GERASIMOV v. CARAVAN INGREDIENTS, INC.
Filing
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OPINION. Signed by Judge William J. Martini on 8/20/13. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:13-cv-01925 (WJM)
VASILIY GERASIMOV,
Plaintiff,
OPINION
v.
CARAVAN INGREDIENTS, INC.,
Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Vasiliy Gerasimov filed this action against Defendant Caravan
Ingredients, Inc. (“Caravan”). This matter comes before the Court on Plaintiff’s motion
for reconsideration. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons
set forth below, Plaintiff’s motion for reconsideration is DENIED.
I.
BACKGROUND
On January 23, 2013, Plaintiff filed a Complaint in New Jersey state court
asserting seven causes of action, including a wrongful discharge claim, an employment
discrimination claim, and a worker’s compensation retaliation claim. Plaintiff essentially
alleges that he was injured while working in Defendant’s food processing plant, and that
he was terminated in retaliation for taking worker’s compensation. On March 27, 2013,
Defendant removed the action to this Court, and on April 2, 2013, Defendant filed a
motion to dismiss. On July 2, 2013, this Court entered an Opinion and Order dismissing
Counts 1-6 of the Complaint without prejudice, and dismissing Count 7, Plaintiff’s
worker’s compensation retaliation claim, with prejudice. The Court found that Plaintiff
was barred from pursuing his worker’s compensation retaliation claim in court because
he had already opted to pursue this claim before the Office of Administrative Law
(“OAL”). Gerasimov v. Caravan Ingredients, Inc., No. 13-1925, 2013 WL 3336758, at
*3 (D.N.J. July 2, 2013) (“Because Plaintiff has opted to pursue this claim
administratively, he is barred from pursuing it in court”).
Plaintiff now moves for reconsideration of the dismissal of Count 7. He argues
that Count 7 should be reinstated because, on May 31, 2013, he voluntarily withdrew his
OAL claim in order to pursue his worker’s compensation retaliation claim in court.
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II.
LEGAL STANDARD
A motion for reconsideration may be granted only if: (1) there has been an
intervening change in the controlling law; (2) evidence not available when the Court
issued the subject order has become available; or (3) it is necessary to correct a clear error
of law or fact to prevent manifest injustice. Max’s Seafood Café by Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration
should not be treated as an appeal of a prior decision. See Morris v. Siemens
Components, Inc., 938 F. Supp. 277, 278 (D.N.J. 1996) (“A party’s mere disagreement
with a decision of the district court should be raised in the ordinary appellate process and
is inappropriate on a motion for reargument”). It is improper for the moving party to
“ask the court to rethink what it ha[s] already thought through-rightly or wrongly.”
Oritani Sav. & Loan Ass’n v. Fid. & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990).
III.
DISCUSSION
The Court finds that the motion for reconsideration should be denied. The
withdrawal of Plaintiff’s OAL claim is not new evidence. Plaintiff withdrew his OAL
claim before filing his opposition to the motion to dismiss. Thus, this evidence was
available and Plaintiff simply failed to present it to the Court. Similarly, the Court did
not commit a clear error, as the withdrawal of Plaintiff’s OAL claim was never brought to
the Court’s attention. See P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F.
Supp. 2d 349, 353 (D.N.J. 2001) (reconsideration is appropriate “only when dispositive
factual matters or controlling decisions of law were brought to the court’s attention but
not considered”). Finally, the fact that Plaintiff withdrew his OAL claim does not yield a
different result. Once Plaintiff chose to pursue his worker’s compensation retaliation
claim administratively, he waived his right to seek relief in court. See Lally v.
Copygraphics, 173 N.J. Super. 162, 181-82 (1980), aff’d, 85 N.J. 668 (1981) (“[A]n
employee who claims to have been the victim of retaliatory discrimination, in violation of
N.J.S.A. 34:15-39.1 et seq., may elect to pursue either a judicial or administrative
remedy” but not both). A contrary ruling would encourage plaintiffs to file parallel
litigation and forum shop based on which proceeding was more likely to be favorable.
IV.
CONCLUSION
For the reasons stated above, Plaintiff’s motion for reconsideration is DENIED.
An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: August 20, 2013
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