SCHOOL SPECIALTY, INC. v. FERRENTINO et al
OPINION. Signed by Judge Robert B. Kugler on 7/30/2015. (dmr)
NOT FOR PUBLICATION
(Doc. No. 40)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SCHOOL SPECIALTY, INC.,
Civil No. 14-4507 (RBK/AMD)
THOMAS FERRENTINO and EDUCATION
KUGLER, United States District Judge:
This matter comes before the Court on Defendant Thomas Ferrentino’s (“Ferrentino”)
Motion for Reconsideration, (Doc. No. 40), of this Court’s Order of July 14, 2015, (Doc. No.
37), in which the Court denied Ferrentino’s Appeal of Magistrate Judge Donio’s Order of June
12, 2015. (Doc. No. 25.) For the reasons stated herein, Ferrentino’s Motion for Reconsideration
will be denied.
BACKGROUND AND PROCEDURAL HISTORY
Ferrentino’s current Motion asks this Court to reconsider the Order it entered on July 14,
2015, denying Ferrentino’s appeal of an Order issued by Magistrate Judge Donio. (Doc. No. 25.)
On June 12, 2015, Judge Donio entered an Order on Plaintiff’s informal application for
an extension of time to file a response to Ferrentino’s Amended Counterclaim under Fed. R. Civ.
P. 6(b) after Ferrentino consented to withdraw an Entry of Default that was entered by the Clerk
on June 10, 2015, against Plaintiff. (Id.) The June 12 Order was the product of a telephonic
status conference held by Judge Donio on June 11, 2015, with both parties. (See Doc. No. 26.)
During the June 11 status conference, Plaintiff made an application to extend the time to
answer or otherwise plead pursuant to Fed. R. Civ. P. 6, relying on the “excusable neglect”
justification found in Rule 6(b)(1)(B). (See Tr. of June 10, 2015, Status Conf. (“Tr.”) at 10:1520.) Referring to the factors discussed in Kimberg v. Univ. of Scranton, 411 Fed. App’x 473 (3d
Cir. 2010), Plaintiff argued, inter alia, that there was no prejudice to Defendants were the Court
to grant an extension, (Tr. at 11:12-12:7), there was no bad faith behind Plaintiff’s delay in
originally filing a response to Ferrentino’s Amended Counterclaim, (id. at 12:8-13:4 (stating that
Plaintiff’s counsel contacted the Court’s staff on two occasions to ask whether Plaintiff’s Motion
to Dismiss the original Counterclaim should be withdrawn as moot and refiled, or whether
Plaintiff should wait for the Court to rule on whether Ferrentino needed leave to file an Amended
Counterclaim, to which the Court staff informed Plaintiff’s counsel that it could not advise
Plaintiff’s counsel to withdraw its first Motion to Dismiss—a statement which Plaintiff’s counsel
took to mean that he should wait for the Court to act before taking further action)),1 and there
would be no noticeable impact on the judicial proceedings. (Id. at 13:6-13.) In response,
Ferrentino’s counsel did not dispute any of Plaintiff’s arguments, but merely relied upon the text
of an Order this Court entered the day before. (Id. at 14:22-15:20 (citing June 10, 2015, Letter
Order (Doc. No. 23)); id. at 22:18-21 (same).)2
Plaintiff’s counsel also referred to his belief that a Second Amended Complaint was “filed more than 21 days after
the original one,” requiring leave of the Court for an Amended Counterclaim. (Tr. at 12:12-17.) The Court sees no
evidence of an Amended Complaint, let alone a Second Amended Complaint, on the docket. However, Judge Donio
apparently took note of this portion of Plaintiff’s proffer, referring later in the conference to Plaintiff’s explanation
for why there was “never a response to the Second Amended Counterclaim or to the Amended Counterclaim.” (Id.
In its June 10, 2015, Letter Order, the Court denied Plaintiff’s request to deny Ferrentino’s request for Default, and
denied without prejudice Plaintiff’s request for an extension of time to file an answer. (Doc. No. 23.) The Court
also stated that “[i]f Plaintiff wishes to move to set aside the Clerk’s entry of default and obtain an extension to file a
responsive pleading to Defendant’s Amended Counterclaim, Plaintiff shall file a Motion to Set Aside Default
pursuant to Fed. R. Civ. P. 55(c) and a Motion for an Extension of Time pursuant to Fed. R. Civ. P. 6(b) no later
than fourteen (14) days from the date of this letter.” (Id.)
Judge Donio found that Plaintiff’s proffered reason for not responding to the Amended
Counterclaim demonstrated good faith and excusable neglect under the applicable case law, and
that there had been no showing of prejudice on behalf of the defendant that would warrant
denying Plaintiff’s application for an extension of time. (Tr. at 23:20-24:11.) She also noted
several other reasons why her decision to address and grant Plaintiff’s informal application was
proper, including the fact that applications for extensions of time are typically handled by
magistrate judges in the interest of judicial efficiency under Fed. R. Civ. P. 1, (id. at 23:18-20),
there would necessarily be a new motion to dismiss or answer filed in response to Ferrentino’s
Amended Counterclaim once the Default was set aside, regardless of whether Plaintiff had
requested an extension of time, (id. at 24:4-11, 24:17-22), the agreement by Ferrentino to set
aside the Default changed the application of this Court’s June 10, 2015, Letter Order, (id. at
24:12-22), and Plaintiff’s oral application was in keeping with this Court’s June 10, 2015, Letter
Order requiring only that Plaintiff should request an extension under Fed. R. Civ. P. 6(b). (Id. at
On June 26, 2015, Ferrentino filed an appeal of Judge Donio’s June 12 Order. In his
appeal Ferrentino argued that Judge Donio’s decision to grant Plaintiff’s informal application for
an extension of time under Rule 6(b)(1)(B) based on a finding that Plaintiff had shown good
cause and excusable neglect was “clearly erroneous.” (Def.’s Br. in Support of App. (“App.
Br.”) at 4.) He proceeded to argue that Kimberg, the case relied upon by Plaintiff and Judge
Donio, was inapposite, despite addressing a similar Rule 6(b)(1)(B) request, and instead argued
for the first time that Plaintiff’s mistake was due entirely to professional incompetence (i.e.,
ignorance of the Federal Rules of Civil Procedure), and bad faith (i.e., an inappropriate ex parte
communication with the Court). (See App. Br. at 5-8.)
In its July 14, 2015, Order denying Ferrentino’s appeal, the Court determined that
Ferrentino’s disagreement with Judge Donio’s reasoning “[did] not satisify the high bar of
showing that her Order was ‘contrary to law’ or ‘clearly erroneous,’ particularly where the Court
is granted discretion in addressing excusable neglect as a matter of equity.” (July 14, 2015,
Order (“July 14 Order”) at 4.) It did so after finding that Judge Donio had set forth several
reasons which lent strong support to her decision,3 and Ferrentino had raised no arguments in
opposition to Plaintiff’s informal application during the status conference. (Id. at 3-4.)
Finally, on July 28, 2015, Ferrentino filed the instant Motion for Reconsideration of this
Court’s July 14 Order. Ferrentino argues that reconsideration is necessary to correct “a clear
error of law in finding there was excusable neglect for the late filing by plaintiff.” (Br. at 2.)
Because no further briefing is necessary on this Motion, the Court will proceed to a discussion of
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.,
Specifically, the Court observed that Judge Donio considered as reasons for granting Plaintiff’s application:
(1) applications for extensions of time are typically handled by magistrate judges
in the interest of judicial efficiency under Fed. R. Civ. P. 1; (2) Plaintiff’s
argument that it had relied upon certain representations by a law clerk for this
Court, who would not advise Plaintiff to withdraw its first motion to dismiss, in
failing to respond to Defendants Amended Counterclaim demonstrated good
cause and excusable neglect; (3) there was no showing of prejudice on behalf of
Defendants that would warrant denial of Plaintiff’s application; (4) there would
necessarily be a new motion to dismiss or answer filed in response to Defendants’
Amended Counterclaim once the Default was set aside; (5) the agreement by
Defendants to set aside the Default changed the application of this Court’s [June
10 Order]; and (6) Plaintiff’s oral application was in keeping with this Court’s
[June 10 Order] that Plaintiff should request an extension under Fed. R. Civ. P.
(July 14 Order at 2-3.)
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).
As another court in this District succinctly explained, “[a] motion for reconsideration is
improper when it is used ‘to ask the Court to rethink what it has already thought through—
rightly or wrongly.’” Oritani Sav. & Loan Ass’n v. Fidelity & Deposit Co. of Md., 744 F. Supp.
1311, 1314 (D.N.J. 1990) (citations omitted). That is to say “[e]ach step of the litigation should
build upon the last and, in the absence of newly discovered, non-cumulative evidence, the parties
should not be permitted to reargue previous rulings made in the case.” Oritani, 744 F. Supp. at
1314. Accordingly, “courts in this District routinely deny motions for reconsideration that
simply re-argue the original motion.” Altana Pharma AG v. Teva Pharm. USA, Inc., Civ. No.
04-2355, 2009 WL 5818836, at *1 (D.N.J. Dec. 1, 2009).
In his Motion for Reconsideration Ferrentino asks that the Court reconsider its Order
denying his appeal of Magistrate Judge Donio’s Order. However, it is clear that Plaintiff is not
asking the Court to reconsider its application of the proper standard on an appeal of a nondispositive order of a magistrate judge, but is instead making an untimely argument in opposition
to Judge Donio’s reasoning, which he waived by failing to raise during the original status
conference. The Court here is only required to decide whether it should reconsider its prior order
because it “overlooked matters that, if considered by the court, might reasonable have resulted in
a different conclusion.” U.S. v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
After reviewing its prior Order and Ferrentino’s present Motion, it is clear the Court did not
overlook anything that might have reasonably led to a different conclusion.
As noted above, the record indicates that during the status conference Plaintiff proffered
multiple justifications for its failure to file a timely responsive pleading, Ferrentino did not object
or offer a counter-argument suggesting why those reasons should instead be disregarded or
construed as bad faith or mere ignorance of the rules, and Judge Donio ultimately concluded that
Plaintiffs explanation satisfied the considerations set forth in Kimberg for showing good faith
and excusable neglect. When Ferrentino appealed Judge Donio’s June 12 Order, he argued that
her determination that Plaintiff had demonstrated good faith and excusable neglect was “clearly
erroneous,” and should be set aside. Notably, Ferrentino raised brand new arguments on appeal,
arguing that Judge Donio wrongly concluded that Kimberg was instructive, and should have
instead found several other Third Circuit decisions lead to the opposite conclusion regarding
whether Plaintiff had shown excusable neglect.
In its July 14 Order this Court disregarded Ferrentino’s new arguments, as they had not
been raised prior to his appeal.4 Instead, the Court noted that Judge Donio’s findings and
reasoning were sufficient to find excusable neglect, based on the record below, and were
consistent with the equitable nature of the inquiry, as described in Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). Specifically, the Court found that
Judge Donio had set forth several reasons in support of her decision. One of those reasons was
Plaintiff’s explanation for why it did not file a timely response—in part due to a communication
with the Court’s staff upon which it relied—which Judge Donio found demonstrated good faith
and excusable neglect. The Court also found that Plaintiff had offered no arguments in
opposition to Plaintiff’s informal application at the time it was made. Because of Judge Donio’s
articulated reasons in support of her decision, coupled with the discretion granted to the Court in
addressing excusable neglect as a matter of equity, and Ferrentino’s failure to raise any objection
See Cooper Hosp./Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 135, 142 (D.N.J. 1998) (“[P]arties who litigate before a
Magistrate Judge must raise any and all arguments before the Magistrate Judge, or waive their right to assert the
arguments before the district court on appeal.”) (citing Lithuanian Commerce Corp., Ltd. V. Sara Lee Hosiery, 177
F.R.D. 205, 211 (D.N.J. 1997)).
to those articulated reasons at the time, the Court found that Ferrentino had not met the high bar
for showing Judge Donio’s decision was “clearly erroneous.” (July 14 Order at 4.)
Despite asserting that the Court’s July 14 Order “failed to explain why the ignorance of
Rule 15(a) … was excusable neglect,” and “overlooked the facts and the applicable law,”
Ferrentino merely seeks to argue the merits of Judge Donio’s decision and her finding that
Plaintiff had demonstrated good faith and excusable neglect, which he lost his opportunity to do.
Though he may now contend that Consolidated Freightways Corp. of Del. v. Larson, 827 F.2d
916 (3d Cir. 1987), and not Kimberg is more on point, he waived such an argument by failing to
raise it before Judge Donio in the first instance. In fact, Kimberg applied the “elastic concept” of
excusable neglect as discussed in Brunswick Assocs. to Rule 6(b)(1)(B), Kimberg, 411 Fed.
App’x at 477,5 and Ferrentino has offered no evidence that the factors and analysis in Kimberg
are inapplicable or inconsistent with Consolidated Freightways. Rather, he only argues that
Judge Donio should not have construed Plaintiff’s counsel’s explanation as excusable, but should
have instead found it merely to be ignorance of the Federal Rules of Civil Procedure, and
therefore necessarily not excusable neglect.6 Even if Ferrentino had not waived this argument,
such an attempt to second guess Judge Donio’s original findings is insufficient for the Court to
reconsider its decision at this stage.
In its July 14 Order, this Court did not, as Ferrentino claims, decide that Plaintiff had in
fact shown excusable neglect under the applicable case law. Instead, this Court determined that
Judge Donio’s decision was not clearly erroneous in light of the factual findings she cited and the
Brunswick Assocs. addressed excusable neglect within the context of Bankruptcy Rule 9006(b)(1). Brunswick
Assocs. 507 U.S. at 391-92.
Notably, Ferrentino cites Brunswick Assocs. for this point, which states that “inadvertence, ignorance of the rules,
or mistakes construing the rules do not usually constitute ‘excusable’ neglect.” 507 U.S. at 392 (emphasis added).
“elastic” and equitable nature of determining whether excusable neglect has been shown. See
Brunswick Assocs., 507 U.S. at 392, 395. Ferrentino failed to question those findings in the first
instance at the status conference, failed to show how Judge Donio’s June 12 Order based on the
record and parties arguments during the status conference was clearly erroneous, and now fails to
explain why this Court overlooked any issues of fact or legal authority that might have
reasonably led to a different conclusion when it issued its July 14 Order. For these reasons,
Ferrentino’s Motion for Reconsideration will be denied.
For the reasons stated above, Ferrentino’s Motion for Reconsideration (Doc. No. 40) will
be DENIED. An appropriate Order shall issue.
s/ Robert B. Kugler_
ROBERT B. KUGLER
United States District Judge
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