Opinion
Civ. Action No. 99-1240(JBS).
Filed: August 2, 2001
John J. Delany, III, Esq., Delany O'Brien, Voorhees, NJ, for Plaintiff.
Jay H. Greenblatt, Esq., Greenblatt Laube PC, Vineland, NJ, for Defendant.
OPINION ON CROSS-MOTIONS FOR RECONSIDERATION
This matter comes before the Court on three separate cross-motions for reconsideration of various aspects of this Court's June 28, 2001 Opinion on the parties' cross-motions for summary judgment. In the June 28th Opinion, the Court found that defendant had failed to adduce any evidence to counter plaintiff's assertion that Ward violated the New Jersey Conscientious Employee Protection Act ("CEPA") when it constructively discharged plaintiff for refusing to perform illegal claims administration work, and accordingly granted partial summary judgment for plaintiff on his CEPA claim. The Court also granted defendant's motion for partial summary judgment to the extent that it sought to extinguish plaintiff's breach of contract and negligent misrepresentation claims. The parties' motions were otherwise denied.
The relevant background facts are discussed in the Court's June 28, 2001 Opinion and are incorporated herein. As previously discussed in connection with plaintiff's CEPA claim, plaintiff Mitchell Worbetz ("Worbetz"), a licensed insurance claims adjuster, joined defendant Ward North America, Inc. ("Ward") in November 1997 in New Jersey. In January 1999 Worbetz was assigned to the "Coregis Account," which mainly involved claims venued in New York. Upon learning of his assignment, Worbetz apparently became concerned about the legality of his new assignment because he believed that Ward did not have a license to adjust insurance cases in New York. After making several inquiries, Mr. Worbetz learned Ward did not have a proper license to adjust claims in New York, and that if he continued to adjust claims on behalf of Ward he could lose his own license and/or face stiff penalties.
Worbetz expressed his concern about the licensing issue to Ward officials on several occasions. He did not receive any guarantee that Ward did have a valid license, and refused to do any further work on the Coregis files. After receiving a memo dated March 9, 1999 from Ward manager Stephen Reilly instructing, among other things, that "All Coregis files must be placed on a workable diary within the next thirty (30) days," and that he would be terminated if this directive was not complied with, (Pl. Ex. I), he accordingly considered himself terminated and left his position at Ward that same day.
A. Reconsideration Standard
Local Civil Rule 7.1(g) requires that a motion for reargument, also called a motion for reconsideration, shall be served within 10 days of the entry of the order or judgment on which reargument is sought. Such motions should be accompanied by a "brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Id. "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.'"Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)). As this Court has stated, "motions for reargument succeed only where a `dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entertainment, 975 F. Supp. 623, 634 (D.N.J. 1996) (JBS) (quoting Pelham v. United States, 661 F. Supp 1063, 1065 (D.N.J. 1987)). Where no facts or cases were overlooked, such a motion will be denied, Egloff v. New Jersey Air Nat. Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts International v. Greate Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992).
If the record was inadequately developed on a particular issue, the court has discretion to reconsider the matter, Hatco Corp. v. W.R. Grace Corp., 849 F. Supp. 987, 990 (D.N.J. 1994), but not to the extent of considering new evidence that was available but not submitted while the motion was pending. Florham Park Chevron, Inc. v. Chevron, USA, Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). In other words, a "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). As the late Chief Judge Gerry noted, "[w]e are in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely."Resorts International, 830 F. Supp. at 831 n. 3. (Emphasis in original). Consequently, only when the matters overlooked might reasonably have resulted in a different conclusion if the court had considered them will the court entertain such a motion.Panna, 760 F. Supp. at 435.
B. CEPA Claim
The defendant has moved the Court to reconsider its finding that defendant Ward violated the New Jersey Conscientious Employee Protection Act ("CEPA") when it constructively discharged Mr. Worbetz. In its June 28th Opinion, the Court noted that defendant's brief raised but a single argument as to why plaintiff's CEPA claim failed, namely, that CEPA protects employees from actual discharge, not constructive discharge. (Op. at 14 (citing Def.'s Opp'n Br. at 3-4).) This argument was contrary to law, as CEPA clearly does protect against constructive discharge. See id. (citing Daniels v. Mutual Life Ins. Co., 340 N.J. Super. 11 (App.Div. 2001)).
The CEPA statute, enacted in 1986 and amended in 1994, provides in relevant part:
An employer shall not take any retaliatory action against an employee because the employee does any of the following: a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law . . .;
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c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . .; (2) is fraudulent or criminal; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
N.J.S.A. 34:19-3.
The Court also noted that, at oral argument on June 6, 2001, defendant's counsel for the first time advanced two new and un-briefed arguments against plaintiff's CEPA claim. (Op. at 15.) First, counsel argued at length that CEPA protects only those who actually report wrongdoing to relevant state authorities (which Worbetz admittedly did not do). As the Court explained in the June 28th Opinion, this argument misreads the CEPA statute, which clearly does protect employees who refuse to participate in illegal activity. Second, counsel asserted that the CEPA claim fails because Worbetz did not have a reasonable belief that working on New York files without a corporate license was unlawful. Defendant offered no evidence whatsoever in support of this second argument, and the uncontradicted evidence of plaintiff included his contacts with New York insurance authorities who confirmed his fears of illegality, and thus defendant failed to create a genuine dispute as to Worbetz's state of mind. The Court concluded that defendant's legal arguments were meritless, and that Worbetz's belief of illegality was reasonable as a matter of law, and that defendant failed to provide sufficient evidence to create a triable issue that Worbetz was not fired on account of engaging in protected activity. The Court accordingly entered partial summary judgment as to defendant's liability for violating CEPA.
Defendant in the present motion argues that the Court should not have granted summary judgment in favor of plaintiff's CEPA claim because there remain genuine issues of material fact as to whether Mr. Reilly, the supervisor who insisted that Worbetz work on the Coregis Account, actually knew about Worbetz's licensing concerns. (Def. Reargument Br. at 8.)
Defendant also has appended to its reconsideration brief two new and previously undisclosed pieces of evidence — a memo from Reilly dated February 22, 1999, and an excerpt from Mr. Silika's deposition. These exhibits were not before the court when the original summary judgment motion was decided and are not properly the basis for a motions for reconsideration. The Court could not have "overlooked" information that was not presented.See Rastelli Bros., Inc. v. Netherlands Ins. Co., 68 F. Supp.2d 448, 450 (D.N.J. 1999). The previously briefed and argued summary judgment motion was not a dress rehearsal for the reconsideration motion.
As defendant admits, Reilly's knowledge was not a prime point of dispute during the last round of motions. (See Def. Reply Br. at 3.) In fact, defendant's entire argument on this point is contained in a two-sentence paragraph on page 4 of its brief in opposition to plaintiff's three summary judgment motions:
Stephen Reilly has testified that he was unaware of any complaints from Mr. Worbetz concerning the alleged impropriety regarding the Coregis files without the proper license. (See T41-7 to T42-9, June 23, 2000 deposition of Stephen Reilly, annexed hereto.) That being so, Mr. Reilly's memorandum could not constitute "retaliation."
(Def. Opp'n Br. at 4.)
The Court finds that it overlooked these two sentences and the referenced page of Reilly's deposition testimony. The great weight of evidence in this case supports plaintiff's position that he complained early and often to Ward management about the licensing issue. For instance, Mr. Worbetz testified at 116:2-21 of his deposition that he discussed the licensing issue with Tom Silika, Ward's Branch Manager, in February, 1999. Barry Stratton, Ward's legal administrator, testified at 37:3-23 of his deposition that he received a memo from Worbetz concerning the New York license in February 1999. In this same memo, Worbetz claims that he had addressed his licensing concerns with Ward Managers Ken Hicks, Jeff Rubinton, and Tom Silika. (Pl. Ex. E.) Mr. Hicks also acknowledged that Worbetz had expressed his concerns about licensing. (Hicks Dep. at 113:6-21.) In view of the admissions of several Ward managers that Worbetz had raised the licensing issue prior to March 1999, a jury may have trouble believing Reilly's assertion that he was unaware of any licensing issues at the time he issued the subject memo.
Nevertheless, because the issue of Reilly's knowledge was only hurriedly discussed in the brief and was not raised at oral argument, the Court overlooked Reilly's assertion that he was unaware of Worbetz's licensing concerns at the time he instructed Worbetz to dedicate himself to the illegal Coregis account activities. In the deposition transcript appended to defendant's original opposition brief, Reilly's testimony was as follows:
Q. Did Mitch Worbetz ever bring to your attention at any time any issues he had concerning whether or not Ward had a valid corporate license?
A. No, he never did.
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Q. Okay so prior to Mr. Worbetz leaving, you had never heard from anyone within Ward that Mr. Worbetz had raised an issue concerning corporate licensing?
A. Definitely not.
Thus, Reilly unequivocally testified that he did not know about Worbetz's licensing concerns at any point prior to March 1999. If a jury decides that Reilly was unaware of Worbetz's licensing complaints, then it may also conclude that Worbetz was constructively discharged because of performance-related concerns rather than over his refusal to work on New York files. Although Reilly's testimony is clear, the fact that Worbetz informed nearly every other Ward decision-maker of his concerns creates a triable issue as to whether Reilly knew of the licensing issue as of March 1999. Based on Reilly's denial of knowledge of Worbetz's licensing concerns, and because this Court overlooked Reilly's testimony in its June 28th Opinion, the Court finds that there remain material disputes of fact that preclude summary judgment on plaintiff's CEPA claim. The Court accordingly grants defendant's motion for reconsideration of this aspect of the Court's summary judgment Opinion and Order in this case. Plaintiff's grant of partial summary judgment upon his CEPA claim in the Order of June 28, 2001 must be vacated, and this claim must be decided by the jury.
C. Fraudulent Inducement Claim
In the June 28th Opinion the Court denied plaintiff's motion for summary judgment in favor of its claim that he was fraudulently induced to come to work for Ward. The Court specifically found that, while defendant's evidence on this point is thin, it cannot be determined as a matter of law that Ward managers Rankin or Hicks intentionally misled Worbetz. The Court also found that there also is a genuine dispute as to whether the promises of GAN work actually induced plaintiff to join Ward.
Plaintiff asks the Court to revisit this ruling, but has not directed the Court's attention to any dispositive factual matter or controlling decision of law that the Court overlooked in reaching its original decision. There is still a genuine dispute as to whether it was the type of work or the compensation that persuaded Worbetz to join Ward as a claims adjuster. Even assuming that Worbetz was induced to join Ward under false pretenses, it is unclear whether he left another job to do so, or was instead unemployed. (Op. at 18-19.) Plaintiff has not pointed to any evidence that the Court overlooked in this regard. Based on the foregoing, the Court finds that there remain material disputes of fact that prevent summary disposition of plaintiff's fraud claim. Accordingly, the Court will deny plaintiff's motion to reconsider the previous ruling on his fraudulent inducement and intentional misrepresentation claims.
D. Negligent Misrepresentation
The plaintiff also asks the Court to reconsider its grant of summary judgment against plaintiff's "negligent misrepresentation" claim. In the June 28th Opinion, the Court observed that plaintiff's negligent misrepresentation claim is a fallback position. "In the event that he is unable to prove that defendant's statements about the GAN contract were knowingly false, then he still would have recourse to a tort cause of action if the statements were negligently made and induced him to join Ward. The Court finds that the facts of this case might support a determination that the contract was voided under the contract doctrines of "mistake" or "impossibility," but not a tort premised on negligently relayed information about a contract between two other parties." (Op. at 24.) Accordingly, the Court granted defendant's motion for summary judgment against plaintiff's negligent misrepresentation claim. Plaintiff now argues that the Court's decision to dismiss the negligent misrepresentation claim was in error, and that the Court overlooked two relevant New Jersey cases.
Plaintiff first points to Berry v. Playboy Enterprises, Inc., 195 N.J. Super. 520 (App.Div. 1984). Although the case was not discussed in the initial summary judgment Opinion, the Court did consider Berry initially, but found it unhelpful. Berry is distinguishable because in that case the Appellate Division court recognized a narrow cause of action for negligent misrepresentation where the employer breached a duty to carefully explain the terms of highly technical and ambiguous healthcare benefits plans to new employees. Id. at 526-27. The present case involves an allegation that "false statements" were made regarding Ward's business association with a third party, GAN, in order to induce Worbetz to join Ward. (Pl. Neg. Misrep. Recon. Br. at 13.) There is no indication that Ward owed plaintiff a duty akin to a responsibility to explain complicated pension and healthcare benefits. A cause of action for the falsehoods allegedly uttered by Ward's representatives sounds in fraud, not negligence, thus the negligent misrepresentation claim was properly dismissed even considering Berry.
Second, plaintiff asks the Court to reconsider in light ofPeck v. Imedia, 293 N.J. Super. 151 (App.Div. 1996), which concerned a promissory estoppel claim. Plaintiff now asserts that a promissory estoppel claim was implicit in his complaint and briefs. Peck was not overlooked, but was not discussed because it is also unhelpful. In Peck, the plaintiff moved from Boston to New Jersey after receiving a job offer, but by the time she arrived in New Jersey, the employer had rescinded it. Id. at 154-59. The Peck court thus recognized a narrow cause of action for detrimental reliance on the job offer itself for the period of time that the employer did not communicate its decision to rescind. Id. at 168. Worbetz's case does not involve a rescinded job offer. He reported to Ward and was employed for an extended period. There is also no evidence he left a lucrative position to join Ward. Peck therefore has no bearing on the facts of this case and does not give good cause to reconsider the Court's decision to dismiss plaintiff's negligent misrepresentation/promissory estoppel/breach of good faith claim.
CONCLUSION
For the reasons discussed herein, the present motions will be granted in part and denied in part. The Court grants defendant's motion for reconsideration of the finding that defendant is liable for violation of CEPA, and that aspect of the Order of June 28, 2001 is vacated, and plaintiff's motion for partial summary judgment on the CEPA claim will be denied. Plaintiff's reconsideration motions are denied.
The accompanying order is entered.
ORDER
THIS MATTER having come before the Court on the parties' cross-motions for reconsideration pursuant to Rule 7.1(g), L. Civ. R., and the Court having reviewed the parties' submissions, and for the reasons discussed in the accompanying Opinion;
IT IS this day of August, 2001 hereby ORDERED AS FOLLOWS:
1. Defendant's motion for reconsideration concerning defendant's CEPA liability [Docket Entry No. 56] is GRANTED ;
2. The grant of partial summary judgment for plaintiff upon his CEPA claim in the Order of June 28, 2001 is VACATED ;
3. Plaintiff's motion for partial summary judgment upon his CEPA claim is hereby DENIED and plaintiff's CEPA claim shall proceed to trial on all elements;
4. Plaintiff's motions for reconsideration [Docket Entry Nos. 58 61] are DENIED.