SWIFT v. PANDEY et al

Filing 349

OPINION. Signed by Judge Brian R. Martinotti on 4/7/2020. (bt, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
__________________________________________
:
ROBERT SWIFT,
:
:
Plaintiff,
:
: Case No. 2:13-cv-00650-BRM-JAD
v.
:
:
RAMESH PADNEY, et al.,
:
:
OPINION
Defendants.
:
__________________________________________:
MARTINOTTI, DISTRICT JUDGE
Before this Court is pro se Plaintiff Robert Swift’s (“Plaintiff”) “motion for reconsideration
of order for adjournment.” (ECF No. 345.) Defendants Ramesh Pandey and Bhuwan Pandey
(“Defendants”) oppose the motion. (ECF No. 347.) Having reviewed the submissions filed in
connection with the motion and having declined to hold oral argument pursuant to Federal Rule of
Civil Procedure 78(b), for the reasons set forth herein and for good cause shown, Plaintiff’s Motion
for Reconsideration (ECF No. 345) is DENIED.
I. BACKGROUND
The Court writes for the parties, who are presumed to be familiar with the facts and
background of the case, and provides the following as relevant to this motion.
On January 16, 2020, this Court entered a scheduling order setting this matter down for a
bench trial to begin on April 13, 2020. (ECF No. 336.) On March 16, 2020, 1 this Court held a

1

For context, also on March 16, 2020, Governor Phil Murphy signed Executive Order #104,
closing schools and many businesses. Court security announced visitor screening procedures and
restrictions. Chief Judge Freda Wolfson signed Standing Orders 20-02 and 20-03, which, inter
alia, adjourned jury trials and ordered certain dates be counted as “excluded time” under the

telephone conference and ordered the bench trial adjourned, to be rescheduled at a later date, in
response to the COVID-19 virus (coronavirus) outbreak in New Jersey and worldwide. (ECF Nos.
343, 344.)
On March 25, 2020, Plaintiff filed—and Defendants opposed—a motion for
reconsideration of the adjournment. 2 (ECF Nos. 345, 347.) Plaintiff argues the trial should go
forward using online video technology, arguing the required technology is available, avoiding
further delay in an old case where defendants and witnesses are aging. (ECF No. 345.) Defendants
contend a fully remote trial—“with all parties and witnesses testifying from some unknown
network of remote connections”—would not work, logistically, and that Federal Rule of Civil
Procedure 43 requires testimony to be taken in open court with limited exceptions. 3 (ECF No.
347.)
II. LEGAL STANDARDS
A. Motion for Reconsideration
While not expressly authorized by the Federal Rules of Civil Procedure, motions for
reconsideration are proper pursuant to this District’s Local Civil Rule 7.1(i). See Dunn v. Reed

Speedy Trial Act, § 3161(h)(7)(A). Several standing and executive orders have been signed since
that time, resulting in more stringent protocols.
2

Plaintiff also states he is moving for “reconsideration of ECF 343 pursuant to Federal Rule of
Civil Procedure 60(b)(6).” (ECF No. 345 at 2.) The Court addresses both standards below. To the
extent Plaintiff’s motion is one for reconsideration, his reply is improper, L.Civ.R. 7.1(d)(3), but
the Court has considered it, nonetheless.
3

Rule 43(a) states:
In Open Court. At trial, the witnesses’ testimony must be taken in
open court unless a federal statute, the Federal Rules of Evidence,
these rules, or other rules adopted by the Supreme Court provide
otherwise. For good cause in compelling circumstances and with
appropriate safeguards, the court may permit testimony in open
court by contemporaneous transmission from a different location.
Fed. R. Civ. P. 43(a).

Group, Inc., Civ. No. 08–1632, 2010 WL 174861, at *1 (D.N.J. Jan 13, 2010). The comments to
that Rule make clear, however, that “reconsideration is an extraordinary remedy that is granted
‘very sparingly.’” L.Civ.R. 7.1(i) cmt. 6(d) (quoting Brackett v. Ashcroft, Civ. No. 03-3988, 2003
WL 22303078, *2 (D.N.J. Oct. 7, 2003)); see also Langan Eng’g & Envtl. Servs., Inc. v. Greenwich
Ins. Co., Civ. No. 07–2983, 2008 WL 4330048, at *1 (D.N.J. Sept. 17, 2008) (explaining that a
Motion for Reconsideration under Rule 7.1(i) is “‘an extremely limited procedural vehicle,’ and
requests pursuant to th[is] rule[] are to be granted ‘sparingly’”) (citation omitted); Fellenz v.
Lombard Investment Corp., 400 F. Supp. 2d 681, 683 (D.N.J. 2005).
A motion for reconsideration “may not be used to relitigate old matters, nor to raise
arguments or present evidence that could have been raised prior to the entry of judgment.” P.
Schoenfeld Asset Mgmt., LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001). Instead,
Local Civil Rule 7.1(i) directs a party seeking reconsideration to file a brief “setting forth concisely
the matter or controlling decisions which the party believes the Judge or Magistrate Judge has
overlooked.” L.Civ.R. 7.1(i); see also Bowers v. Nat’l Collegiate Athletic Ass’n, 130 F. Supp. 2d
610, 612 (D.N.J. 2001) (“The word ‘overlooked’ is the operative term in the Rule.”)
To prevail on a motion for reconsideration, the moving party must show at least one of the
following grounds: “(1) an intervening change in the controlling law; (2) the availability of new
evidence that was not available when the court [made its initial decision]; or (3) the need to correct
a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999); see also N. River Ins. Co. v. CIGNA Reinsurance, Co., 52 F.3d 1194,
1218 (3d Cir. 1995) (internal quotations omitted). A court commits clear error of law “only if the
record cannot support the findings that led to the ruling.” ABS Brokerage Servs. v. Penson Fin.
Servs., Inc., No. 09–4590, 2010 WL 3257992, at *6 (D.N.J. Aug. 16, 2010) (citing United States

v. Grape, 549 F.3d 591, 603–04 (3d Cir. 2008)) “Thus, a party must . . . demonstrate that (1) the
holdings on which it bases its request were without support in the record, or (2) would result in
‘manifest injustice’ if not addressed.” Id. Moreover, when the assertion is that the Court
overlooked something, the Court must have overlooked some dispositive factual or legal matter
that was presented to it. See L.Civ.R. 7.1(i).
In short, “[m]ere ‘disagreement with the Court’s decision’ does not suffice.” ABS
Brokerage Servs., 2010 WL 3257992, at *6 (quoting P. Schoenfeld, 161 F. Supp. 2d at 353); see
also United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999) (“Mere
disagreement with a court’s decision normally should be raised through the appellate process and
is inappropriate on a motion for [reconsideration].”); Florham Park Chevron, Inc. v. Chevron
U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988); Schiano v. MBNA Corp., Civ. No. 05–1771,
2006 WL 3831225, at *2 (D.N.J. Dec. 28, 2006) (“Mere disagreement with the Court will not
suffice to show that the Court overlooked relevant facts or controlling law, . . . and should be dealt
with through the normal appellate process. . . .”) (citations omitted).
B. Rule 60(b)
“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances including fraud, mistake, and newly discovered
evidence,” Gonzalez v. Crosby, 545 U.S. 524, 529, 125 S. Ct. 2641, 162 L.Ed.2d 480 (2005), as
well as “inadvertence, surprise, or excusable neglect,” Fed. R. Civ. P. 60(b)(1). “The remedy
provided by Rule 60(b) is extraordinary, and special circumstances must justify granting relief
under it.” Jones v. Citigroup, Inc., No. 14-6547, 2015 WL 3385938, at *3 (D.N.J. May 26, 2015)
(quoting Moolenaar v. Gov’t of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987). A Rule
60(b) motion “may not be used as a substitute for appeal, and . . . legal error, without more cannot

justify granting a Rule 60(b) motion.” Holland v. Holt, 409 F. App’x 494, 497 (3d Cir. 2010)
(quoting Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988)). A motion under Rule 60(b) may not
be granted where the moving party could have raised the same legal argument by means of a direct
appeal. Id.
III. DECISION
Plaintiff argues the trial should go forward using online video technology but has not set
forth anything he “believes the Judge . . . has overlooked,” L.Civ.R. 7.1(i), nor has he demonstrated
the existence of “(1) an intervening change in the controlling law; (2) the availability of new
evidence that was not available when the court [made its initial decision]; or (3) the need to correct
a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café, 176 F. 3d at 677.
Plaintiff’s disagreement with the Court’s decision is not grounds for reconsideration. Moreover,
Plaintiff has not alleged any mistake, inadvertence, surprise, excusable neglect, fraud, or
misrepresentation that would warrant the extraordinary relief from the order under Rule 60(b).
Fed. R. Civ. P. 60(b)(1)-(3); Gonzalez, 545 U.S. at 529; Jones, No. 14-6547, 2015 WL 3385938,
at *3. Accordingly, Plaintiff’s motion is DENIED.
IV. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Reconsideration (ECF No. 345) is
DENIED. An appropriate order will follow.

Date: April 7, 2020

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE