HARRISON et al v. TRUMP PLAZA HOTEL & CASINO et al
OPINION. Signed by Judge Robert B. Kugler on 6/16/2015. (drw)
NOT FOR PUBLICATION
(Doc. No. 97)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ESTATE OF HARRISON, et al.,
TRUMP PLAZA HOTEL & CASINO,
Civil No. 12-6683 (RBK/KMW)
KUGLER, United States District Judge:
This matter comes before the Court on Plaintiffs’ Motion for Reconsideration, (Doc. No.
97), of this Court’s January 8, 2015, Order and Opinion, (Doc. Nos. 93, 94), in which the Court
granted Defendants Craig F. Dothe Architect, LLC’s (“Dothe”) and Ancor, Inc.’s (“Ancor”)
Motions to Dismiss. For the reasons stated herein, Plaintiffs’ Motion for Reconsideration will be
BACKGROUND AND PROCEDURAL HISTORY
On July 28, 2014, Dothe filed a Motion to Dismiss Plaintiffs’ TAC pursuant to Fed. R.
Civ. P. 12(b)(6), arguing it was barred by the statute of limitations, (Doc. No. 74), and on August
12, 2014, Ancor also moved to dismiss Plaintiffs’ TAC on the same grounds, relying on Dothe’s
brief in support of its Motion to Dismiss. (See Doc. No. 76.) The Court issued an Opinion and
Order on January 8, 2015, granting Dothe’s and Ancor’s Motions to Dismiss on the basis that
Plaintiffs’ failure to comply with the specificity requirement of the fictitious party rule
effectively barred their claims pursuant to the relevant statute of limitations and New Jersey law.
(Doc. Nos. 93, 94.)
Plaintiffs filed the present Motion for Reconsideration on January 23, 2015, (Doc. No.
97), arguing that the discovery rule tolled the applicable statute of limitations, and that the Court
should have allowed the claims against Dothe and Ancor to proceed. (Doc. No. 98). Dothe and
Ancor filed a brief in opposition to Plaintiffs’ Motion for Reconsideration on January 30, 2015.
(Doc. No. 99.) Because the parties have fully briefed this Motion, the Court will proceed to a
discussion of its merits.
While the Federal Rules of Civil Procedure do not expressly authorize motions for
reconsideration, Local Civil Rule 7.1(i) provides for such a review. Dunn v. Reed Group, Inc.,
Civ. No. 08-1632, 2010 WL 174861, at *1 (D.N.J. Jan 13, 2010). Local Civil Rule 7.1(i) directs
a party seeking reconsideration to file a brief “setting forth concisely the matter or controlling
decisions which the party believes the Judge or Magistrate Judge has overlooked.” L. Civ. R.
7.1(i); see also Bowers v. Nat’l Collegiate Athletic Ass’n, 130 F. Supp. 2d 610, 612 (D.N.J.
2001) (“The word ‘overlooked’ is the operative term in the Rule.”) A motion for reconsideration
under Rule 7.1(i) is “‘an extremely limited procedural vehicle,’ and requests pursuant to th[is]
rule[ ] are to be granted ‘sparingly.’” Langan Eng’g & Envtl. Servs., Inc. v. Greenwich Ins. Co.,
Civ. No. 07-2983, 2008 WL 4330048, at *1 (D.N.J. Sept. 17, 2008) (citing P. Schoenfeld Asset
Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 1992)).
To prevail on a motion for reconsideration, the moving party must show 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 [made its initial decision]; 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). Reconsideration is not appropriate, however,
where the motion only raises a party’s disagreement with the Court’s initial decision. Florham
Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988); see also
United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999) (“Mere
disagreement with a court’s decision normally should be raised through the appellate process and
is inappropriate on a motion for [reconsideration]”); Schiano v. MBNA Corp., Civ. No. 05-1771,
2006 WL 3831225, at *2 (D.N.J. Dec. 28, 2006) (“Mere disagreement with the Court will not
suffice to show that the Court overlooked relevant facts or controlling law, . . . and should be
dealt with through the normal appellate process”) (citations omitted).
In their Motion for Reconsideration Plaintiffs ask that the Court reconsider its decision to
grant Dothe’s and Ancor’s Motions to Dismiss. However, Plaintiffs ignore both the legal
standard governing motions for reconsideration and the basis of the Court’s prior ruling. They
do not suggest that there has been an intervening change in the controlling law or that there is
any new, previously unavailable evidence. Nor do Plaintiffs argue that the Court committed a
clear error of law or fact or that reconsideration is necessary to prevent manifest injustice. Max’s
Seafood Café, 176 F.3d at 677. Instead, Plaintiffs raise new arguments not raised in their briefs
submitted prior to the initial judgment. See Red Roof Franchising v. AA Hospitality Northshore,
937 F. Supp. 2d 537, 543 (D.N.J. 2013) (stating that a motion for reconsideration is not “an
opportunity for a litigant to raise new arguments or present evidence that could have been raised
prior to the initial judgment”); see also Polizzi Meats, Inc. v. Aetna Life & Casualty Co., 931 F.
Supp. 328, 339 (D.N.J. 1996) (stating that Local Civil Rule 7.1 “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”).
In its prior Opinion, the Court found that Plaintiffs had invoked the fictitious party rule1
when they attempted to add Dothe and Ancor, and accordingly the general relation back
rule did not apply under New Jersey Law.2 (Doc. No. 93 at 7.) Because Plaintiffs failed to meet
the specificity required by the fictitious party rule, the Court was not required to address
Plaintiffs’ diligence in ascertaining the identities of Dothe or Ancor.3 On that basis, the Court
dismissed the claims against Dothe and Ancor.
Plaintiffs do not argue that the Court committed any error in its application of the
fictitious party rule, and instead present new arguments in their Motion for Reconsideration that
are found nowhere in their opposition to Dothe’s and Ancor’s Motions to Dismiss.4 However,
Plaintiffs cannot circumvent the appeal process by raising an argument in their Motion for
Reconsideration that they did not raise prior to the Court’s original decision. See BAPU Corp. v.
Choice Hotels Int’l, Inc., Civ. No. 07-5938, 2010 WL 3259799, at *1 (D.N.J. Aug. 17, 2010)
(“this court cannot consider . . . [an] argument . . . raised for the first time in [a] motion for
The New Jersey fictitious party rule provides that “if the defendant's true name is unknown to the plaintiff, process
may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate
description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state
defendant's true name . . .” N.J. Stat. § 4:26-4.
See Alcius v. City of Trenton, No. 13-716, 2014 WL 4663204, at *2 n.3 (D.N.J. Sept. 18, 2014) (“Plaintiff’s
original Complaint against fictitious John/Jane Does establishes a need for a later amendment. Thus, the fictitious
party rule, not N.J.R. 4:9-3, is the applicable rule under which the amendment should be analyzed.”)
See Andreoli v. State Insulation Corp., No. A-2636-10T4, 2011 WL 4577646 (N.J. Super. Ct. App. Div. Oct. 5,
2011) (stating that “although not expressly stated in the Rule, it is well-settled that the Rule is unavailable to a party
that does not act diligently in identifying the defendant”).
Plaintiffs’ entire Motion for Reconsideration is premised on their argument that, because they complied with the
requirements of the discovery rule and did not know they had a claim against Dothe or Ancor until after the statute
of limitations had run, the discovery rule should have tolled the statute of limitations under the circumstances.
While this argument may have merit, it was never raised below and the Court may not entertain it for the first time
on a motion for reconsideration. Joyce v. Sea Isle City, Civ. No. 04-5345, 2008 WL 2875456, at *2 (D.N.J. July 23,
reconsideration”); see also Feit v. Great-West Life and Annuity Ins. Co., 460 F. Supp. 2d 632,
644 (D.N.J. 2006), aff’d, 271 Fed. App’x 246 (3d Cir. 2008) (finding that cases and legal theory
were not overlooked when not referenced in moving party’s brief); Galletta v. Velez, Civ. No.
13-532, 2014 WL 631891, at *2 (D.N.J. Feb. 18, 2014) (“a motion for reconsideration is not a
vehicle for a party to raise arguments that were effectively waived by being omitted from that
party’s original briefs”) (quoting A & L Indus., Inc. v. P. Cipollini, Inc., Civ. No. 12–7598, 2013
WL 6145766, at *1 (D.N.J. Nov. 21, 2013)). Accordingly, these new arguments cannot serve as
the basis for the Court’s reconsideration of its prior Opinion and Order. See Cafaro v. HMC
Int’l, LLC, Civ. No. 07-2793, 2009 WL 2382247, at *1 (D.N.J. July 30, 2009) (where a case is
not presented to court in moving papers, it is not overlooked by court). Because Plaintiffs fail to
address any of the three grounds for reconsideration, the Court will deny their Motion.
For the reasons stated above, Plaintiff’s Motion for Reconsideration will be DENIED.
An appropriate Order shall issue today.
s/ Robert B. Kugler___
ROBERT B. KUGLER
United States District Judge
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