ZITTER v. PETRUCCELLI et al

Filing 52

OPINION. Signed by Judge Noel L. Hillman on 5/8/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARC ZITTER,

Civil No. 15-6488 (NLH/KMW)
Plaintiff,
OPINION

v.

CHRISTOPHER PETRUCCELLI, et
al.
Defendants.

APPEARANCES:
Jeffrey Erik Jakob
William F. Cook
William M. Tambussi
Brown & Connery LLP
360 Haddon Avenue
Westmont, NJ 08108
Attorneys for Plaintiff
Kevin J. Fleming
State of New Jersey
Office of the Attorney General
25 Market Street
P.O. Box 116
Trenton, NJ 08625
Attorney for Defendants

HILLMAN, District Judge
This case concerns an oyster harvesting operation in Cape May,
New Jersey.

Plaintiff sues several state officials claiming that

they destroyed thousands of dollars’ worth of his oysters in
retaliation for protected speech.

Presently before the Court is

Plaintiff’s Motion for Reconsideration of the Court’s previous
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decision granting Defendants’ Motion to Dismiss as it pertains to
the Takings Clause claim asserted in the First Amended Complaint.
For the reasons stated herein, the Motion for Reconsideration will
be denied.
I.
The Court’s decision implicated by the instant motion is
available at Zitter v. Petruccelli, 2016 U.S. Dist. LEXIS 135656
(D.N.J. Sept. 30, 2016).

In that opinion, the Court ruled that

Plaintiff’s Takings Clause claim would be dismissed with prejudice
for failure to state a claim, explaining,
Plaintiff’s property was seized pursuant to New Jersey
statute which in order to protect the public health
requires the Department of Environmental Protection to
prohibit
the
taking
and
sale
of
oysters
from
contaminated waters (N.J. Stat. Ann. § 54:24-3) and
authorizes the agency to destroy or dispose of any such
food “[e]xposed or offered for sale, or had in possession
with intent to sell” (N.J. Stat. Ann. § 24:4-11).
Zitter, 2016 U.S. Dist. LEXIS at *21.

Therefore, the Court held,

Plaintiff could not allege that there had been an unlawful taking.
The opinion and order were issued on September 30, 2016.

The

instant Motion for Reconsideration was filed on October 28, 2016.
On that same day, Plaintiff filed a Second Amended Complaint which
asserts a Takings Clause claim.

Most notably, the Second Amended

Complaint alleges that the state entity that actually took and
destroyed Plaintiff’s oysters-- the Division Fish and Wildlife-lacks statutory and regulatory authority to enforce the violations
with which Zitter was charged. (See Second Amended Complaint ¶ 291)
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Plaintiff asserts that this is a different theory of liability than
before.
Defendants have moved to dismiss the Second Amended Complaint.
Although the Second Amended Complaint asserts a Takings Clause
claim, Defendants do not argue that the Second Amended Complaint
fails to state a claim as to the Taking Clause (other than arguing
11th Amendment and qualified immunity); nor do Defendants argue that
this Court already ruled on the Takings Claim as asserted in the
Second Amended Complaint.
II.
Local Civil Rule 7.1(i) provides, “[u]nless otherwise provided
by statute or rule (such as Fed. R. Civ. P. 50, 52 and 59), a motion
for reconsideration shall be served and filed within 14 days after
the entry of the order or judgment on the original motion by the
Judge or Magistrate Judge.”
III.
The motion will be denied for two independent reasons.
A.
Defendants argue the instant motion should be denied as
untimely.

The Court agrees.

Plaintiff does not dispute that his

motion for reconsideration was filed 28 days (i.e., more than 14
days) after the entry of the order on the original motion.

However,

Plaintiff argues that his Motion for Reconsideration is brought
pursuant to Fed. R. Civ. P. 59(e), which is specifically exempted
from the Local Rule’s 14-day time limit.
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Rule 59(e) motions must be

filed “no later than 28 days after the entry of the judgment,” Fed.
R. Civ. P. 59(e), therefore, Plaintiff argues, his motion is timely.
Defendant responds that Rule 59(e) does not apply because the
rule only applies to final judgments, not interlocutory orders.
Court agrees.

The

First, the Court begins with the title and text of

the rule itself: “Rule 59. New Trial; Altering or Amending a
Judgment.” (emphasis added).
orders.

The rule speaks of only judgments, not

This is significant given that the very next Rule -- Rule

60 -- is entitled “Relief from a Judgment or Order.” (emphasis
added). 1
Caselaw confirms this interpretation.

Chief District Judge

Simandle has explained,
The provisions of Rule 59 are designed to address orders
rendering a final judgment, not interlocutory orders
denying summary judgment. Because no final judgment has
been entered in this action pursuant to Rule 54(b), the
provisions of Rule 59, and its 28-day time limit, are
inapplicable here. Juzwin v. Amtorg Trading Corp., 718
F. Supp. 1233, 1235 (D.N.J. 1989). The proper procedural
mechanism for reconsideration of this interlocutory
order is Local Civil Rule 7.1(i). Motions under L. Civ.
R. 7.1(i) must be served and filed within 14 days after
the entry of the order.
In this case, the Defendant
filed his motion for reconsideration 28 days after the
court entered its order denying summary judgment.
Consequently,
Defendant
Perez’s
motion
for
reconsideration is untimely as it was filed outside the
fourteen-day period prescribed by L. Civ. R. 7.1(i) and
can be denied on this ground alone. United States v.
Balter, No. 93-536-01, 2010 U.S. Dist. LEXIS 75334 (July
26, 2010), aff'd 410 Fed. App. 428 (3d Cir. 2010)(denying
motion for reconsideration which was filed 30 days after
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It is unclear why Plaintiff has not sought relief under Rule 60.
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order was entered and 17 days after order was received
by the pro se party moving for reconsideration).
Mitchell v. Twp. of Willingboro Municipality Gov't, 913 F. Supp. 2d
62, 78 (D.N.J. 2013); see also, Jones v. Sanko Steamship Co., Ltd.,
2016 U.S. Dist. LEXIS 26205 at *10-11 (D.N.J. March 2,
2016)(Simandle, C.D.J.)(“[t]he provisions of Federal Rule of Civil
Procedure 59 address orders rendering a final judgment, not
interlocutory orders. . . . Because no final judgment has been
entered . . .

the provisions of Rule 59(e), and its 28-day time

limit, have no application. . . . Rather, Local Civil Rule 7.1(i)
provides the proper procedural mechanism for reconsideration of this
Court’s interlocutory summary judgment decision.”)(internal
citations omitted); Fields, Jr. v. Dickerson, 2017 U.S. Dist. LEXIS
47278 at *2 (D.N.J. March 30, 2017)(Hillman, D.J.)(“Local Civil Rule
7.1(i) governs motions for reconsideration.

Local Civil Rule 7.1(i)

will apply where no final judgment has been entered pursuant to Rule
54(b).”); McPhaul v. Astrue, 2011 U.S. Dist. LEXIS 17784 at *3
(D.N.J. Feb. 23, 2011)(Linares, D.J.)(“this Court issued an Order
denying the Commissioner’s 59(e) motion to alter or amend because it
was untimely.

This Court stated that the District of New Jersey’s

Local Rule 7.1(i) creates a procedure or filing motions for
reconsideration, and requires service and filing to be completed
within 14 days of the Court’s Order, and not 28 days as delineated
by Rule 59(e).”); Byrne v. Calastro, 2006 U.S. Dist. LEXIS 64054 at
*7 (D.N.J. Aug. 28, 2006)(Cavanaugh, D.J.)(“[Local Civil Rule
5

7.1(i)], rather than Rule 59 of the Federal Rules of Civil
Procedure, governs motions for reconsideration filed in the District
of New Jersey.”). 2
The Court holds that Local Civil Rule 7.1(i), and not Fed. R.
Civ. P. 59(e), governs Plaintiff’s instant application.
Accordingly, the motion is untimely.
B.
Defendants also argue that “Plaintiff’s alleged basis for
reconsideration was not raised previously and therefore is not
appropriate for reconsideration.” (Opposition Brief, p. 5)

Indeed,

it appears undisputed that Plaintiff asserts a new theory of his
Takings Clause claim as the basis of the instant motion, which is
the same theory simultaneously asserted in Plaintiff’s Second
Amended Complaint.
The Court agrees that reconsideration is inappropriate.

As a

matter of logic, the Court cannot reconsider an issue not previously
raised by the parties, and consequently not considered by the Court
in the first instance. See Shanahan v. Diocese of Camden, 2014 U.S.
Dist. LEXIS 37994 at *5-6 (D.N.J. Mar. 21, 2014)(Hillman,

2

The Eastern and Middle Districts of Pennsylvania, as well as the
District of Delaware, have reached the same holding in applying
their respective local rules, which are analogous to the District of
New Jersey’s rule. See ATD-American Co. v. Krueger Int’l, Inc., 2014
U.S. Dist. LEXIS 112507 at *28-29 (E.D. Pa. Aug. 12, 2014);
Arlington Industries, Inc. v. Bridgeport Fittings, Inc., 2011 U.S.
Dist. LEXIS 119438 at *7-8 (M.D. Pa. Oct. 17, 2011); ACLU v. Dept.
of Correction, 2015 U.S. Dist. LEXIS 55948 at *6 (D. Del. April 29,
2015).
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D.J.)(“‘[n]ot only are ... motions [for reconsideration] not a
substitute for the appellate process, such motions are not an
opportunity to argue what could have been, but was not, argued in
the original set of moving and responsive papers.’”)(quoting Bowers
v. Nat'l Collegiate Athletic Ass'n, 130 F. Supp. 2d 610, 613 (D.N.J.
2001)); Oritani Sav. & Loan Ass'n v. Fidelity & Deposit Co., 744 F.
Supp. 1311, 1314-15 (D.N.J. 1990)(denying a motion for
reconsideration of the Court’s summary judgment opinion, stating,
“this Court did not and could not have ‘overlooked’ this affidavit,
as it was not submitted in connection with the previous motion,
although [the moving party] certainly could have submitted it.”).
Accordingly, the Motion for Reconsideration will be denied for
this alternative reason.
IV.
For the reasons stated above, the Motion for Reconsideration
will be denied.

An appropriate Order accompanies this Opinion.

Dated: May 8, 2017

____s/ Noel L. Hillman___
Noel L. Hillman, U.S.D.J.

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