COTTRELL et al v. FAMILY PRACTICE ASSOCIATES AT WASHINGTON, PA et al

Filing 30

OPINION. Signed by Judge Noel L. Hillman on 1/31/2017. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
MARYANN COTTRELL and
RICHARD HOLLAND,
Plaintiffs,

Civil No. 15-2267 (NLH/KMW)

v.
OPINION
FAMILY PRACTICE ASSOCIATES at
WASHINGTON, PA, et al.,
Defendants.
__________________________________

APPEARANCES:
Maryann Cottrell
Richard Holland
31 S. Academy Street
Glassboro, New Jersey 08208
Pro Se Plaintiffs
WEINER LAW GROUP LLP
By: Arnold Robert Gerst, Esq.
P.O. Box 438
Parsippany, New Jersey 07054
Counsel for Defendants

HILLMAN, District Judge
On May 26, 2016, the Court entered summary judgment in favor
of Defendants, and this case was closed.
docket entries 26 and 27.

See Opinion and Order at

In an 8-sentence letter dated June 6,

2016, pro se Plaintiff Maryann Cottrell “request[s] the opportunity
to file a supplemental response to the motion [for summary
judgment].” Docket entry 28.

Defendants oppose the request.

1

For

the reasons stated herein, Plaintiff’s request, which the Court
construes as a Motion to Reopen the case 1, will be denied without
prejudice. 2
I.
This is a suit pursuant to the Americans with Disabilities
Act, and New Jersey’s Law Against Discrimination.

The Court’s

prior discussion of the summary judgment record is incorporated
herein by reference.
Most directly relevant to the instant motion is the following
procedural history.
The motion for summary judgment began as a motion to dismiss,
which was originally filed in December, 2015.
opposition to the motion.

Plaintiffs filed

Because the Motion to Dismiss relied on

materials outside the pleadings, the Court converted the motion to
dismiss to a motion for summary judgment. See Opinion and Order at
docket entries 23 and 24.

The Order converting the motion set a

The letter was docketed as a “Motion for Reconsideration.”
However, the word “reconsider” does not appear anywhere in the
letter. Moreover, Plaintiff does not assert that the Court erred
in any way. Rather, Plaintiff seeks an opportunity to file an
unspecified “response” to a motion for summary judgment that has
already been decided in Defendants’ favor. Therefore, the Court
concludes that Fed. R. Civ. P. 60(b) is the most appropriate
vehicle for the relief Plaintiff seeks.
1

2 As stated in the previous opinion, the Court has federal question
subject matter jurisdiction pursuant to 28 U.S.C. § 1331, and
supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

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supplemental briefing schedule; Plaintiffs’ supplemental response
was due 20 days from the date of the Order, i.e., on May 18, 2016.
Plaintiffs filed no supplemental response, and on May 26,
2016, the Court granted summary judgment to Defendants.
In Plaintiff Cottrell’s letter requesting leave to belatedly
file her response, Plaintiff asserts that “[a]t the time the Order
was signed (Document 24) 3 . . . plaintiff Cottrell was in the
hospital having surgery performed.”
Plaintiff’s letter encloses the following undated doctor’s
note:
To whom it may concern:
This is to verify that: Maryann Cottrell
Has been seen in our office last on 5/18/2016.
This letter is to request that Maryann be excused from
jury duty until 6/22/2016 or after due to her recent knee
surgery.
She underwent a total knee replacement on
5/2/2016. She is currently recovering from surgery and
participating in intense physical therapy which limits
her ability to participate in jury duty at this time.
Please accept this letter requesting deferment until after
6/22/2016.
(Docket Entry 28)
Defendants oppose Plaintiff’s request suggesting that, at the
very least, Plaintiff Richard Holland, who lives with Cottrell,
could have timely requested an extension of time to submit

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Document 24 was signed on April 28, 2016.
3

Plaintiffs supplemental response prior to the Court’s Opinion and
Order of May 18, 2016 granting summary judgment to Defendants.
II.
Federal Rule of Civil Procedure 60(b) provides, “[o]n motion
and just terms, the court may relieve a party . . .

from a final

judgment, order, or proceeding for the following reasons:
(1) mistake,
neglect;

inadvertence,

surprise,

or

excusable

(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic
extrinsic), misrepresentation, or misconduct by
opposing party;

or
an

(4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.”
III.
The Court construes pro se Plaintiff Cottrell’s letter as
asserting that the case should be reopened due to her excusable
neglect. In this regard, Cottrell has submitted documentation
demonstrating that she had knee replacement surgery on May 2, 2016.
This sparse information alone, however, is not sufficient to
support a finding of excusable neglect-- particularly in light of

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what is, at least, a superficial conflict in her present
submissions: Plaintiff’s letter states that she was in the hospital
“having surgery” on April 28, 2016 (a Thursday), but her doctor’s
note states that the surgery took place on May 2, 2016 (a Monday).
Plaintiff will be granted leave to file within 30 days, a
declaration or affidavit setting forth any additional facts or
explanations which may further support a finding of excusable
neglect.

Plaintiff should also include in her filing any other

ground which she may assert supports reopening this case.
IV.
The motion will be denied without prejudice.

Plaintiff will

be granted leave to file within 30 days, any additional materials
in support of her Motion to Reopen.

If Plaintiff files additional

materials, Defendant will have 30 days to respond.

An appropriate

order accompanies this opinion.

Dated: January 31, 2017
At Camden, New Jersey

__s/ Noel L. Hillman___
NOEL L. HILLMAN, U.S.D.J.

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