brief setting forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked shall be filed with the Notice of Motion.
L. Civ. R. 7.1(i). 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), cert. denied, 476 U.S. 1171 (1986); Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 532 (D.N.J. 1998). The moving party 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 Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). 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. P. Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001); NL Indus., 935 F. Supp. at 516; 11 Charles A. Wright, Arthur R. Miller Mary Kay Kane,Federal Practice and Procedure: Civil 2d., § 2810.1 (1995). Mere disagreement with the Court will not suffice to show that the Court overlooked relevant facts or controlling law, United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999), and should be dealt with through the normal appellate process,S.C. ex rel. C.C. v. Deptford Twp. Bd. of Educ., 248 F. Supp. 2d 368, 381 (D.N.J. 2003). Only in circumstances "where matters were overlooked and which, if considered by the Court, might reasonably have resulted in a different conclusion, will the Court entertain such a motion." Bowers v. N.C.A.A., 130 F. Supp. 2d 610, 613 (D.N.J. 2001).
DISCUSSION
A. The Hudson County Defendants
1. Petition Clause Claim
The Hudson County Defendants contend that they are entitled to reconsideration of this Court's January 6 Opinion and Order with respect to the applicability of the Petition Clause of the First Amendment. In the January 6 Opinion, this Court noted: "Since not briefed by the [Hudson County] Defendants, the Court takes no position on any claim based on the Petition Clause of the First Amendment." (January 6 Op. 24 n. 8). The Hudson County Defendants presently contend that the Petition Clause "was addressed in the [summary judgment] motion and in the reply brief." (Hudson County Defs.' Br. in Supp. of Reconsid. 2). This is plainly incorrect. There is no discussion or mention of the Petition Clause or related law in either the Hudson County Defendants' main brief or reply brief submitted in support of summary judgment. As such, the motion for reconsideration is denied insofar as the Hudson County Defendants seek reconsideration of this Court's finding that they failed to address a Petition Clause claim at summary judgment.
The Hudson County Defendants further contend that there is no clear Petition Clause claim asserted against them in either the original or amended pleadings. (Hudson County Defs.' Br. in Supp. of Reconsid. 7). It is settled that a motion for reconsideration may not be used to argue new matters that could have been presented prior to judgment. P. Schoenfeld, 161 F. Supp. 2d at 352; NL Indus., 935 F. Supp. at 516; Polizzi Meats, Inc. v. Aetna Life Cas. Co., 931 F. Supp. 328, 339 (D.N.J. 1996) (the Local Rule "explicitly invites counsel to draw the court's attention to decisions which may have been overlooked by the court, not those which were overlooked by counsel."). These motions should not be used as "an opportunity to argue what could have been, but was not, argued in the original set of moving and responsive papers." Bowers, 130 F. Supp. 2d at 613. Accordingly, the Court need not reach the merits of this argument because it could and should have been raised at the summary judgment stage.
Even if the Court were to address the merits, Defendants' argument on this point still fails. Clearly, Plaintiff has a right to petition the government for redress of grievances under the Petition Clause of the First Amendment. In San Filipo v. Bongiovanni, the Court of Appeals for the Third Circuit noted that the Petition Clause of the First Amendment protects a public employee against retaliation for filing a petition in the nature of a lawsuit or grievance. 30 F.3d 424, 442-43 (3d Cir. 1994). According to the Third Circuit:
[W]hen government-federal or state-formally adopts a mechanism for redress of those grievances for which government is allegedly accountable, it would seem to undermine the Constitution's vital purposes to hold that one who in good faith files an arguably meritorious "petition" invoking that mechanism may be disciplined for such invocation by the very government that in compliance with the petition clause has given the particular mechanism its constitutional imprimatur.Id. at 442. A public employee's claim under the right to petition is not subject to the public concern requirement. Id. at 424;Cooper v. Cape May County Bd. of Soc. Servs., 175 F. Supp. 2d 732, 746 (D.N.J. 2001). Here, the Hudson County Defendants acknowledge that paragraph forty nine of the original Complaint, and paragraphs seventy nine and one hundred and forty nine of the Third Amended Complaint "conceivably" assert claims against them under the Petition Clause. (Hudson County Defs.' Br. in Supp. of Reconsid. 2). Paragraph seventy nine of the Third Amended Complaint provides:
Defendant JCassidy [sic] has shown reckless, deliberate and callous indifference to the federal constitutional rights of Plaintiff by Defendant's engagement in the actions he has undertaken. By his actions he has effectuated or implemented a policy and/or custom which punishes and/or retaliates against sheriff's officers who express grievances or seek access to the courts for grievances the officers have suffered. Such policies or customs of the Defendant have led to the deprivation of the Plaintiff's constitutional rights.
(Am. Compl. ¶ 79). It cannot be reasonably disputed that paragraph 79 of the Third Amended Complaint asserts a Petition Clause claim against the Hudson County Defendants. Plaintiff is clearly alleging that Defendant Cassidy has taken retaliatory action against Plaintiff for seeking access to the courts. Therefore, the Hudson County Defendants' argument that no Petition Clause claim was asserted against them, necessarily fails.
2. Free Exercise Retaliation Claim
The Court now clarifies its January 6 Opinion and Order in connection with Plaintiff's First Amendment free exercise retaliation claims. As the parties are surely aware, there are potentially two separate First Amendment rights implicated in this matter. The first, as already discussed, involves a public employee's right to petition under the First Amendment. The other, concerns Plaintiff's right to freedom of expression with regard to matters of public concern. To be sure, a party's constitutionally protected interest in freedom of expression protects statements by public employees on matters of public concern. Baldassare v. New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001). "[I]t is well established public employers cannot condition public employment on a basis that infringes an employee's constitutionally protected interest in free expression." Swineford v. Snyder County Pa., 15 F.3d 1258 (1994), 1269-70 (3d Cir. 1994) (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 605-06 (1967); Perry v. Sindermann, 408 U.S. 593, 597 (1972)). In the January 6 Opinion and Order, this Court found that the Hudson County Defendants were entitled to summary judgment on Plaintiff's freedom of expression retaliation claim because Plaintiff's communications did not implicate matters of public concern. (January 6 Op. 24).
To be clear, the Hudson County Defendants' arguments in support of summary judgment pertaining to the First Amendment related solely to whether Plaintiff's communications concerned matters of public concern. Their moving brief on summary judgment specifically provided: "In the instant case, Plaintiff's communications were comprised solely of complaints about his perceived treatment in the workplace such as overtime, off duty time, pension errors, parity pay, inferring that he was being called a rat and the like." (Hudson County Defs.' Br. in Supp. of Summ. J. 32). Defendants argued that these communications were not entitled to First Amendment protection since they were "purely personal and of no public interest." (Id.). This Court agreed, finding that Plaintiff's speech, consisting of Plaintiff's complaints to the Hudson County Director of Personnel, was not protected speech as it did not implicate matters of public concern. (January 6 Op. 24). Accordingly, the Hudson County Defendants were granted summary judgment on Plaintiff's First Amendment freedom of expression claim to the extent that is was based on any retaliation for Plaintiff's complaints to the Hudson County Director of Personnel. This Court took no position, however, on a potential free expression retaliation claim based on anything other than these specific communications. The issue of whether Plaintiff's speech beyond these communications was protected speech was not before the Court because the Hudson County Defendants only moved for summary judgment on Plaintiff's free expression claim grounded in Plaintiff's complaints to the Hudson County Director of Personnel. Therefore, to the extent both parties now seek clarification, the Court clarifies its January 6 Opinion and Order: summary judgment was granted to the Hudson County Defendants only as to Plaintiff's First Amendment claim regarding a public employee's protected right in freedom of expression based solely on Plaintiff's communications to the Hudson County Director of Personnel.
3. Municipal and Supervisory Liability Under § 1983
Finally, the Hudson County Defendants maintain that the Court overlooked those portions of their summary judgment briefs that addressed the issue of municipality or supervisory liability. (Hudson County Defs.' Br. in Supp. of Reconsid. 3). They contend that in this Court's January 6 Opinion, the Court found that the Hudson County Defendants failed to brief the issue of municipal or supervisory liability. These Defendants specifically note that "since the court in its opinion indicated that these issues were not briefed, it is contended that the Court has indeed overlooked this law." (Id. at 6). However, even the most cursory reading of the relevant language in the January 6 Opinion reveals that this Court never determined that the issue of municipal or supervisory liability was not briefed by these Defendants. Rather, the January 6 Opinion specifically states: "[T]he Court need not reach the issue of municipal or supervisory liability under § 1983 as to the Defendants at this juncture." (January 6 Op. 10). In the January 6 Opinion, the Court held that the First Amendment free speech retaliation claim and the Fourteenth Amendment due process claim failed as a matter of law as to all the Hudson County Defendants. Since these were the only claims briefed by the Hudson County Defendants in connection with Plaintiff's section 1983 claim, there was thus no need to need to analyze municipal or supervisory liability. Therefore, Defendants' motion for reconsideration on this basis is also denied.
B. The City of Jersey City
As a threshold matter, Plaintiff objects to Defendant Jersey City's cross-motion to reconsider the January 6 decision as untimely. This Court notes that Jersey City's motion fails to satisfy the requirements governing cross-motions under Local Civil Rule 7.1(h), as its current submission does not appear to oppose the Hudson County Defendants' instant motion for reconsideration. Therefore, the Court will treat Jersey City's motion as one for reconsideration. Pursuant to the Local Civil Rules, a motion for reconsideration clearly must be served and filed within ten (10) days of entry. L. Civ. R. 7.1(i). A motion for reconsideration may be denied solely for untimeliness. Morris v. Siemens Components, Inc., 938 F. Supp. 277, 278 (D.N.J. 1996);see also Damiano v. Sony Music Entm't, Inc., 2000 WL 1689081, *4 (D.N.J. Nov. 13, 2000) (holding that a motion for reconsideration was "time barred because it was filed more than ten days after the entry of the order being challenged."). Excluding intermediate weekend days from the calculation of Jersey City's time to file, see Fed.R.Civ.P. 6(a), the filing of the instant motion for reconsideration with the Court on February 3, 2006, was untimely. Jersey City's motion for reconsideration can be denied for this reason alone.
Even if the Court were to address the merits, it is not clear from Defendant Jersey City's letter-brief in support of reargument, under what basis it moves to reconsider this Court's January 6 Opinion. As the Court understands Jersey City's moving papers on reconsideration, Defendant is now asserting that it briefed the issue of municipal and supervisory liability. Curiously, however, this Court did not hold otherwise in its January 6 Opinion. On summary judgment, the Court simply declined to address the issues of municipal and supervisory liability with respect to Jersey City because it had already granted summary judgment on the claims which the Jersey City did fully brief; namely, Plaintiff's Fourteenth Amendment denial of medical attention and access to courts claims. (January 6 Op. 16-17 n. 5). Since the Court found in favor of the Jersey City Defendants on these claims, it did not deem it necessary to address the Jersey City Defendants' arguments regarding municipal or supervisory liability. Accordingly, reconsideration on this ground is denied as Defendants fail to demonstrate that the Court overlooked a relevant fact or controlling law on this point.
CONCLUSION
For the reasons set forth above, it is on this 1st day of May, 2006, hereby:
ORDERED that the motion of Defendants Hudson County, Hudson County Sheriff's Office and Joseph Cassidy for reconsideration and/or clarification [Docket # 147] is DENIED; and it is further
ORDERED that Defendant the City of Jersey City's motion for reconsideration [Docket # 149] is hereby DENIED.
It is so ordered.