LINDENBERG v. ARRAYIT CORPORATION et al

Filing 80

OPINION and ORDER denying #74 Motion for Reconsideration ; denying #78 Motion for Reconsideration. Signed by Judge Stanley R. Chesler on 4/7/2016. (jr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TAMARIN LINDENBERG,
Plaintiff,
v.
ARRAYIT CORPORATION, ARRAYIT
DIAGNOSTICS, INC., AVANT
DIAGNOSTICS, INC., JOHN HOWELL,
STEVEN SCOTT, and
GREGG LINN,
Defendants.

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Civil Action No. 14-833 (SRC)

OPINION AND ORDER

CHESLER, District Judge
This matter comes before the Court upon the motion for reconsideration of this Court’s
February 18, 2016, Opinion and Order filed by Defendants Arrayit Diagnostics, Inc. (“AD”),
Avant Diagnostics, Inc., 1 Steven Scott, and Gregg Linn (together, “Defendants”), pursuant to
Local Civil Rule 7.1(i) [Docket No. 74].

Plaintiff Tamarin Lindenberg (“Plaintiff” or

“Lindenberg”) has opposed the motion and cross-moved for reconsideration [Docket No. 78]. The
Court has considered the papers filed by the parties. For the reasons that follow, the court will
deny both Defendants’ motion and Plaintiff’s cross-motion.

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Arrayit Diagnostics, Inc. changed its name to Avant Diagnostics, Inc. At all times relevant to this suit, the corporate
entity operated under the name of Arrayit Diagnostics and will thus be referred to as Arrayit Diagnostics in this
Opinion.
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A court may grant a motion for reconsideration if the moving party shows one of the
following: “(1) an intervening change in the controlling law; (2) the availability of new evidence
that was not available when the court [issued its order]; or (3) the need to correct a clear error of
law or fact or to prevent manifest injustice.” See Max’s Seafood Café v. Quinteros, 176 F.3d 669,
677 (3d Cir. 1999); L. Civ. R. 7.1(i). Reconsideration is “an extraordinary remedy,” and is to be
granted very “sparingly.” See NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513,
516 (D. N.J. 1996) (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D. N.J. 1986)). The parties
have failed to demonstrate that reconsideration is warranted.
Defendants ask the Court to revise two sections of the Opinion that Defendants claim (1)
found a nexus between Plaintiff’s termination and the whistleblowing conduct protected by CEPA
and (2) found that Plaintiff has shown that she complained about illegal conduct for the purposes
of CEPA. As a threshold matter, Defendants appear to misunderstand the procedural posture of
the case. On a motion for summary judgment, the Court did not examine whether Lindenberg had
satisfied an element of her claim, but whether she has “provided sufficient evidence to allow a jury
to find in [her] favor at trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).
The Court concluded that she has.
The Court first found that Plaintiff’s testimony stating that she complained about alleged
S-1 abnormalities to Rene Schena, the CEO of AD’s parent company Arrayit Corporation, coupled
with Plaintiff’s testimony that Schena expressed her intent to immediately relay that information
to AD’s CEO Steven Scott, can allow a jury to find that Plaintiff performed a whistleblowing
activity for the purposes of CEPA. Evidence of a “declarant’s intent or plan may be used to show
that the declarant acted in accord with that plan.” United States v. Donley, 878 F.2d 735, 738 (3d
Cir. 1989) (citing Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892)). In other words, a jury can
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conclude that Schena told Scott about Lindenberg’s objections to the S-1 based on Schena’s
allegedly articulated intent to do so. Next, the Court concluded that a jury can infer a retaliatory
motive for Lindenberg’s termination from the two-day lapse between Lindenberg’s meeting with
Schena and the adverse employment action. Defendants have not illustrated any errors for
reconsideration.
Finally, Defendants take issue with the Court’s holding regarding the reasonableness of
Plaintiff’s belief that Defendants’ conduct violated a law, rule, or regulation. The Court held that
Plaintiff has presented sufficient evidence to allow a jury to conclude that Lindenberg objected to
conduct that she “reasonably believe[d]” was unlawful. Gerard v. Camden County Health Servs.
Ctr., 792 A.2d 494, 498 (N.J. Sup. Ct. App. Div. 2002) (quoting Mehlman v. Mobil Oil Corp., 707
A.2d 1000, 1016 (N.J. 1998)). Plaintiff does not need to introduce additional evidence to prove
that the alleged misrepresentations were material because the existing evidence is sufficient for a
jury to be able to determine that Lindenberg actually believed that a violation had occurred and
that her belief was objectively reasonable. See Dzwonar v. McDevitt, 828 A.2d 893, 902 (N.J.
2003). Defendants have shown no basis to reconsider this conclusion. Accordingly, Defendants’
motion for reconsideration will be denied.
Plaintiff has filed a cross-motion for reconsideration.

The Court will not consider

Plaintiff’s motion because it was not timely filed. Local Rule 7.1(i) requires a party to file a motion
for reconsideration within 14 days after the entry of the order or judgment. Plaintiff filed her
motion one month after the Opinion and Order was issued. It is well-settled that untimeliness
alone constitutes sufficient grounds to deny a motion for reconsideration. XL Specialty Ins. Co. v.
Westmoreland Coal Co., No. 06-1234, 2006 WL 2241517, at *2 (D. N.J. Aug. 4, 2006); T.H. ex
rel. A.H. v. Clinton Twp. Bd. of Educ., No. 05-3709, 2006 WL 1722600, at *2 (D. N.J. June 19,
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2006); Morris v. Siemens Components, Inc., 938 F.Supp. 277, 278 (D. N.J. 1996). Although
Plaintiff received an extension to respond to Defendants’ motion, she did not ask for permission
to file a cross-motion. In any event, Plaintiff’s cross-motion fails to meet the high threshold
required for a motion for reconsideration. The Court will also not accept Plaintiff’s cross-motion
for reconsideration as a motion to amend her Complaint to include a claim for indemnification.
For the reasons stated above,
IT IS on this 7th day of April 2016,
ORDERED that Defendants’ motion for reconsideration [Docket No. 74] will be, and
hereby is, DENIED; and it is further
ORDERED that Plaintiff’s cross-motion for reconsideration [Docket No. 78] will be, and
hereby is, DENIED.

s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge

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