ADAMS v. REPUBLIC SERVICES, INC.
Filing
57
MEMORANDUM ORDER denying 43 Motion for Reconsideration re 40 Order on Motion for Summary Judgment. Signed by Judge Renee Marie Bumb on 11/7/2014. (dmr)
[Dkt. Ent. 43]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KEITH ADAMS,
Plaintiff,
Civil No. 12-267 (RMB/KMW)
v.
MEMORANDUM ORDER
REPUBLIC SERVICES, INC.,
Defendant.
This matter comes before the Court upon Defendant’s motion
for reconsideration of this Court’s Order denying summary
judgment on grounds that there are disputes as to material facts
regarding whether Defendant Republic Services, Inc. was a
special employer. (Dkt. Ent. 43.) For the reasons set forth
below, Defendant’s motion is DENIED.
In the District of New Jersey, Local Civil Rule 7.1(i)
governs motions for reconsideration. Bowers v. Nat'l. Collegiate
Athletics Ass'n, 130 F. Supp. 2d 610, 612 (D.N.J. 2001). “Local
Civil Rule 7.1(i) creates a procedure by which a court may
reconsider its decision upon a showing that dispositive factual
matters or controlling decisions of law were overlooked by the
court in reaching its prior decision.” Agostino v. Quest
Diagnostics Inc., No. 04–4362, 2010 WL 5392688, at *5 (D.N.J.
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Dec. 22, 2010) (citing Bryan v. Shah, 351 F. Supp. 2d 295, 297
(D.N.J. 2005); Bowers, 130 F. Supp. 2d at 612).
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) (internal citation omitted). Reconsideration is to be
granted only sparingly. United States v. Jones, 158 F.R.D. 309,
314 (D.N.J. 1994). Such motions “may not be used to relitigate
old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.” NL
Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513,
515–16 (D.N.J. 1996) (internal citation omitted). Third Circuit
jurisprudence dictates that a Rule 7.1(i) motion may be granted
only if: (1) there has been an intervening change in the
controlling law; (2) evidence not available when the Court
issued the subject order has become available; or (3) it is
necessary to correct a clear error of law or fact to prevent
manifest injustice. Max’s Seafood Café v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA
Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995)); Agostino, 2010
WL 5392688, at *5.
Defendant points to two decisions that it contends this
Court overlooked in denying summary judgment. First, Defendant
cites Marino v. Industrial Crating Co., 358 F.3d 241, 247-48 (3d
2
Cir. 2004), in which the Third Circuit noted that there are two
types of fact patterns in which courts are called upon to
address the “special employer” issue: “‘Manpower’ or employment
agency cases, in which the employee is almost universally held
to be a ‘special employee’ of the business employer that has
hired him as a temporary helper, and all other work situations
in which an employee is actually working on a job or project of
someone who is not technically his employer.” The Court then
cited a number of examples of “Manpower” cases in which
temporary workers were found to be special employees of the
temporary employer. 358 F.3d 248 n.6. According to Defendant,
the instant matter falls within the “Manpower” line of cases and
thus, the Court should have granted summary judgment. However,
the Third Circuit did not analyze Marino under the “Manpower”
line of cases, 358 F.3d at 248 n.6, and thus it provides little
guidance to this Court. Moreover, Defendant cited Marino in its
summary judgment papers and it was considered by this Court in
reaching its decision.
Second, Defendant cites to Kelly v. Geriatric and Medical
Services, Inc., 671 A.2d 631 (N.J. 1996). There, the plaintiff
was employed by a labor services company that supplied temporary
nursing personnel to health care facilities. Id. at 570. The
court considered the five factor “fact-sensitive” test cited by
this Court in its summary judgment Opinion:
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(a) whether the
employee has made a contract of hire, express or implied, with
the special employer; (b) whether the work being done is
essentially that of the special employer; (c) whether the
special employer has the right to control the details of the
work; (d) whether the special employer pays the lent employee’s
wages; and (e) whether the special employer has the power to
hire, discharge or recall the employee. Id. (citations omitted).
In Kelly, the court found that “plaintiff’s voluntary acceptance
of work [for defendant] gave rise to an implied contract of
employment,” and that she also voluntarily accepted defendant’s
control when she complied with assignments and supervision by
defendant. Id. at 575. The plaintiff’s “work duties and job
performances were assigned, directed and overseen by
[defendant’s] supervisor” while the temp agency exercised no
control, thus satisfying the third prong. Id. at 576-77. The
court afforded “little weight” to the fourth prong because
plaintiff’s wages were indirectly paid out of the fees the
defendant paid to the temp agency. As to the fifth prong, the
defendant controlled whether she would continue to work at its
facilities, which the court determined was “the functional
equivalent of the power to discharge her.” Id. at 577.
Accordingly, the Kelly court held that the plaintiff was a
special employee of the defendant and was precluded from
maintaining a tort action against it.
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As with Marino, Defendant relied upon Kelly in its summary
judgment papers in support of arguments nearly identical to
those it sets forth in its reconsideration papers. The Court
considered those arguments and determined that there were
genuine disputes as to material facts regarding whether Republic
was a special employer. (Opinion at 3-4.) For example, Plaintiff
pointed to evidence that Labor Ready determined whether to offer
Plaintiff an assignment with Republic, and whether Plaintiff
would be offered an assignment with residential or commercial
trash collection. Labor Ready provided Plaintiff with safety
equipment and transported him to the job site. In addition,
Plaintiff argued that Labor Ready bore sole responsibility for
training him, which it did by showing him various videos.
Combined, these facts created a dispute of fact as to whether
Republic had the right to control the details of Plaintiff’s
daily activities.
Now, however, in connection with its unauthorized reply
brief, Defendant submitted a newly-obtained certification of
James Connell, the branch manager for Labor Ready. (Dkt. Ent.
53); see Rotenberg v. Lake Charter Bus. Corp., No. 12-2155, 2014
WL 3731324, at *2 n.4 (D.N.J. July 28, 2014); L. Civ. R. 7.1.
Connell asserts that Labor Ready plays, at Republic's request, a
safety video for employees that Republic provided to Labor
Ready. (Connell Cert. ¶¶ 3-4.) He further asserts
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[a]s to daily assignments, Republic is responsible for
determining where a Labor Ready employee assigned to
work for Republic is assigned. While Republic is
responsible for determining whether the employee is
assigned to its commercial or residential division and
which driver that temporary employee will be assigned
to work with, Labor Ready personnel communicate that
decision to Labor Ready temporary employees assigned
to work for Republic so that they know where to report
each morning.”
(Id. at ¶¶ 5-6 (emphasis added).) Moreover, Connell avers that
once the employee reports to Republic, the employee is under
Republic’s exclusive control. (Id. at ¶ 7.)
Republic asks this Court to consider the Connell
Certification, which it obtained only after “significate and
unanticipated delays” due to the need to coordinate with Labor
Ready’s corporate counsel. (Dkt. Ent. 54.) This explanation
fails to adequately demonstrate why this Certification could not
have been presented prior to entry of this Court’s decision on
Defendant’s motion for summary judgment and thus it fails to
provide a basis for reconsideration. See NL Indus., Inc., 935 F.
Supp. at 515–16 (Motions for reconsideration “may not be used to
. . . present evidence that could have been raised prior to the
entry of judgment.”).
Although the Connell Certification does not permit voidance
of this Court’s summary judgment decision, the Court hastens to
note that it seemingly undermines many of Plaintiff’s arguments
regarding the relationship between Republic and Labor Ready. For
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example, while Plaintiff contends that Labor Ready trained him,
Connell attests that the video used to train Labor Ready
employees was provided by Republic and shown at its request.
Similarly, while Plaintiff contends that Labor Ready determined
the assignments, Connell contends that Labor Ready merely
conveyed Republic’s decisions to the Labor Ready employees. Most
notably, Connell avers that the Labor Ready employees were under
Republic’s exclusive control after the employees reported to
Republic for work. These facts, if adduced at trial and found to
be credible, may lead the jury to conclude that Republic had the
right to control the details and thus was Plaintiff’s special
employer, thereby barring Plaintiff from recovery against
Republic.
For the above reasons, however, Defendant's motion for
reconsideration lacks merit.
Defendant does not point to any
intervening change of law or new evidence that was not available
when this Court rendered its decision. Further, Defendant does
not point to specific facts or controlling decisions that this
Court has overlooked in its analysis.
ACCORDINGLY, IT IS HEREBY on this 7th day of November 2014,
ORDERED that Defendant's Motion for Reconsideration is
DENIED.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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