DELRIO-MOCCI et al v. CONNOLLY PROPERTIES INC. et al

Filing 125

LETTER OPINION. Signed by Judge William J. Martini on 9/16/09. (gh, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

M A RT I N LU T H E R K I N G JR . FED E R A L B L D G . & U. S. CO U R T H O U S E 5 0 WA L N U T ST R E E T, P. O. B O X 419 N E WA R K , N J 07101-0419

[phone] WILLIAM J. MARTINI JUDGE

L E T T E R OPINION S e p te m b e r 16, 2009 C a rla P. Maresca, Esq. D e a s e y, Mahoney & Valentini, Ltd. 8 0 Tanner Street H a d d o n f ie ld , NJ 08033 A tto r n e y s for Plaintiffs E liz a b e th F. Lorell S c h w a rtz , Simon, Edelstein, Celso & Kessler, LLP 4 4 Whippany Road, Suite 210 P.O . Box 2355 M o rris to w n , NJ 07962 A tto r n e y s for Defendants S e a n R. Kelly S a ib e r LLC O n e Gateway Center, 13 th Floor N e w a rk , NJ 07102-5311 A tto r n e y s for the Individual Defendants (as to Count I only) R e: M a rib e l DelRio-Mocci, Linda Elliott, Robert Bolmer and Charlsey S h e p p a rd v. Connolly Properties Inc., David M. Connolly, Dana Ayala, and D a n ia Molina C iv il Action No. 08-2753 (WJM)

D e a r Counsel: 1

This matter comes before the Court on a Motion for Reconsideration by Plaintiff R o b e rt Bolmer ("Bolmer") pursuant to Local Rule of Civil Procedure 7.1(i). Specifically, B o lm e r seeks reconsideration of this Court's April 8, 2009 Order granting Defendants' M o tio n to Dismiss Count I of the Second Amended Complaint ("SAC"). Defendants o p p o se the motion. There was no oral argument. Fed. R. Civ. P. 78. For the reasons s ta te d below, Plaintiff's motion is DENIED. BACKGROUND P la in tiff resides in a Plainfield, NJ apartment complex operated by Defendants. (Pl.'s SAC ¶ 22). Plaintiff alleges that Defendants target illegal aliens as prospective te n a n ts because they believe that such individuals are likely to overpay for apartments in d is re p a ir and are unlikely to report housing code violations to the authorities. (Pl.'s SAC ¶ ¶ 4, 7, 41). As a result, Defendants have allegedly permitted living conditions in their a p a rtm e n t buildings to deteriorate without offering any commensurate reductions in rent. Id. Plaintiff further alleges that by renting apartments to individuals whom they know to be in the U.S. illegally, Defendants have violated the prohibition of the Immigration a n d Nationality Act ("INA") against harboring and encouraging or inducing an illegal a lie n to remain in the United States. 8 U.S.C. § 1324. Because a violation of the INA c o n s titu te s a predicate act of racketeering activity under the Racketeer Influenced and C o rru p t Organizations Act statute ("RICO"), Count I of the SAC ("Count I," "the RICO C o u n t," or "the Count") alleges that Defendants have violated RICO's conspiracy p ro v is io n . 18 U.S.C. § 1962. Plaintiff filed an initial complaint in federal court in June 2008 and subsequently a m e n d e d it twice. The SAC was filed in December 2008. Defendants filed their Motion to Dismiss Count I of the SAC on December 22, 2008. The motion was fully briefed on J a n u a ry 28, 2009. In February 2009, Plaintiff moved for leave to file a surreply but was d e n ie d by Order of this Court. The Court issued a letter opinion and related Order on A p ril 8, 2009, granting Defendants' Motion to Dismiss Count I of the SAC for failure to s ta te a claim. A t present, Plaintiff moves for reconsideration of the April 8, 2009 Order. Plaintiff seeks clarification from the Court on whether the motion to dismiss was granted w ith or without prejudice. Furthermore, Plaintiff alleges that the Court has made a clear e rro r of law or fact. A N A LY S IS A motion to reconsider pursuant to Fed. R. Civ. P. 59(e) and L. Civ. R. 7.1(i) is an " e x tre m e ly limited procedural vehicle," and "requests pursuant to these rules are to be g ra n te d sparingly." In re Audible, Inc. Securities Litigation, 2007 WL 4546823 (D.N.J.). 2

The Third Circuit has consistently held that the purpose of a motion to reconsider is to " c o rre c t manifest errors of law or fact or to present newly discovered evidence." Harsco C o r p . v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). To prevail on a motion for reconsideration, the moving party must demonstrate one o f the following: (1) an intervening change in the controlling law, (2) the existence of n e w evidence that was not available when the court issued its order, or (3) the need to c o rre c t a clear error of law or fact or to prevent manifest injustice. See North River Ins. C o . v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). To satisfy its burden, th e moving party must show "dispositive factual matters or controlling decisions of law" th a t were brought to the court's attention but not considered. P. Schoenfeld Asset Mgmt., L L C v. Cendant Corp., 161 F.Supp.2d 349, 353 (D.N.J. 1992). Significantly, a motion for reconsideration may not be used to re-litigate old m a tte rs or to argue new matters that could have been raised before the original decision w a s reached. P. Schoenfeld Asset Mgmt., 161 F.Supp.2d at 352. A party seeking re c o n s id e ra tio n must show more than a disagreement with the Court's decision. Recapitulation of the cases and arguments considered by the Court before rendering its o rig in a l decision fails to carry the moving party's burden. Id. I. D is m is s a l With Prejudice P la in tiff 's motion asks the Court to clarify whether its dismissal order was in te n d e d to be with or without prejudice, because the April 8, 2009 order did not specify. It is not necessary for the Court to clarify that the dismissal was with prejudice, because a s Plaintiff recognizes in its brief, the Federal Rules of Civil Procedure provide that all in v o lu n ta ry dismissals are with prejudice unless the dismissal order clearly states o th e rw is e . Fed. R. Civ. P. 41(b); Shane v. Fauvner, 213 F.3d 113, 115 (3d Cir. 2000) (f in d in g that an order which failed to specify whether the dismissal was without prejudice f u n c tio n e d as an adjudication on the merits). Nevertheless, because it may be helpful to th e parties, the Court will briefly clarify its position and the reasoning behind its decision to dismiss with prejudice. T h e Court dismissed Count I with prejudice and without leave to amend. Although a district court is authorized to grant a plaintiff leave to amend a complaint w h e n justice so requires, there is no requirement that it do so when amendment would be f u tile . Shane v. Fauvner, 213 F.3d at 115. Amendment is futile when even an amended c o m p la in t would still fail to state a claim for which relief could be granted. Id. Moreover, "where the plaintiff has already amended plaintiff's complaint and yet failed to a lle g e sufficient facts, the court may find that `[t]hree bites at the apple is enough,' and c o n c lu d e that it is proper to deny leave to replead. In re Insurance Brokerage Antitrust L itig a tio n , 2007 WL 2892700 (D.N.J.). H e re , dismissal with prejudice was appropriate because granting the Plaintiff leave to amend would have been futile. Plaintiff has already amended its complaint on two 3

separate occasions and has still failed to plead sufficient facts. A third opportunity to a m e n d , allowing Plaintiff a fourth opportunity to file a complaint in this action, is u n lik e ly to remedy this. Plaintiff's three bites at the apple are sufficient. F u rth e rm o re , Plaintiff's argument that the Court dismissed Count I prematurely a n d without reading Plaintiff's Surreply lacks merit. In the District of New Jersey, a s u rrre p ly can only be filed with leave of the Court and at the Court's discretion. See L. C iv. R. 7.1(d)(6). Contrary to Plaintiff's assertion, the Court did read Plaintiff's proposed s u rre p ly as well as the accompanying motion. However, after reviewing Plaintiff's s u b m iss io n s , the Court concluded that the conditions warranting a surreply were not met a n d denied the motion1 To the extent that Plaintiff sought to use a surreply to present new f a c ts or arguments that had not been documented in the SAC, this is impermissible. A n o n -m o v in g party cannot raise new facts or arguments in a sur-reply, because the moving p a rty will not have the opportunity to respond. See Smithkline Beecham PLC v. Teva P h a r m a c e u tic a ls USA, Inc., 2007 WL 1827208 (D.N.J). The Court decided not to grant P la in tiff leave to file a surreply in February 2009. Because Plaintiff has not pointed to a n y changes in the law, the existence of new evidence, or a clear error of law or fact made b y the Court, revisiting this decision now in a motion for reconsideration is inappropriate. P la in tiff 's argument that the Court should have ordered Plaintiff to file a RICO c a s e statement rather than dismiss the Count is similarly unavailing. First of all, the local ru le s provide that a court may require a party to file a RICO case statement, but it is not m a n d a to ry. See L. Civ. R. 16.1(b)(4). Therefore, this Court was under no obligation to o rd e r one. S e c o n d ly, a RICO case statement would not have benefitted Plaintiff, because the p u rp o s e of a RICO case statement is to enhance a vague complaint with additional details, n o t to raise new arguments or theories of the case for the first time. See Northland In s u r a n c e Co. v. Shell Oil Co., 930 F.Supp. 1069, 1074-1075 (D.N.J. 2006) (stating that " [ t]h e mission of the case statement is to amplify the allegations of the Complaint. It p ro v id e s clarity and precision in the statement of a civil RICO claim and thereby assists in th e identification, clarification and narrowing of issues."). H e re , the problem with Plaintiff's SAC is not that it was overly vague but rather th a t it relied upon an erroneous legal theory. As was explained in the letter opinion, the R IC O count was dismissed not because it was vague but because the Court did not agree w ith Plaintiff's theory that merely renting an apartment to illegal aliens constituted a v io la tio n of the INA. Indeed, the Count was dismissed pursuant to Fed. R. Civ. P. 1 2 (b )(6 ) because it appeared to the Court that no relief could be granted "under any set of f a c ts that could be proved consistent with the allegations." Hishon v. King & Spalding, Specifically, the Court found that because Defendant's reply brief did not raise any new arguments nor contain any statements requiring correction or further explanation, a surreply was unnecessary. 4
1

467 U.S. 69, 73 (1984) (as qtd. in the letter opinion). Therefore, any additional in f o rm a tio n that might have properly been included in a RICO case statement would not h a v e cured the problem. II. E r ro r of Law or Fact P la in tif f also asserts that the Court made a clear error of law or fact in its analysis. However, Plaintiff fails to identify any specific error. Instead Plaintiff improperly a tte m p ts to use this motion to re-litigate the original issue of whether renting apartments to illegal aliens constitutes harboring within the definition of the INA. Plaintiff argues that even if merely renting apartments to illegal aliens does not c o n s titu te harboring, the SAC contained numerous allegations that Defendants' conduct w e n t well beyond the mere renting of apartments. Pl.'s Br. at 11. Plaintiff reminds the C o u rt of its allegations that Defendants inquired into the immigration status of Spanishs p e a k in g prospective tenants, screened applicants to identify illegal alien tenants, and k n o w in g ly accepted invalid or false U.S. immigration documents, among others. Id. However, this argument is both inappropriate for a motion to consider and e rro n e o u s . This argument was already made in Plaintiff's opposition brief and cannot be re -litig a te d here. Moreover, the Court does not refute that Plaintiff made these allegations in the SAC. In fact, the Court considered them while formulating its opinion. However, th e s e additional allegations have no effect on the resolution of this issue. While the April 8 , 2009 letter opinion states that merely renting an apartment to illegal aliens falls short of h a rb o rin g , it does not state or imply that renting an apartment in conjunction with any o th e r type of conduct whatsoever does constitute harboring. Rather, the opinion makes it c le a r that the additional behavior must "prevent government authorities from detecting th e alien's unlawful presence." See U.S. v. Silveus, 542 F.3d 993, 1003 (3d Cir. 2008) (as q td . in the letter opinion). Conduct such as targeting illegal aliens, inquiring into tenants' im m ig ra tio n status, and knowingly accepting false documents does not prevent the g o v e rn m e n t from learning of the illegal aliens' existence. The only behavior that even c o m e s close is Defendants' alleged practice of segregating the illegal aliens from the o th e r residents, but even this falls short of the overt types of behavior that the caselaw has re c o g n iz e d as preventing the government from detecting the presence of illegal aliens. See U.S. v. Tipton, 518 F.3d 591, 595 (8th . Cir. 2008) (as qtd. in the letter opinion) (f in d in g that locating housing for illegal aliens, while also employing them, providing th e m with transportation to and from work to prevent their detection by the authorities, p a yin g for their rent and utilities, and maintaining counterfeit immigration documents c o n s titu te d harboring). C O N C L U S IO N F o r the reasons stated above, there is no basis to reconsider the Court's April 8, 2 0 0 9 letter opinion. Therefore, Plaintiff's motion is DENIED. The April 8, 2009 letter 5

opinion and order dismissing Count I of Plaintiff's Second Amended Complaint shall re m a in in place. Plaintiff shall not be granted leave to amend the complaint.

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

6