REED v. SCHEFFLER et al

Filing 37

MEMORANDUM OPINION & ORDER denying 25 Motion for Reconsideration. Signed by Judge Noel L. Hillman on 5/8/2017. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WILLIAM A. REED, JR.
as personal representative
for ELSIE M. REED, an
incompetent individual, and
WILLIAM A. REED, JR.,
individually,

1:16-cv-00423-NLH-AMD
MEMORANDUM OPINION & ORDER

Plaintiff,
v.
KAREN SCHEFFLER
Mayor of the Borough of
Palmyra, TRACY KILMER
Housing Official, Borough of
Palmyra, BOROUGH OF PALMYRA,
Defendants.

APPEARANCES:
PETER M. KOBER
1876 GREENTREE ROAD
CHERRY HILL, NJ 08003
On behalf of Plaintiff
RICHARD L. GOLDSTEIN
ASHLEY L. TOTH
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA
WOODLAND FALLS CORPORATE PARK
200 LAKE DRIVE EAST
SUITE 300
CHERRY HILL, NJ 08002
On behalf of Defendant Karen Scheffler

HILLMAN, District Judge
WHEREAS, pending before the Court is the motion of
Plaintiff for reconsideration of the Court’s dismissal of his

free speech claims against Defendant Karen Scheffler, the Mayor
of the Borough of Palmyra, when Scheffler responded to
Plaintiff’s statements in the Burlington County Times about his
concerns over the Borough’s ordinance requiring a home owner to
obtain a certificate of occupancy from the Borough prior to the
sale of a home; and
WHEREAS, the Court dismissed Plaintiff’s First Amendment
claims because Plaintiff’s complaint contained no allegations
that his free speech rights were chilled, or that he suffered
any sort of retaliation; 1 and
WHEREAS, Plaintiff is asking the Court to reconsider its
decision, arguing that if pleading deficiencies were fatal to
his claims, he should be permitted to amend his claims; and
WHEREAS, Plaintiff’s brief provides suggested amendments to
three paragraphs in his complaint; and
WHEREAS, a motion for reconsideration may be treated as a
motion to alter or amend judgment under Fed. R. Civ. P. 59(e),
or as a motion for relief from judgment or order under Fed. R.
Civ. P. 60(b), or it may be filed pursuant to Local Civil Rule

1

The Court also dismissed Plaintiff’s defamation claim because
Scheffler’s factually true statements were not actionable, and
her remaining statements were opinions that did not rise to the
level of contempt or ridicule, or of such a nature to harm
plaintiff’s reputation in the community. Plaintiff has not
sought reconsideration of this finding.
2

7.1(i); 2

WHEREAS, the purpose of a motion for reconsideration

“is to correct manifest errors of law or fact or to present
newly discovered evidence,” Max's Seafood Cafe ex rel. Lou–Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); and
WHEREAS, a judgment may be altered or amended only if the
party seeking reconsideration shows: (1) an intervening change
in the controlling law; (2) the availability of new evidence
that was not available when the court granted the motion for
summary judgment; or (3) the need to correct a clear error of
law or fact or to prevent manifest injustice, id.; and
WHEREAS, the Court finds that Plaintiff’s motion for
reconsideration does not meet the listed items that warrant
reconsideration; and
WHEREAS, the Court further finds that even though Third
Circuit precedent “supports the notion that in civil rights
cases district courts must offer amendment--irrespective of
whether it is requested--when dismissing a case for failure to

2

Plaintiff does not cite to any of these Rules, but the Court
will construe Plaintiff’s motion, filed 28 days after the
Court’s Opinion, to be brought pursuant to Fed. R. Civ. P. 59(e)
because that rule is substantively most applicable to the relief
Plaintiff is seeking, and the rule’s 28-day deadline causes
Plaintiff’s motion to be timely filed. Cf. Fed. R. Civ. P.
59(e) (a motion to alter or amend judgment must be filed no
later than 28 days after the entry of judgment); L. Civ. R.
7.1(i) (must be filed within 14 days); Fed. R. Civ. P. 60(b)
(must be filed within one year, but a party must demonstrate the
same elements as a Rule 7.1(i) motion).
3

state a claim,” that notion does not apply if “doing so would be
inequitable or futile,” Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); and
WHEREAS, the Court has reviewed Plaintiff’s proposed
amendments and finds that they do not change the Court’s prior
analysis, see Docket No. 23 at 7 (explaining that a court cannot
credit either “bald assertions” or “legal conclusions” in a
complaint when deciding a motion to dismiss); Docket No. 23 at
10-11 (simply adding to his complaint that Plaintiff, or any
other ordinary and reasonable person, would be fearful of
exercising his rights to speak to the council or newspaper in
the future after Scheffler’s remarks is a “bald assertion” or
“legal conclusion,” and does not establish the requisite causal
connection); Docket No. 23 at 14 n.3 (explaining that
Plaintiff’s conclusory statements that his home was in good
repair must be supported by some minimal factual basis); and
WHEREAS, the Court’s denial of his motion for
reconsideration and its decision not to offer Plaintiff the
opportunity to amend his complaint sua sponte does not prevent
Plaintiff from seeking leave to file an amended complaint
pursuant to Fed. R. Civ. P. 15; 3

3

Plaintiff’s motion indicates that the Estate of Elsie M. Reed
should be substituted for Elsie M. Reed because Ms. Reed has
passed away since the filing of the complaint. Regardless if
Plaintiff files a Rule 15 motion, Plaintiff shall comply with
4

THEREFORE,
IT IS on this

8th

day of

May

, 2017

ORDERED that Plaintiff’s MOTION for Reconsideration [25]
be, and the same hereby is, DENIED.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

Federal Civil Procedure Rule 25 concerning the substitution of
parties.
5