PECK v. DONOVAN
Filing
82
OPINION fld. Signed by Judge Jose L. Linares on 2/22/12. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES I. PECK IV, ESQ.,
Civil Action No.: 07-5500 (iLL)
Plaintiff,
V.
KENNETH JAMES DONOVAN,
OPINION
Defendant.
LINARES. District Judge.
This matter comes before the Court on Defendant Donovan’s motion for reconsideration
of the Court’s December 22, 2011 judgment entered in favor of Plaintiff Peck (CM/ECF No. 75)
pursuant to Federal Rule of Civil Procedure 59(e) and Local Rule 7.1(i) governing such motions.
No oral argument was heard. Fed. R. Civ. P. 78. For the reasons set Iorth in this Opinion,
Defendants’ motion is DENIED.
I. Background anti Procedural I-Iistorv
The Court will not set forth the underlying facts at length, as it has done so in previous
Opinions (CM/ECF Nos. 32, 54, 74) and the Court writes only for the parties. This action arose
out of Defendant Donovan’s breach of an attorney retainer agreement between Plaintiff Peck and
Defendant (hereafter “Retainer Agreement”). Pursuant to the terms of the Retainer Agreement,
Donovan was to reimburse Peck for costs and expenses advanced on his behalf during the course
of his representation in the matter of American Cyanamid Company v. Kenneth J. Donovan and
I
Impact Profiles, Inc. v. American Cyanamid Company and Phoenix Marketing
No. 91-1856. In the matter before this Court, the
parties
Group. Inc.. Civ
did not dispute that Donovan owed
Peck the amounts at issue; rather, the sole question at trial was whether Plaintiffs claim was
time barred.
On September 26 and October 6, 2011, the Court conducted a two day bench trial in the
matter of Peck v. Donovan. As discussed at length in the Court’s Opinion dated December 22,
2011, the Court heard testimony from both Plaintiff Peck and Defendant Donovan. Based on the
evidence adduced at trial and the parties’ trial briefs, the Court made its findings of fact and
conclusions of law and entered judgment in favor of Plaintiff in the amount of $35,326.27 plus
accrued interest. (CM/ECF Nos. 73-74).
On January 5, 2012, Defendant filed the instant motion for reconsideration, arguing that
the Court made several factual findings unsupported by the record and that the Court erred in its
conclusions of law. (CM/ECF No. 75, I). The Court addresses each of I)efendant’s arguments in
turn below. Plaintiff did not file a formal opposition, but wrote a letter to the Court voicing his
limited opposition concerns. Those concerns can be summarized as follows: (1) Defendant’s
motion for reconsideration is “frivolous to the point where a protracted response could itself be
looked upon as pointless and derided as a waste of court time and resources” because there was
no error during trial and there is presently no factual or legal basis for granting the motion before
the Court; (2) Defendant’s references to criminality on the part of Plaintiff in the instant motion
are solely an attempt to deride Plaintiffs character as there was no mention thereof at trial.
(CM/ECF No. 81).
II. LEGAL STANDARD
“A party seeking reconsideration must satisfy a high burden, and must
rely on one of
three major grounds: (1) an intervening change in controlling law; (2) the
availability of new
evidence not available previously; or (3) the need to correct clear error of law
or prevent
manifest injustice.” Leja v. Schmidt Mf.. Inc., 743 F.Supp.2d 444. 456 (D.N.J
., 2010) (quoting
N. River Ins. Co. V. CIGNA Reins. Co., 52 F.3d 1194. 1218 (3d Cir. 1995)). Signifi
cantly, a
motion for reconsideration is not a vehicle to re-litigate old matters or argue new
matters that
could have been raised before the court made its original decision. See, e.g., P. Schoen
feld Asset
Mgmt.. L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001). ‘A party
seeking
reconsideration must show more than a disagreement with the Court’s decision and
‘recapitulation of the cases and arguments considered by the court before rendering its origina
l
decision fails to carry the moving party’s burden” G-69 v. Degnan, 748 F. Supp. 274, 275
(D.N.J. 1990) (quoting Carteret Savings Bank. F.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J
1989), appeal dismissed, 919 F.2d 225 (3d Cir. 1990).
Reconsideration is an “extraordinary remedy,” which should be “granted very sparingly”
See L. Civ. R. 7.1(i) cmt. 6(d); see also Brackett v. Asheroft, No. 03-3988, 2003 WL 22303078,
at *2 (D.N.J., 2003) ([R]econsideration is an extraordinary remedy, that is granted very
sparingly’, and only when dispositive factual matters or controlling decisions of law were
brought to the court’s attention but not considered”). Motions made under Federal Rule
of Civil
Procedure 5 9(e) are governed by Local Rule 7.1, which requires that the moving party “set forth
concisely the matter or controlling decisions which the party believes the Judge or Magist
rate
Judge has overlooked.” Further, “[tjhe word ‘overlooked’ is the dominant term. meaning that
except in cases where there is a need to correct a clear error or manifest injustice, only
3
dispositive factual matters and controlling decisions of law which were
presented to the court but
not considered on the original motion may be the subject of a motion for
reconsideration.” jji
v. Schmidt Mfg., Inc., 743 F.Supp.2d 444, 456 (D.N.J., 2010) (citations
omitted). Finally, “{t]he
fact that an issue was not explicitly mentioned by the court does not on its
own entail that the
court overlooked the matter in its initial consideration.” Morton v. Fauver,
No. 97-5172, 2011
WL 2975532 *at 3 (D.N.J. 2011).
III. DISCUSSION
In his motion for reconsideration, Defendant specifically states that “[t]he basis for
this
motion is that key findings of fact made by the Court are not supported by the record
.
Furthermore, to the extent that these findings are supported by the record, they
do not support the
Court’s legal conclusions with respect to the tolling of the statute of limitations
is determined by
controlling New Jersey case law.” (CM/ECF No. 74, 1). Although Defendant
does explicitly
state on which ground he relies, thus unless otherwise noted herein, the Court will
presume that
Defendant attempts to rely on the third ground, the need to correct clear error of
law or prevent
manifest injustice. A decision suffers from ‘clear error’ only if the record cannot
support the
findings that led to that ruling.”
Lcj 743 F.Supp.2d at 456. With this in mind, the Court now
turns to the arguments advanced by Defendant.
A. Factual Arguments
As an initial matter, the Court emphasizes that only dispositive factual matter
s which
were presented to the Court but not considered may be the subject of a motion
for
reconsideration. Leja v. Schmidt Mfg., Inc., 743 F.Supp.2d 444, 456 (D.N.J
., 2010) (citations
omitted). Everything that Defendant submits in support of his argument
that the certain factual
4
findings were in error was previously presented to the Court either in trial briefs, during
trial, or
in post-trial proposed findings of fact, and included in the Court’s Opinion dated
December 22,
2011 (CM/ECF No.). A motion for reconsideration is not a vehicle through which dissatisfied
a
party may relitigate his case. See çg P. Schoenfeld Asset Mgmt., 161 F.Supp.2d. at
1
352.
First, Defendant argues that the Court erred in its “unsupported and unreasonable
inference that in late 1994 or early 1995 Donovan confirmed his willingness to repay Peck
for
the litigation costs advanced by Peck.” (CM/ECF No. 77, 1-2). It bears mention that this
in
regard Defendant mischaracterizes the Courts finding. Specifically, the Court did not find that
Donovan “confirmed his willingness to repay Peck,”; rather it did find that the reasonable
inference from the statements made by Donovan was that Peck would not receive any fees in
connection with the American Cyanarnid Litigation but that it was “not as credible that by those
statements Defendant also meant that Peck would not be reimbursed for advanced costs.”
(CM!ECF No. 74, 5).
With regard to Donovan’s statement that Peck would “never see a dime” out of the
litigation, Defendant argues that the Court’s inference that this “meant only that Peck would not
receive any fees but would be reimbursed for advanced costs” was unreasonable for the
following reasons: (1) “Donovan’s blunt message to Peck could not possibly have intended
to
express the far more subtle message that Donovan would be willing to repay Peck’s costs,
especially coupled with the statement that Donovan would sue Peck if he ever had
the funds to
do so’; (2) Donovan’s statement must be viewed in the context of Donovan reacting to
Peck
abandoning the case and leaving Donovan to struggle pro se against one of the larger
The Court notes that in Defendant’s motion for reconsideration (CM/ECF No. 75) he
states that these events
occurred in late 2004 or early 2005. However, in a subsequent filing (CM/ECF No.
77), Defendant corrects this
error and clarifies that he meant to argue that the Court made the “unsupported and
unreasonable inference that in
late 1994 or early 1995 Donovan confirmed his willingness to repay Peck
.
.
.
corporations in the country in a case venued in New Jersey, far from Donovan’s North
Carolina
residence”; (3) “Peck himself acknowledged that Donovan made the statem
ent at issue, and Peck
never claimed that he understood the statement to refer oniy to costs.” (CM/ECF No.
75, 2).
Defendant additionally asserts that the Court’s finding was based on certain proposed
findings of
fact submitted by the parties. However, the Court emphasizes, as discussed in the Opinion
dated
December 22, 2011 (CM/ECF No. 74), that factual findings were based on the evidence adduced
at trial, taking into account witness credibility. Particularly in conjunction with other evidence to
be discussed below, such as that an attorney involved with the American Cyanamid litigation
was in contact with Peck regarding repayment of fees thereafter, Defendant fails to meet his
burden in this regard.
Next, Donovan additionally relies on the statement by Donovan that Peck would “never
see a dime” to argue that this position never changed and that neither Defendant nor his
representatives indicated that Peck would be repaid. (CM/ECF No. 75, 7). Again, Defendant is
attempting to relitigate issues before the Court and, in any event, Defendant in no way accounts
for the fact that Defendant’s representatives acknowledged that the amounts were owed
thereafter and even submitted Plaintiffs costs to the Court in the underlying matter. (CM/ECF
No. 74, 11-12).
Third, Defendant argues that the Court significantly erred in its discussion of the August
14, 1995 letter from attorney Greenman to Peck. (CM/ECF No. 75, 3). Defendant also states that
the Court’s description of Greenman as “an attorney involved in the American Cyanamid
Litigation is incorrect” because at the time of the letter at issue, Greenman was only an attorney
who was willing to become involved. (Id.). 1-lowever, it is undisputed that Mr. Greenman
became involved with the litigation at some point. The relevance of that letter to the Courts
6
findings was not at what point Mr. Greenman became involved, rather the Court found
it
significant that the letter acknowledged the amounts due Peck and, despite the fact that
it was
sent after Donovan said that Peck would “never see a dime” out of the litigation, tends
to show
that Donovan did not contemplate breaching the contract at that time.
At trial the Court heard testimony that Mr. Greenman defended the appeal on behalf of
Mr. Donovan and received and disbursed the judgment proceeds following the appeal. (See
ç.g.
Tr. 37:21-38:10). Also, Plaintiff testified as follows:
Now as early as 1995, Mr. Greenman knew the precise amount of quote,
expenses, close quote, I personally and legitimately incurred during my
participation in the American Cyanarnid litigation, the total being $35,325.27. On
th,
August 4 1995, Mr. Greenman wrote me a letter confirming the exact debt of
Mr. Donovan and seeking to make arrangements for its post judgment payment,
quote, out of any recovery in this case, close quote.
(Tr. 3 8:17-24). The Court notes that Defendant lodged a very similar objection if not the same in
substance at trial stating in essence that Mr. Greenman never represented Mr. Donovan before
this Court and that “Mr. Greenman was not in a position to modify the retainer agreement.” (Tr.
39:2-5, 40:16-19). However, the Court ruled that the evidence went to weight, not admissibility.
The Court explained that the letter was “informative as to the knowledge of Mr. Greenman at
the
time, once he did represent [Donovan] and he did the disbursement. I think the totality of
the
circumstances needs to be looked at by the Court, so I am going to accept this letter.” (Tr. 40:2541:4). The Court additionally noted that “Mr. Greenman eventually did the disbursement,
SO
what he knew or did not know at this particular time may be of some relevance.” (Tr. 39:24-40).
Thus. while the Court’s finding of fact (CM/ECF No. 74
¶ 10) generally described Mr.
Greenman in that portion of the Opinion and did not specify at which particular point Mr.
7
Greenman became involved in the litigation, Defendant does not meet his burden of
demonstrating that the Court overlooked facts presented to the Court.
In his motion, Defendant additionally writes that “Greenman’s contingent acceptance of
Peck’s claim for costs expressed in 1995 could not possibly have implied to Peck some six years
later that Greenman and, more importantly, Donovan had acknowledged Peck’s entitlement to be
repaid these costs in any other circumstances.” (CM/ECF No. 3). However, Defendant’s
argument plainly disregards the statements made at trial, and he does not refer to the transcript in
support of his arguments here or anywhere else in his brief. Again, the Court found this fact
significant because it reasonably indicated to Peck that he would be paid. As apparent from the
portions of the Transcript quoted above, Defendant is merely attempting to relitigate issues
previously before the Court.
Next, Defendant argues that the Court’s finding that Peck acted diligently to discover his
cause of action cannot be supported by the record. (CM/ECF No. 75, 8). Specifically,
Defendant states that “Peck’s delivery of affidavits detailing costs was irrelevant to any concept
of due diligence or to Donovan’s obligations owed to Peck. Contrary to the Court’s [Ojpinion.
the delivery of these affidavits did not place Donovan or his attorneys on notice that Peck
expected to collect the monies due him.” (CM/ECF No 75, 8). However, once again, Defendant
does not argue that the Court overlooked facts presented to the Court. but attempts to relitigate
issues by arguing that based on the same facts addressed in the Opinion, the Court reached the
wrong conclusion. Without more, that is an argument more appropriately made on appeal,
it
exceeds the scope of a motion for reconsideration.
In addition, in further support of this argument, Defendant states that “it was probable
that in and around November 2001 Peck was simply not paying attention to the money he was
8
owed by Donovan. On October 25, 2001, Peck was temporarily suspended form
the practice of
law as a result of pleading guilty to one count of knowingly and willfully posses
sing child
pornography.
.
.
.“
In this respect, Defendant may not now make arguments that it could have
previously raised if appropriate. Leja v. Schmidt MfgJnc., 743 F.Supp.2d at 456
(“Since the
evidence relied upon in seeking reconsideration must be ‘newly discovered,’
a motion for
reconsideration may not be premised on.
.
.
evidence which was available but not presented
prior to the earlier ruling”). The Court does not question that Defendant was previo
usly aware of
such arguments and prepared to make them at trial, as Defendant improperly submit
ted
documents to the Court to that effect along with its exhibits that had been proper
ly moved into
evidence. The Court declined to consider such documents at the time, as they were
at no time
mentioned or even alluded to during the course of the trial nor were they in eviden
ce. On this
issue, Plaintiff states as follows: “Reiteration of previous attempts to disparage my charac
ter to
engender bias, and for no other reason, appears especially shameless and shame
ful now in view
of the fact that not one single word was spoken at trial about the conviction, or
about any
circumstance remotely related to it. Finding nothing in the record with which
to impugn the
contrary result, my adversary resorts to incendiary matter entirely outside the
record, thereby
providing Your Honor with further legitimate justification to reject the motion
.” (CM/ECF No.
81, 1) Regardless of Defendant’s motive for raising this issue now, the Court
declines to
consider this argument as doing so is certainly beyond the scope of this motion
.
Finally, Defendant argues that “the [C]ourt’s final factual error is its conclu
sion that the
breach of the Retainer Agreement accrued after the distribution ofjudgment
proceeds ‘when
Peck was fully able to ascertain that Donovan would not repay him.
.
.
The record supports only
the much more limited fact that Peck was not paid at that time, just as he was
not paid in
9
November 2000 or any time thereafter.” (CMIECF No. 75,10). Again, this issue was already
presented to the Court and litigated at length. Defendant’s argument with regard to this point
demonstrates no more than mere disagreement with the Court’s decision.
B. Legal Amumenis
Again, the Court emphasizes that a motion for reconsideration is not a vehicle to
relitigate issues previously before the Court nor is it appropriate for a party to make argum
ents
that it may have previously made. However, in his moving brief, Defendant submits that “[t]he
Court’s application of the discovery rule overlooks and this applies controlling New Jersey
authority.” (CM)ECF No. 75,4). To the extent Defendant is attempting to assert that the Court
overlooked controlling New Jersey authority, the Court notes that “[for a matter to have been
overlooked, the mauer must have been brought to the attention of the court at the time the court
made its decision on the underlying matter it is being asked to reconsider.” Morton v. Fauver. at
3. Even a cursory review ofthe Court’s Opinion reveals that Defendant did not overlook this
issue.
With regard to this point, Defendant additionally argues that “based on the unambiguous
language of the retainer agreement, there is no doubt that Donovan owed Peck costs on
December 15, 2000,” at the conclusion of the litigation. (CM/ECF No. 75,4). Defendant also
harps on that Peck knew when the monies became due. As discussed in the Court’s previous
Opinion denying summaryjudgment and its Opinion at issue here, when the obligation becam
e
due and when the breach occurred are not necessarily one in the same. There is no questio
n that
the parties have previously litigated this issue and Defendant could have previously cited
10
to the
cases it relies on here to argue that the Court’s decision was in error. Indeed, this was primar
a
y
issue dealt with by the Court in its prior Opinions and at trial.
Finally, in a letter supplementing Defendant’s moving brief and making certain
corrections, Defendant directs the Court to a New Jersey Supreme Court decision,
McDade v.
Siazon, 208 N.J. 463, 32 A.3d 1122 (201 1), which was issued on the same day as this
Court’s
previous Opinion. (CM/ECF No. 77). To the extent that Defendant is attempting to
argue that
there has been an intervening change in controlling law without explicitly so stating, this
argument is unavailing. As Defendant points out, this case involved the New Jersey Tort Claims
Act, N.J.S.A. 59:1-1 etçq, not a breach of contract action. (CM/ECF No. 77, 2).
In any event, Defendant cites to language from the opinion which directly quotes a
previous case, Beauchamp v. Amedio, 164 N.J. 111, 751 A.2d 1047 (N.J. 2000). in which the
New Jersey Supreme Court specified the proper analysis for that type of case as follows: (1)
“determine when the claim accrued. The discovery rule is part and parcel of such an inquiry
because it can toll the date of accrual”; (2) determine whether notice of a claim was filed within
ninety days; (3) if notice was not properly filed. “decide whether extraordinary circumstances
exist justifying a late notice.” (CM/ECF No. 77, citing McDade). The New Jersey Supreme
Court continues, noting that ‘[a]lthough occasionally the facts of a case may cut across those
issues, they are entirely distinct. Id., at 5 (quoting Beauchamp, 164 N.J. at 118-19 Defend
).
ant
writes:
In the present case, the Court determined that the claim accrued on November 15,
2000, at the conclusion of the trial court litigation. Since this is a contract case.
the plaintiff certainly knew Donovan was responsible for repayment of advanced
costs. There was nothing left to discover, and therefore the discovery rule does
not apply.
11
(CM!ECF No. 77, 2). However, in making this argument Defendant once again mischa
racterizes
the Court’s Opinion. Significantly, the Court did not hold that the claim accrued on
November
15, 2000, at the conclusion of the trial court litigation; rather, as unequivocally
stated by the
Court, [t]hus, Plaintiff’s claim did not accrue until, at the very least, November
29, 2001, the
date that satisfaction of judgment was entered by the District Court.” (CM/ECF No.
74, 12). In
any event, as the case and even the particular language relied upon by Defendant therein
involves
a separate type of analysis and is directly quoted from an opinion issued in 2000, the Court
cannot conclude that McDade is intervening controlling law here.
V. CONCLUSION
As discussed above, the movant must meet a high burden, as reconsideration is an
extraordinary remedy which should be granted sparingly. Thus, based on the reasons detaile
d
above, Defendant Donovan’s motion for reconsideration of the Courts December 22, 2011
judgment entered in favor of Plaintiff Peck (CM/ECF No. 75) is DENTED.
An appropriate Order accompanies this Opinion.
DATED:
Jo e L. Liñares
States District Court
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?