Opinion
Adv. Proc. No. 09-1236 (MBK).
April 21, 2010
Richard D. Trenk, Esq., Trenk, DiPasquale, Webster, Della Fera Sodono, P.C., Attorney for Plaintiff Thorson, LLC and Third Party Defendants Parkinson Technologies and Ernest Abrahamson, West Orange, NJ.
Stuart G. Brecher, Esq., Law Offices of Stuart G. Brecher, LLC, Co-counsel for Defendants/Third-Party Plaintiffs J.A. Mulligan Associates, LLC and John A. Mulligan, Denville, NJ.
Jay Webber, Esq., The Law Firm of Jay Webber, Co-counsel for Defendants/Third-Party Plaintiffs J.A. Mulligan Associates, LLC and John A. Mulligan, Morristown, NJ.
Michael Naughton, Esq., Wilson, Elser, Moskowitz, Edelman Dicker, Special Counsel to Defendants J.A. Mulligan Associates, LLC and John A. Mulligan, Newark, NJ.
Ben Becker, Esq., Becker, Meisel LLC, Attorney for Charles M. Forman, Esq., Chapter 7 Trustee of John Dusenbery Company, Inc., Livingston, NJ.
To: All Counsel on Attached List via Regular Mail
Dear Counsel:
I have reviewed the various submissions of counsel with respect to the Motion for Reconsideration of the Court's February 24, 2010 Order, granting in part and denying in part Summary Judgment and denying Motion to Amend Counterclaim and Third Party Complaint filed by Defendants/Third Party Plaintiffs J.A. Mulligan Associates, LLC and John A. Mulligan. For the reasons expressed below, the Motion for Reconsideration is denied.
"Motions for reconsideration are extraordinary means of relief and should be granted sparingly." Stivala Invs., Inc. v. Atl. Nat'l Trust LLC, 394 B.R. 778, 780 (Bankr. M.D. Pa. 2008); Lonv. v. E.I. Du Pont de Nemours Co., 935 F.2d 604, 608 (3d Cir. 1991). As such, reconsideration should be granted only in three limited instances: (1) an intervening change in law; (2) the availability of new, material evidence; or (3) the need to correct an error of law or prevent a manifest injustice. Stivala, 394 B.R. at 780. Put differently, "a motion for reconsideration will not be used as a vehicle to reargue the motion or to present evidence which should have been raised before." In re Christie, 222 B.R. 64, 67-68 (Bankr. D.N.J. 1998).
Here, none of the three grounds have been sufficiently satisfied so as to warrant reconsideration. Initially, Defendants cannot point to a case which would constitute an intervening change in law. The Court's decision to deny the Motion to Amend was based on Judge Brown's holding in SC Holdings, Inc. v. A.A.A. Realty Co., 1996 U.S. Dist. LEXIS 12428 (D.N.J. Aug. 19, 1996). Although Defendants urge that state courts do not follow Judge Brown's reasoning in SC Holdings, when requested to do so by the Court, Defendants were unable to provide a decision that would overrule the precedential nature of SC Holdings, or even take issue with its holding.
Therefore, Defendants cannot satisfy the first standard for reconsideration.
Similarly, Defendants have failed to show the existence of new, material evidence not available at the time the original motion was heard. With respect to this prong, the burden is on Defendants to show that the newly discovered evidence warrants reconsideration. Christie, 222 B.R. at 68. Not only was the evidence put forth by Defendants (pertinently, the initiation of litigation against Defendants arising from the property at issue) not newly discovered, but it is not material in that such facts have no bearing on the instant dispute, as Defendants have yet to be found liable for a sum certain for remediation.
As such, the Court denies the Motion for Reconsideration. In doing so, the Court does not leave Defendants without an avenue of recourse in the future. Under SC Holdings, once Defendants incur losses for remediation efforts and the claim becomes one of contribution, they are entitled to pursue remedies under the N.J. Spill Act in state court.
UNITED STATES BANKRUPTCY COURT
District of New Jersey MLK Jr Federal Building 50 Walnut Street Newark, NJ 07102 In Re: John Dusenbery Company, Inc. and Asset Sales, Inc. Debtor Case No.: 08-25034-RG Chapter 7 Thorson, LLC Plaintiff v. J.A. Mulligan Associates, LLC Defendant Adv. Proc. No. 09-01236-MBK Judge: Michael B. KaplanNOTICE OF JUDGMENT OR ORDER Pursuant to Fed.R.Bankr.P. 9022
Please be advised that on April 21, 2010, the court entered the following judgment or order on the court's docket in the above-captioned case:Document Number: 60 — 43
Letter Opinion (related document: [43] Motion to Reconsider (related document: [38] Order on Motion For Summary Judgment, Order on Cross Motion) filed by 3rd Party Plaintiff John A. Mulligan, 3rd Party Plaintiff J.A. Mulligan Associates, LLC, Defendant J.A. Mulligan Associates, LLC). The following parties were served: Plaintiff's Attorney, Defendant's Attorney, Attorney for Third Party Plaintiff, Special Counsel to Defendants and Attorney for Chapter 7 Trustee. Signed on 4/21/2010. (slf)
Parties may review the order by accessing it through PACER or the court's electronic case filing system (CM/ECF). Public terminals for viewing are also available at the courthouse in each vicinage.