NEPOMUCENO v. ASTELLAS US LLC et al

Filing 108

OPINION AND ORDER that Plaintiff's 101 motion for reconsideration is DENIED; that Plaintiff's reply brief should be STRUCK from the docket and that Plaintiff's motion for clarification is DENIED. Signed by Judge Faith S. Hochberg on 9/23/13. (gmd, )

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
: Civil Case No. 11-4532 (FSH)
:
Plaintiff,
: OPINION & ORDER
:
v.
: September 23, 2013
:
ASTELLAS US LLC, et al.,
:
:
Defendants.
:
__________________________________________ :
RYAN NEPOMUCENO,

HOCHBERG, District Judge:
This matter comes before the Court upon Plaintiff’s motion for reconsideration or
clarification of the Court’s July 9, 2013 Opinion and Order [Dkt. No. 100], which granted-in-part
a motion for summary judgment filed by Defendants; and
it appearing that a motion for reconsideration is governed by Local Civil Rule 7.1(i); and
it appearing that Local Civil Rule 7.1(i) provides for the reconsideration of an order if the
motion is filed within 14 days after entry of the disputed order; and
it appearing that the purpose of a motion for reconsideration is “to correct manifest errors
of law or fact or to present newly discovered evidence,” Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985); see also P. Shoenfeld Asset Mgmt. LLC v. Cendent Corp., 161 F. Supp. 2d
349, 352 (D.N.J. 2001), Yurecko v. Port Authority Trans-Hudson Corp., 279 F. Supp. 2d 606,
609 (D.N.J. 2003); and

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it appearing that Local Civil Rule 7.1(i) requires that the moving party set forth
“concisely the matters or controlling decisions which the party believes the Judge . . . has
overlooked;” and
it appearing that “[a] party seeking reconsideration must show more than a disagreement
with the Court’s decision,” G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990); and
it appearing that “[a] mere ‘recapitulation of the cases and arguments considered by the
court before rendering its original decision’” does not warrant reargument, Elizabethtown Water
Co. v. Hartford Cas. Ins. Co., 18 F. Supp. 2d 464, 466 (D.N.J. 1998) (quoting Carteret Savings
Bank F.A. v. Shushan, 721 F. Supp. 705, 706 (D.N.J. 1989)); and
it appearing that a court may grant a properly filed motion for reconsideration for one of
three reasons: (1) an intervening change in the controlling law has occurred; (2) evidence not
previously available has become available; or (3) it is necessary to correct a clear error of law or
fact or prevent manifest injustice, Max’s Seafood Cafe, By Lou-Ann, Inc. v. Max Quinteros, 176
F.3d 669, 677 (3d Cir. 1999); Database Am., Inc. v. Bellsouth Advertising & Publ’g. Corp., 825
F. Supp. 1216, 1220 (D.N.J. 1993) (citing Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp.
1406, 1419 (D. Md. 1991)); see also Carmichael v. Everson, 2004 U.S. Dist. Lexis 11742, *2-3
(D.N.J. May 21, 2004); Miletta v. United States, Civ. No. 02-1349, 2005 WL 1318867, *8
(D.N.J. May 27, 2005); and
it appearing that a motion for reconsideration is improper when it is used to “‘ask the
Court to rethink what [it] had already thought through — rightly or wrongly,’” Ciba-Geigy Corp.
v. Alza Corp., Civ. No. 91-5286, 1993 WL 90412, *1 (D.N.J. March 25, 1993) (quoting Oritani
Sav. & Loan Ass’n v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990), rev’d on
other grounds, 989 F.2d 635 (3d Cir. 1993); and

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it appearing that because reconsideration of a judgment after its entry is an extraordinary
remedy, motions to reconsider or reargue are granted “very sparingly,” Maldonado v. Lucca, 636
F. Supp. 621, 630 (D.N.J. 1986); and
it appearing that disagreement with the Court’s initial decision as the basis for bringing a
motion “should be dealt with in the normal appellate process, not on a motion for reargument,”
Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988); and
it appearing that (1) there has been no intervening change in controlling law; (2) Plaintiff
has not presented new evidence that was not available for the Court to consider; and (3) there has
been no clear error of law or fact or manifest injustice; 1 and

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Plaintiff claims that the Court should reconsider its decision dismissing his Title VII
retaliation claim and state law claims because of a clear error of fact and law. Plaintiff argues
that the Court committed three errors. First, he argues that the Court erred when it stated that
Diana Betts, a former employee of Defendants, “resigned.” Plaintiff argues that there is no
evidence in the record that Betts “resigned,” and that Betts and Plaintiff were both targeted by
Defendants as problem employees because of alleged retaliation based on gender discrimination
and alleged retaliation due to complaints about Defendants’ off-label promotion of products.
Plaintiff argues that this provides the reason for why Defendants searched Betts’ email. Second,
Plaintiff argues that there was no evidence that Defendants enforced their email policy. In
support of this proposition, Plaintiff argues that Lapham provided inconsistent testimony
regarding Defendants’ email policy and why he searched Betts’ email. Plaintiff also argues that
he proffered evidence that shows Defendants did not enforce their email policy. Third, Plaintiff
argues that he adequately identified comparators, to wit, other representatives that left the
employment. Simultaneously, Plaintiff argues that he cannot provide a comparator because
Defendants do not enforce their email policy.
None of Plaintiff’s proffered factual “errors” entitle Plaintiff to reconsideration. First, the
manner in which Betts’ employment ended is of no moment to this case. For example, the Court
found, inter alia, that no reasonable fact finder “could infer causation between his alleged
protected activity and his termination.” (Opinion at 12.) The Court also found that “Defendants
have provided a legitimate, non-retaliatory reason for both the revocation of the CFT title . . . and
for Plaintiff’s termination.” How Betts left Defendants’ employment does not change these
conclusions and cannot support reconsideration. See Caldwell v. Atl. County Animal Shelter,
Civ. No. 08-4101, 2009 WL 2407408, *2 (D.N.J. Aug. 4, 2009) (“Plaintiff’s motion for
reconsideration must fail because Plaintiff has not shown that the Court overlooked ‘dispositive
factual matters or controlling decisions of law.’”). Second, Plaintiff attempts to re-argue his
selective enforcement theory that has already been addressed by this Court. And as previously
stated, Lapham’s testimony regarding, inter alia, why he searched Betts’ email is not
contradictory. (Opinion at 12.) Moreover, even if Lapham’s testimony were inconsistent,
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it appearing that Plaintiff filed reply papers without seeking the Court’s authorization as
required by Local Rule 7.1(d)(3). Therefore, the Court will not consider Plaintiff’s additional
arguments set forth in its reply brief 2; and
it appearing that Plaintiff also seeks “clarification” of the Court’s Order; and
it appearing that the Court’s Order is clear and unambiguous;
it is therefore on this 23rd day of September 2013,
ORDERED that Plaintiff’s motion for reconsideration is DENIED, and it is further
ORDERED that Plaintiff’s reply brief should be STRUCK from the docket, and it is
further
ORDERED that Plaintiff’s motion for clarification is DENIED.
“pointing to a single inconsistency does not automatically overcome a legitimate, nondiscriminatory [or nonretaliatory] reason for termination.” (Id.) Third, Plaintiff’s arguments
with respect to his alleged comparator still fail to identify someone who “engaged in the same
conduct without such differentiating or mitigating circumstances that would distinguish their
conduct or their employer’s treatment of them for it.” (Id.) The conduct at issue is the content
Plaintiff’s email, not the fact that Betts’ email was searched.
Moreover, Plaintiff raised all of these arguments in his summary judgment papers, thus
these arguments are a recapitulation of the arguments considered by the court before rendering
its original decision. See Elizabethtown Water, 18 F. Supp. 2d at 466. That an issue was not
explicitly mentioned in this Court’s decision does not mean it was overlooked. Ashton v. AT&T
Corp., Civ. No. 03-3158, 2006 U.S. Dist. LEXIS 4787, *4-*5 (D.N.J. Feb. 2, 2006); Byrne v.
Calastro, Civ. No. 05-68, 2006 WL 2506722, at *2 (D.N.J. Aug. 28, 2006). An argument may
be regarded as having been considered if it is presented to the court in written submissions.
Eichorn v. AT&T Corp., 1999 WL 33471890 (D.N.J. Aug. 23, 1999). The Court considered
these arguments and facts, in addition to the numerous other arguments Plaintiff raised in its
submissions, and after careful analysis, explained in its decision that “Plaintiff has failed to
adduce evidence from which a reasonable fact finder could infer causation between his alleged
protected activity and his termination. He thus failed to establish a prima facie case of Title VII
retaliation.” (Opinion at 12.) In addition, the Court found “that even if plaintiff had established a
prima facie case of retaliation, Defendants have provided a legitimate, non-retaliatory reason for
both the revocation of the CFT title (a national, nondiscriminatory reduction in the number of
CFTs), and for Plaintiff’s termination (Plaintiff’s vulgar and venomous email).” (Id.)
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The Court need not consider this unauthorized filing. See, e.g., Champion Labs., Inc. v. Metex
Corp., 677 F. Supp. 2d 748, 750 n.2 (D.N.J. 2010). Moreover, even after Defendants notified
Plaintiff and the Court of Plaintiff’s lack of compliance with the Local Rules, Plaintiff failed to
seek permission to file his reply.
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/s/ Faith S. Hochberg__________
Hon. Faith S. Hochberg, U.S.D.J.

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