Opinion
Civil No. 02-0022 (JBS)
September 24, 2003
Christopher J. Christie, Paul A. Blaine, Camden, NJ, for Plaintiff United States of America
Ms. Anna M. Codario, Minotola, NJ, Pro Se, for Defendant
OPINION
This matter comes before the Court upon defendant Anna Marie Codario's motions for reconsideration of the Court's opinion and order of March 10, 2003, see United States v. Anna Marie Codario, No. 02-0022 (D.N.J. March 10, 2003), in which the Court granted the Government's motion for summary judgment, and to alter and amend under Fed.R.Civ.P. 59(e).
Also before the Court is the United States's motion to strike from the record of this proceeding the document submitted by defendant entitled "Supplemental Attachment: Provided To Filed Motion" and affidavit of Samuel Thornton (dated April 19, 2003) attached thereto.
For reasons discussed herein, defendant's motions will be denied and plaintiff's motion will be granted.
BACKGROUND
Plaintiff the United States of America brought this action seeking an order of possession ejecting defendant Anna Marie Codario from the farm property that it has owned since 1984, when it purchased the property at a sheriff's sale following foreclosure by the senior mortgage holder on a first mortgage security interest held by Codario. Defendant Codario sought judicial review of her administrative complaint with the United States Department of Agriculture ("USDA") pursuant to § 741 of the Agriculture, Rural Development, Food and Drug Administration, and related Appropriations Act, claiming that she was entitled to unspecified equitable and legal relief on her gender and national origin discrimination claims under the Equal Credit Opportunity Act ("ECOA").
Plaintiff filed a motion for summary judgment, arguing that defendant's counterclaim should have been dismissed as she was not eligible to proceed with her discrimination action under § 741, and that her counterclaim was time-barred absent any waiver of the statute of limitations under § 741. On March 10, 2003, this Court granted plaintiff's motion for summary judgment. The Court found that since Codario's letters of complaint and her complaint filed in district court, raised in the context of her administrative request for hearing under § 741, failed to constitute "eligible complaints" such that the statute of limitations would be waived on her ECOA claims under § 741, her counterclaims should be dismissed. In addition, the Court granted the United States's request for an order of ejectment, finding that the Government had demonstrated possession and ownership.
In response to this Court's summary judgment order, defendant filed a motion to stay the Order of March 10, 2003, ordering defendant to vacate the premises within 45 days. The Court, on April 17, 2003, granted this stay pending determination of defendant Codario's motions presently before the Court.
DISCUSSION
Defendant's Motion for Reconsideration
Local Civil Rule 7.1(g) of the United States District Court, District of New Jersey, governs defendant's motion for reconsideration. The rule requires that the moving party set forth the factual matters or controlling legal authority that she believes the court overlooked when rendering its initial decision. L. Civ. R. 7.1(g). Whether to grant reconsideration is a matter within the district court's discretion, but it should only be granted where such facts or legal authority were indeed presented but overlooked. DeLong Corp. v. Raymond Int'l, Inc., 622 F.2d 1135, 1140 (3d Cir. 1980), overruled on other grounds by Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); Williams v. Sullivan, 818 F. Supp. 92, 93 (D.N.J. 1993). A motion for reconsideration is improper when it is used solely to ask the court to rethink what it has already thought through — rightly or wrongly. Oritani Savings Loan Assoc. v. Fidelity Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990) (citing Above the Belt v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)), rev'd on other grounds, 989 F.2d 635 (3d Cir. 1993). Nor is reconsideration warranted when the moving party simply recapitulates the cases and arguments considered by the court prior to rendering its initial decision. Carteret Sav. Bank v. Shushan, 721 F. Supp. 705, 706-07 (D.N.J. 1989). Where the moving party contends that the court's interpretation of the matters previously presented was in error, an appeal is the proper route for review of the court's decision, not a motion for reconsideration. See Allyn Z. Lite, New Jersey Federal Practice Rules Comment Rule 12, 87-88 (Gann Law Books 1996).
Here, the defendant asks the Court to reconsider its entry of summary judgment in favor of the United States. In an attempt to stave off the Court's final order of March 10, 2003, and without seeking the Court's leave to do so, see, Lite, N.J. Federal Practice Rules, Comment 4b. to L. Civ. R. 7.1, at 24-25 (Gann 2003), the defendant has submitted additional argumentation and documentation in support of her motion for reconsideration in the form of an affidavit of Samuel Thornton, an employee of the United States Department of Agriculture. Mr. Thornton's affidavit is offered for the apparent purpose of supporting Codario's contention that she made an oral complaint to the USDA in 1997. Codario would have this Court consider this now, for the first time, as a § 741 eligible complaint of ECOA discrimination.
A judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). As there has been no intervening change in controlling law, Codario must seek reconsideration on the ground(s) either that new evidence is now available but was not previously and/or that there is a need to correct a clear error of fact or to prevent manifest injustice.
In this case, Codario offers the Thornton affidavit as additional evidence. As a preliminary matter, the information contained within the affidavit could not have been overlooked by this Court, as it was never presented; the affidavit did not come into existence until after the March 10 summary judgment order. Codario now seeks to argue that her oral complaint, which she seeks to prove through the introduction of this affidavit, qualifies as a proper complaint under § 741. However, as the Government correctly points out, nothing in the Thornton affidavit identifies a specific occasion on which Ms. Codario made an oral statement to him about a specific violation of the ECOA. Section 741(e)(1)(A), however, explicitly requires the allegation of specific violations, and, consequently, Codario's argument that her oral complaint qualifies as a "filed" § 741 complaint must fail. For this reason, even were this Court to consider Thornton's statement, the outcome of the matters previously decided by the Court would remain the same.
Regardless of whether or not defendant's conversation with Thornton may be characterized as a proper § 741 complaint, however, the Government also notes correctly that Codario was obligated to raise and support this argument at the earlier summary judgment stage. Defendant has not indicated that this new evidence was unavailable when the summary judgment motion was pending, and the briefing and adjudication of a dispositive motion is not a dry run.
Furthermore, Codario, in her response to the plaintiff's opposition, enlarges her motion for reconsideration to include this Court's opinion and order of April 17, 2003, see United States v. Anna Marie Codario, No. 02-0022 (D.N.J. April 17, 2003), in which the Court denied Codario's request for an evidentiary hearing to support her reconsideration motion. In submitting the Thornton affidavit, Codario seeks a hearing at which two USDA officials would presumably testify. However, the topics about which the officials would testify could have been addressed while the summary judgment motion was pending before this Court. The Court's admonition in its April 17, 2003 order that "defendant [did] not even summarize what the expected testimony [would] be or how it fulfills her burdens . . .", id., was not an invitation to defendant to provide this information at this late date.
For the reasons discussed above, defendant's motions for reconsideration and to alter or amend under Fed.R.Civ.P. 59(e) will be denied.
Plaintiff's Motion to Strike
In response to Codario's motion for reconsideration and submission of the document entitled "Supplemental Attachment: Provided To Filed Motion" as well as the attached affidavit of Samuel Thornton, the United States makes a motion to strike.
It does so on the basis of several arguments. First, the Government points out that the affidavit is not sworn or subscribed before a notary or any other person authorized to administer oaths. Nor does it recite that the factual statements made in it are true and correct, as is required for an acceptable declaration in compliance with 28 U.S.C. § 1746.
Second, the United States makes its motion to strike the Thornton affidavit on the ground that it was obtained through impermissible means. The affidavit contains the recitation that it was submitted in partial compliance with a subpoena served on Mr. Thornton by a party to this litigation. Thornton statement, at 3. The Government, through the declaration of Assistant U.S. Attorney Paul A. Blaine, however, attests that it did not serve any such subpoena upon Mr. Thornton. Blaine declaration, April 28, 2003, at 2. Thus, it must be assumed that the subpoena came from defendant Codario.
Defendant, however, has not complied with the service requirements of Fed.R.Civ.P. 5(a) and 45(b); Codario never served a copy of the subpoena on the Government, nor did she file a certificate of service in this matter as is required under Fed.R.Civ.P. 5(d). Furthermore, while it is unclear who issued the subpoena in this case, Codario, as a pro se litigant, was not permitted to do so herself as an attorney in her capacity as an officer of the court might do under Fed.R.Civ.P. 45(a)(3).United States v. Meredith, 1999 WL 381128, *1 (10th Cir. 1999) (unpublished disposition) ("A pro se litigant who is not a licensed attorney with the appropriate federal district court has no power to issue subpoenas").
Finally, the Government moves to strike on the ground that Thornton did not have the requisite authorization to provide testimony in the form of an affidavit. Under the provisions of 7 C.F.R. § 1.210, 1.212 (2003), no USDA employee is permitted to provide testimony in a judicial proceeding relating to his official employment, without first obtaining the requisite authorization. In the specific instance of a USDA employee subpoenaed as a witness on behalf of a party other than the United States, in litigation to which the United States is a party, the employee's ability to respond as commanded by a validly issued subpoena depends on whether the head of the relevant USDA agency _ the USDA General Counsel and counsel for the United States in the pending litigation — determine that there are grounds on which to oppose the subpoena. 7 C.F.R. § 1.216(b)(1) and (c). In the absence of a validly issued subpoena, the USDA employee is permitted to respond to the subpoena only if authorized by counsel for the United States in the judicial proceeding. 7 C.F.R. § 1.216(b)(2).
In this instance, Thornton was never given the necessary authorization because he never sought it and defendant provided no notice to the Government that Thornton was being served with a subpoena. Consequently, Codario's submission of Thornton's affidavit is unauthorized and should be disregarded.
For the reasons discussed above, plaintiff's motion to strike the document submitted by defendant entitled "Supplemental Attachment: Provided To Filed Motion" and the affidavit of Samuel Thornton attached thereto will be granted.
CONCLUSION
For the reasons discussed above, defendant's motions for reconsideration and to alter and amend will be denied. Plaintiff's motion to strike defendant's supplemental documents will be granted. The temporary stay of this Court's Order of March 10, 2003 will be vacated, and the United States may enforce that Order. The accompanying Order is entered.
THIS MATTER having come before the Court upon defendant Anna Marie Codario's motions for reconsideration and to alter and amend pursuant to Fed.R.Civ.P. 59(e) as well as upon plaintiff United States's motion to strike the submitted document entitled "Supplemental Attachment: Provided To Filed Motion"; and the Court having considered the parties submissions, and for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS on this ___ day of September, 2003, hereby
ORDERED that defendant's motions for reconsideration and to alter and amend [Docket Item No. 18-1] be, and hereby is DENIED ; and
IT IS FURTHER ORDERED that plaintiff's motion to strike [Docket Item No. 22-1] be, and hereby is GRANTED ; and
IT IS FURTHER ORDERED that the temporary stay of this Court's Order of March 10, 2003 [Docket Item No. 20-1] pending determination of defendant's reconsideration motion, is vacated, and the Order of March 10, 2003 remains in full force and effect.