LEJON-TWIN EL v. MARINO et al

Filing 72

OPINION. Signed by Judge Kevin McNulty on 8/7/2017. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ERWIN LEJON-TWIN EL,
Civ. No. 16-2292 (KM) (MAH)

Plaintiff,

OPINION

v.
JOE MARINO, Director, Human
Resources, and
IMPAX LABORATORIES, f/k/a
CarePharma,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

The plaintiff has filed a complaint for damages against his employer. I
dismissed the original complaint without prejudice to a motion to amend. (ECF
nos. 50, 51) On April 28, 2017, I denied plaintiffs motion to file an amended
complaint and dismissed the action with prejudice. (ECP nos. 55, 56). The file
was closed.
Two weeks later, on May 11, 2017, the plaintiff moved to disqualify me
and reassign the case to another judge. (ECF no. 57) On May 23, 2017, he
made a second submission in further support of that application. (ECF no. 58)
The file was reopened for consideration of the motion. On June 7, 2017, I
denied plaintiffs motion to reassign the case to another judge. (ECF no. 59)
Again, the file was closed.
On July 5, 2017, plaintiff filed several motions supported by a single
affidavit (ECF no. 6 1-1): (a) a Motion Seeking Substantive Relief (ECF no. 60);
(b) a Motion for Stay of an Order Pending Appeal (ECF no. 61); (c) a Motion
Seeking Relief of an Order (ECF no. 62); and (d) a Motion for New Trial (ECF no.

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63).’ The defendants have filed a response (ECF no. 69), and the plaintiff has
filed a reply (ECF no. 70).
On July 10, 2017, the plaintiff filed a notice of appeal to the United
States Court of Appeals for the Third Circuit. (ECF no. 65; assigned USCA Case
No. 17-2942) The Court of Appeals entered an order staying the appeal pending
this Court’s decision on the motions filed on July 5, 2017. (ECF no. 68) See
Fed. R. App. P. 4(a)(4) (listing certain district court motions that delay the
running of the time to appeal).
For the following reasons, the motions (ECF nos. 60, 61, 62, 63) are
DENIED.
A.

Motion Seeking Substantive Relief

Plaintiff has filed a Motion Seeking Substantive Relief pursuant to Fed.
R. App. P. 27(a)(2)(B)(iii). (ECF no. 60) That Rule governs motions made to the
Court of Appeals, seeking relief from the Court of Appeals. The motion is not
properly before this federal district court. Accordingly, plaintiffs motion (ECF
no. 60) is DENIED without prejudice to renewal in the proper Court.2
B.

Motion for Stay of an Order Pending Appeal

On July 10, 2017, plaintiff filed a notice of appeal. In anticipation of that
filing, plaintiff filed a motion, pursuant to Fed. R. App. P. 8(a)(1), for stay of an
order pending appeal. (ECF no. 61) Under that Rule, prior to moving the Court
of Appeals for a stay’:
A party must ordinarily move first in the district court for the
following relief:

The plaintiff filed a fifth motion, to proceed infonnapauperis on appeal. (ECF
no. 64). I have already granted it. (ECF no. 67).
2
The relief sought seems to be an order “granting Plaintiff the fact amount owed
to Plaintiff by the defendants.” (ECF no. 60 at 2) Thus the motion may be a redundant
statement that plaintiff wishes to appeal my dismissal of the case. Construed liberally
as a motion to this Court for reconsideration of the order of dismissal, it is covered by
my discussion in section C and particularly in section D, infra.
2

(A) a stay of the judgment or order of a district court
pending appeal;
(B) approval of a supersedeas bond; or
(C) an order suspending, modifying, restoring, or granting
an injunction while an appeal is pending.
Id.

“[TJhe standard for obtaining a stay pending appeal is essentially the
same as that for obtaining a preliminary injunction.” Conestoga Wood
Specialities Corp. v. Secretary of US. Dept. of Health and Human Services, 2013
WL 1277419 at *1 (3d Cir. Feb. 8, 2013). Like most preliminary injunctions, a
stay pending appeal is governed by four equitable factors:
“(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and
(4) where the public interest lies.”
Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S.
770, 776 (1987) (line breaks added for clarity)). Accord Kos Pharm., Inc. v.
Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004).

Although all the factors are relevant, the first two are critical. A court may not
grant injunctive relief, “regardless of what the equities seem to require,” unless
plaintiffs carry theft burden of establishing both a likelihood of success and
irreparable harm. Adams, 204 F. 3d at 484; accord Honuorth v. Blinder, Robinson &
Co., 903 F.2d 186, 197 (3d Cir. 1990) (placing particular weight on the probability of
irreparable hat-rn and the likelihood of success on the merits, stating: “[Wie cannot
sustain a preliminary injunction ordered by the district court where either or both of
these prerequisites are absent.” (quoting In re Arthur Treacher’s Franchisee Litigation,
689 F.2d 1137, 1143 (3d Cir.1982)); Morton v. Beyer, 822 F.2d 364, 367 (3d Cir.1987);
FreL’cenet, S.A. v. Admiral iVine &LiquorCo., 731 F.2d 148, 151 (3d Cir.l984);
American Express, 669 F.3d at 366, 374. See also Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 21(2008) (holding it was error to water down the irreparable
harm requirement from “likelihood” to “possibility,” even where likelihood of success
3

Plaintiffs motion does not make any persuasive showing of likelihood of
success on the merits; at best it rehashes the arguments already rejected by
the Court, for the reasons expressed in prior opinions. (ECF nos. 50, 55)
Nor is there any showing of irreparable injury. This is an action in which
the plaintiff sought damages. By definition, the court’s denial of damages is an
injury that can be remedied by an award of damages. And an injury that can
be redressed by damages is the very essence of an injury that is not
irreparable, and cannot be the subject of equitable relief.4
Indeed, it is difficult to imagine what meaningful relief a stay could
afford. The order(s) appealed from dismissed a claim for damages and denied a
post-judgment motion for reassignment of the case to a different judge. Such
orders do not call upon anyone to do anything. It is unclear what, if anything,
needs to be stayed, even from the plaintiffs point of view. Plaintiff fails to

was strong); Talbed u. Corizon Medical, 608 F. App’x 86, 2015 WL 3544517 (3d Cir.
June 8, 2015) (summarily affirming denial of preliminary injunction based on lack of
irreparable harm).
This Court has often addressed the issue of when a preliminary injunction to
prevent immediate irreparable harm is justified and conversely, when other
remedies such as money damages are adequate to compensate a plaintiff for
past harm. The law in that respect is clear in this Circuit:
In order to demonstrate irreparable harm the plaintiff must
demonstrate potential harm which cannot be redressed by a legal or
an equitable remedy following a trial. The preliminary injunction
must be the only way of protecting the plaintiff from harm. See e.g.,
Weinbergeru. Romero—Barcelo, 456 U.S. 305 1102 S. Ct. 1798,72
L.Ed.2d 91] (1982); Continental Group, Inc. v. Amoco Chemicals Corp.,
614 F.2d 351, 356 and n. 9 (3d Cir. 1980).
Instant Air Freight Co. u. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989)
(emphasis added). In ECRI v. McGraw—Hill, Inc., 809 F.2d 223, 226 (3d Cir.
1987) (citations omitted) we stated:

Establishing a risk of irreparable harm is not enough. A plaintiff has
the burden of proving a “clear showing of immediate irreparable
injury.” The “requisite *92 feared injury or harm must be
irreparable—not merely serious or substantial,” and it “must be of a
peculiar nature, so that compensation in money cannot atone for it.”
Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 9 1—92 (3d Cir. 1992).

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specify what it is that he wishes to stay or why a stay is needed. There is, for
example, no judgment imposing liabilit on plaintiff from which he might seek
temporary protection. It is difficult to imagine any threat to the status quo
during the pendency of the appeal. Simply put, I see no purpose in granting
this motion, and plaintiff has not identified any.
Accordingly, the motion to stay an order pending appeal (ECF no. 61) is
DENIED.
Motion Seeking Relief of an Order

C.

Plaintiff has filed a Motion Seeking Relief of an Order pursuant to Fed. R.
Civ. P. 60(b)(1), (2), and (3). (ECF no. 62) In particular, plaintiff seeks “relief
from the Order entered by the United States District Court on June 7, 2017,”
denying his motion to disqualify me and reassign the case to another judge.
However, he also generally appears to seek relief from the dismissal of his
complaint. I will construe the motion liberally to encompass both. For the
following reasons, however, plaintiff’s Rule 60(b) motion must be denied.
Federal Rule of Civil Procedure 60(b) provides that “the court may relieve
a party.

.

.

from final judgment, order or proceeding” under certain

circumstances. The general purpose of Rule 60(b) is “to strike a proper balance
between the conflicting principles that litigation must be brought to an end and
that justice must be done.” Walsh v. Krantz, 423 F. App’x 177, 179 (3d Cir.
2011) (per curiam) (quoting Boughner v. Sec’y of Health, Ethic. & Welfare, 572
F.2d 976, 977 (3d Cir. 1978)). “Rule 60(b) is a provision for extraordinary relief
and may be raised only upon a showing of exceptional circumstances.” Mendez
v. Sullivan, 488 F. App’x 566, 568 (3d Cir. 2012) (per curiam) (citing Saw/ca v.
Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)).
Plaintiff argues that:
“The defendants have shown mistake in an employment
contract, bias, extrinsic fraud and misrepresentation toward
Plaintiff by failing to reimburse plaintiff a check cashing fee
imposed by defendants financial institution, retaining a live
D

payroll check, failure to fully update and correct the former
employee’s personal information, etc., non[ej of these issues
were examined by Judicial Officer, Hon. Kevin McNulty, albeit,
absent an expert opinion, constituting a mistake of law and are
grounds for relief from the Order entered by the United States
District Court on June 7, 2017
.

(Plaintiffs Affidavit, ECF no. 6 1-1,

¶ 5)

Plaintiff first cites Rule 60(b)(1) and (3), the provisions for relief from a
final judgment, or proceeding, based on “mistake, inadvertence, surprise, or
excusable neglect,” and “fraud, misrepresentation, or misconduct by an
opposing party.” These provisions, however, do not grant a second chance to
relitigate the substance of a dismissed action; rather, they create an
opportunity for relief based on extraordinary and extenuating circumstances.
For example, under Rule 60(b)(1), “courts have held that a party should not be
deprived of the opportunity to present the merits of the claim because of a
technical error or slight mistake by the party’s attorney.” 11 Wright, Miller &
Kane, Federal Practice and Procedure,

§ 2858 (3d ed.). Similarly, under Rule

60(b)(3), “the fraud must have prevented the moving party from fully and fairly
presenting his case

.

.

.

.

The motion will be denied if it is merely an attempt to

re-litigate the case or if the court otherwise concludes, as is most commonly
true, that fraud or misrepresentation or other misconduct has not been
established.” Id.

§ 2860.

Here, plaintiff quotes the language of Rule 60, but the substance of his
motion is just a restatement of his allegations against the defendants, which
have already been fully and fairly considered. The “misconduct” that he alleges
consists of the conduct alleged in his Complaint. The injuries to which he
refers all flow from the premise—rejected as a matter of law—that his employer
was required to maintain tax and payroll records under his new name. The
reference to the lack of an “expert opinion” is difficult to interpret, but
irrelevant; because the claims failed as a matter of law, there was no need for

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witnesses, expert or otherwise. The grounds asserted are plainly insufficient
under Rules 60(bfll) and (3).
Plaintiff also cites to Rule 60(b)(2) to support his motion. Rule 60(b)(2) is
grounds for relief from a final judgment based on “newly discovered evidence
that, with reasonable diligence, could not have been discovered in time to move
for a new trial under Rule

59(b)[.1” “Rule 60(b)(2) ‘requires that the new

evidence (1) be material and not merely cumulative, (2) could not have been
discovered before trial through the exercise of reasonable diligence and (3)
would probably have changed the outcome of the trial. Any party requesting
such relief ‘bears a heavy burden.”’ Floorgraphics Inc. v. News Am. Mktg. InStore Servs., Inc., 434 F. App’x 109, 111 (3d Cir. 2011) (internal quotation
marks and citation omitted).
First, with regard to the denial of the post-judgment motion to reassign
the case to another judge, plaintiffs affidavit does not include any additional
relevant evidence. As to that issue, then, Rule 60(b)(2) is clearly inapplicable.
Second, as for the dismissal of plaintiffs complaint for failure to state a
claim, the submission of additional evidence would be irrelevant. For purposes
of the Rule 12(b)(6) motion to dismiss, I accepted the facts alleged in the
complaint as true and drew all reasonable inferences in favor of the plaintiff.
Nevertheless, I found that plaintiff failed to state a legally cognizable claim.
Additional evidence supporting allegations that I already assumed to be true
would have no impact at all on that conclusion.
Additionally, plaintiff asserts that the defendants did not “oppose
[plaintiffs] motion for judicial disqualification and recusal.” (Plaintiffs Affidavit

¶ 6) That, however, is not grounds for relief under Rule 60.
Accordingly, plaintiffs Motion for Relief of an Order (ECF no. 62) is
DENIED.

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D.

Motion for a New Trial

Plaintiff also moves for a new trial pursuant to Fed. R. Civ. P. 59(b). (ECF
no. 63) Because there was no trial in this case, I will liberally construe
plaintiffs motion as a motion for reconsideration pursuant to Rule 59(e) and
Local Civil Rule 7.1. In any event, plaintiff appears to believe that, by filing his
motion within 28 days of this Court’s June 7, 2017 Order, he is entitled to a
new trial or reconsideration. That is not so; there is a threshold showing
required, and plaintiff has not met it.
Pursuant to Local Civil Rule 7.1(i), a party moving for reconsideration
must “seq j forth concisely the matter or controlling decisions which the party
believes the Judge or Magistrate Judge has overlooked[.]” L. Civ. R. 7.1(i).
Motions for reconsideration “are not to be used as an opportunity to relitigate
the case; rather, they may be used only to correct manifest errors of law or fact
or to present newly discovered evidence.” Blystone v. Horn, 664 F.3d 397, 415
(3d Cir. 2011) (citing Howard Hess Dental Labs., Inc. v. Dentsply Int’l Inc., 602
F.3d 237, 251 (3d Cir. 2010)); see also N. River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
“Accordingly, a judgment may be altered or amended [only] if the party
seeking reconsideration shows 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 granted the motion for summary
judgment; or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.’” In re Certain Consol. Roflumilast Cases, No.
CV15O3375FLWDEA, 2017 WL 2399571, at *2 (D.N.J. June 2, 2017) (quoting
Blystone, 664 F,3d at 415).
Plaintiff cites no intervening change in the controlling law, nor does he
cite any new evidence. He does claim the need to correct a “mistake of law”:
“The defendants have shown mistake in an employment
contract, bias, extrinsic fraud and misrepresentation toward
Plaintiff by failing to reimburse plaintiff a check cashing fee
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imposed by defendants financial institution, retaining a live
payroll check, failure to fully update and correct the former
employee’s personal information, etc., non[e} of these issues
were examined by Judicial Officer, Hon. Kevin McNulty, albeit,
absent an expert opinion, constituting a mistake of law and are
grounds for relief from the Order entered by the United States
District Court on June 7, 2017
.

(Plaintiffs Affidavit, ECF no. 6 1-1,

¶ 5)

Plaintiff is mistaken. I did consider all of the allegations in his original
complaint and in his proposed amended complaint. I found them deficient as a
matter of law. (ECF nos. 50, 55) Plaintiff has failed to demonstrate a clear error
of law or a need to prevent manifest injustice.
“[A] motion for reconsideration should not provide the parties with an
opportunity for a second bite at the apple.” Tischio v. Bontex, Inc., 16 F. Supp.
2d 511, 533 (D.N.J. 1998) (citation omitted). For a plaintiff who simply
disagrees with this Court’s decision, the appellate process, not a Rule 59(e)
motion, is the appropriate path.
Accordingly, plaintiffs Motion for a New Trial (ECF no. 63) is DENIED.
CONCLUSION

For the foregoing reasons, the plaintiffs Motion Seeking Substantive
Relief (ECF no. 60) is DENIED without prejudice to refiling in the Court of
Appeals; the plaintiffs Motion for Stay of an Order Pending Appeal (ECF no. 61)
is DENIED; the plaintiffs Motion Seeking Relief of an Order (ECF no. 62) is
DENIED; and the plaintiffs Motion for New Trial (ECF no. 63) is DENIED. A
separate Order accompanies this opinion.
August 7, 2017

KEVIN MCNULTY
United States District Judge

9

imposed by defendants financial institution, retaining a live
payroll check, failure to fully update and correct the former
employee’s personal information, etc., non[e] of these issues
were examined by Judicial Officer, Hon. Kevin McNulty, albeit,
absent an expert opinion, constituting a mistake of law and are
grounds for relief from the Order entered by the United States
District Court on June 7, 2017
.

(Plaintiffs Affidavit, ECF no. 6 1-1,

¶ 5)

Plaintiff is mistaken. I did consider all of the allegations in his original
complaint and in his proposed amended complaint. I found them deficient as a
matter of law. (ECF nos. 50, 55) Plaintiff has failed to demonstrate a clear error
of law or a need to prevent manifest injustice.
“[A] motion for reconsideration should not provide the parties with an
opportunity for a second bite at the apple.” Tischio v. Bontex, Inc., 16 F. Supp.
2d 511, 533 (D.N.J. 1998) (citation omitted). For a plaintiff who simply
disagrees with this Court’s decision, the appellate process, not a Rule 59(e)
motion, is the appropriate path.
Accordingly, plaintiffs Motion for a New Trial (ECF no. 63) is DENIED.
CONCLUSION

For the foregoing reasons, the plaintiffs Motion Seeking Substantive
Relief (ECF no. 60) is DENIED without prejudice to refiling in the Court of
Appeals; the plaintiffs Motion for Stay of an Order Pending Appeal (ECF no. 61)
is DENIED; the plaintiffs Motion Seeking Relief of an Order (ECF no. 62) is
DENIED; and the plaintiffs Motion for New Trial (ECF no. 63) is DENIED. A
separate Order accompanies this opinion.

August 7, 2017

,fr’

S

KLVIN MCNULTY
United States District Judge

9