EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. FAPS, INC.
MEMORANDUM OPINION and ORDER that Defendant's Motion for reconsideration [Dkt. No. 96 ] is DENIED; that Plaintiff's Motion for reconsideration [Dkt. No. 97 ] is DENIED. Signed by Magistrate Judge Douglas E. Arpert on 3/9/2015. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EQUAL EMPLOYMENT OPPORTUNITY
Civil Action No. 10-3095 (JAP)(DEA)
ARPERT, Magistrate Judge
This matter comes before the Court on two Motions: (1) a Motion for reconsideration of
the Court’s September 10, 2013 Order by Defendant [Dkt. No. 96]; and (2) a Motion for
reconsideration of the Court’s September 10, 2013 Order by Plaintiff [Dkt. No. 97]. Both
Motions are opposed [Dkt. Nos. 104, 105]. For the reasons set forth below, Defendant’s Motion
for reconsideration [Dkt. No. 96] is DENIED and Plaintiff’s Motion for reconsideration [Dkt.
No. 97] is DENIED.
The parties are intimately familiar with the facts of this case. Accordingly, the Court will
not recite them at length. The EEOC brought this action until Title VII of the Civil Rights Act of
1964, Title I of the Americans with Disabilities Act of 1990, and Title I of the Civil Rights Act
of 1991 to “correct unlawful employment practices on the basis of race and disability, and to
provide relief to a class of potential and actual applicants who were adversely affected by such
practices.” Compl. at 1.
As relevant to the present Motion, on July 3, 2013, Plaintiff sent a letter to the Court
claiming that Defendant’s counsel had hired a private investigator to conduct ex parte interviews
of the 28 claimants and potential claimants listed in the EEOC’s Second Amended Rule 26
disclosures. Plaintiff’s letter requested that the Court intervene to prevent Defendant’s
investigator from conducting any further interviews. Defendant submitted a response to
Plaintiff’s letter claiming that no attorney-client privilege existed between the claimants and the
EEOC and that the private investigator was instructed to terminate the interviews and cease
contact with the claimants if the claimants informed the investigator that they were represented
The Court held a hearing on July 23, 2013, after which Plaintiff and Defendant submitted
conflicting certifications regarding the substance of the communications between the claimants
and the private investigator. Plaintiff submitted certifications of five claimants who were
interviewed by the private investigator. Two of the five claimants stated that the private
investigator had affirmatively misled them to believe that he worked for the EEOC and the
remaining three claimants stated that they assumed private investigator worked for the EEOC
even though the investigator had informed the claimants that he was working on Defendant’s
behalf. The certifications stated that during the private investigator’s interviews with four of the
five claimants the investigator did not ask whether they were represented by counsel, and one
claimant stated that even after informing the investigator he was represented by counsel the
investigator continued the interview. Defendant submitted certifications which disputed some or
all of the allegations stated by the claimants in their certifications.
During the July 12, 2013 hearing, counsel for the EEOC admitted that its expert, Dr.
Palmer Morrel-Samules, mailed 851 written questionnaires and attempted to contact, by
telephone, additional FAPS applicants. Four FAPS employees received the questionnaires and
several responses to the questionnaire were received after the fact discovery deadline of June 28,
On September 10, 2013, the Court issued a Memorandum Opinion and Order, which is
the subject of both Defendant’s and Plaintiff’s present Motions for reconsideration. See Dkt. No.
91. The Court’s Order stated that based on the certifications of the claimants, it appeared that
Defendant’s private investigator “engaged in some level of wrongdoing with respect to [the]
communications with potential claimants.” Id. at 9. As a result of Defendant’s misconduct, the
Court ordered Defendant to “disclose all materials, documents, notes and communications
between defense counsel and or defense counsel’s agents and the EEOC” and prohibited
Defendant from using any information gleaned from the interviews or engaging in additional ex
parte communications with EEOC claimants and potential claimants. Id. at p. 10.
In addition, the Court addressed the EEOC’s admission during the July 12, 2013 hearing
that its expert had mailed written questionnaires and attempted to contact additional FAPS
applicants, and that several responses to the questionnaire were received after the fact discovery
deadline. Taking the EEOC’s admission into account, the Court found that both parties violated
the existing Case Management Order by continuing to engage in discovery after the expiration of
the fact discovery deadline. Accordingly, the Court directed both parties to cease all fact
discovery and prohibited the parties from engaging in further discovery.
Defendant moves for reconsideration of the Court’s September 10, 2013 Order based on
the assertion that the Court “overlooked” that: (1) there was no attorney/client relationship
proven and therefore there was no prior inquiry into the status of the claimants’ representation
required; (2) reasonable inquiry was in fact made but opposing counsel refused to respond; (3)
the declarations in the record established that no misconduct occurred; and (4) since there was no
attorney/client relationship, the Court overlooked precedent holding that no sanctions should
result from a violation of RPC 4.2. See Dkt. No. 96 at p. 2-3. Plaintiff’s Motion for
reconsideration claims that the questionnaire sent by Plaintiff’s expert constituted expert
discovery and therefore did not violate the fact discovery deadline set forth the CMO. See Dkt.
Motions for reconsideration are not expressly recognized in the Federal Rules of Civil
Procedure. United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
Generally, a motion for reconsideration is treated as a motion to alter or amend judgment under
Federal Rule of Civil Procedure 59(e), or as a motion for relief from judgment under Rule 60(b).
Id. In the District of New Jersey, Local Civil Rule 7.1(i) governs motions for reconsideration.
Agostino v. Quest Diagnostics, Inc., Civ. No. 04-4362, 2010 WL 5392688, *5 (D.N.J. Dec. 22,
2010) (citing Bryan v. Shah, 351 F. Supp. 2d 295, 297 (D.N.J. 2005)).
Local Civil Rule 7.1(i) permits a party to seek reconsideration by the Court of a matter
which the party believes the Judge “overlooked” when it ruled on the motion. A motion for
reconsideration under Rule 7.1(i) “shall be served and filed within 14 days after the entry of the
order or judgment on the original motion by the Judge” and submitted with a “brief setting forth
concisely the matter or controlling decisions which the party believes the Judge . . . has
overlooked.” L. Civ. R. 7.1(i).
The standard for reargument is high and reconsideration is to be granted only sparingly.
United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994). A judgment may be altered or
amended under Rule 7.1(i) if the movant 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 [issued its order]; or (3) the need to correct a clear error of law or fact to
prevent manifest injustice. Max’s Seafood Café v. Quinteros, 176 F.3d 669, 667 (3d Cir. 1999)
(citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The
Court will grant a motion for reconsideration only if its prior decision overlooked a factual or
legal issue that may alter the disposition of the matter. Compaction Sys. Corp., 88 F. Supp. 2d at
A party seeking to introduce new evidence on reconsideration bears the burden of first
demonstrating that the evidence was unavailable or unknown at the time of the original hearing.
See Levinson v. Regal Ware, Inc., Civ. No. 89-1298, 1989 U.S. Dist. LEXIS 18373, at *3 (D.N.J.
Dec. 1, 1989). “Reconsideration motions . . . may not be used to re-litigate old matters, or to
raise arguments or present evidence that could have been raised prior to the entry of the
judgment.” NL Industries, Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J.
1996). In other words, “[a] motion for reconsideration should not provide the parties with an
opportunity for a second bite at the apple.” Tishcio v. Bontex, Inc., 16 F. Supp. 2d 511, 533
(D.N.J. 1998) (citation omitted). Thus, a difference of opinion with the court’s decision should
be dealt with through the normal appellate process. Florham Park Chevron, Inc. v. Chevron
U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1998).
A. Defendant’s Motion for Reconsideration [Dkt. No. 96]
Defendant claims that because no attorney-client relationship existed between the
claimants and the EEOC, no inquiry into the claimants’ representation was required prior to
conducting the interviews. In the initial analysis of this issue when it was first raised by the
parties, the Court acknowledged the differing conclusions reached by courts with respect to the
parameters of the attorney-client relationship between the EEOC and claimants or potential
claimants and noted that while “several jurisdictions allow ex parte communications with EEOC
claimants prior to the establishment of the attorney-client relationship, ex parte communications
should be undertaken with caution.” Dkt. No. 91 at 5 (citing EEOC v. Dana Corp., 202 F. Supp.
2d at 830). Accordingly, the Court found that although the presumption against the existence of
an attorney-client relationship was stronger than the presumption in favor of an attorney-client
relationship, in this case, defense counsel did not take sufficient precautions to determine
whether an attorney-client relationship existed prior to engaging in ex parte communications.
While it is clear that Defendant does not agree with the Court’s decision, Defendant’s
Motion falls short of the high bar for reconsideration. Although Defendant claims that the Court
overlooked key issues and facts, including the certifications Defendant submitted, Defendant has
failed to identify any controlling law or fact not considered by the Court in reaching its decision
on this issue. Accordingly, the Court finds that Defendant is asking the Court to “rethink what is
already thought through—rightly or wrongly,” which does not meet the requirements for
reconsideration under Local Civil Rule 7.1(i). Fishbein Fam. P’ship v. PPG Indus., No.
Civ.A.93—653, 1994 U.S. Dist. LEXIS 18812, at *3 (D.N.J. Dec. 28, 1994). Therefore, because
Defendant has failed to show an intervening change in the controlling law, the availability of
new evidence or the need to correct a clear error of law or fact to prevent manifest injustice,
Defendant’s Motion for reconsideration is DENIED.
B. Plaintiff’s Motion for Reconsideration [Dkt. No. 97]
Plaintiff requests the Court to reconsider its finding that the survey prepared and
distributed by Dr. Morrel-Samuels was fact discovery conducted after the expiration of the
deadline set forth in the Case Management Order. Plaintiff contends that the survey and the
responses to the survey were always considered by the EEOC as expert discovery “if it
constituted discovery at all.” Dkt. No. 97 at 2.
In support of reconsideration, Plaintiff cites several cases which purportedly stand for the
proposition that “where, as here, a party retains an expert to develop, conduct, and analyze a
survey for potential use in an expert report, such endeavors and material constitute expert
discovery.” Id. at 4. The Court has reviewed the authority cited by Plaintiff and finds nothing to
suggest that “dispositive factual matters or controlling decisions of law were brought to the
court's attention but not considered.” Brackett v. Ashcroft, 2003 WL 22303078, at *2 (D.N.J.
Oct. 7, 2003) (internal citations and quotations omitted).
In addition to Plaintiff’s failure to demonstrate any intervening changes of law or new
evidence which would cause the Court to reconsider its decision, Plaintiff has also failed to show
any clear error of law which would result in a manifest injustice. Plaintiff’s Motion appears to
arise from Plaintiff’s desire to “avoid any future argument that any part of the survey results
should be struck from the record as untimely discovery.” Dkt. No. 97 at 7. However, Plaintiff’s
concern regarding the admissibility of the survey is premature and falls short of demonstrating
any manifest injustice resulting from the Court’s decision. Accordingly, because the Court finds
that Plaintiff has failed to set forth any matter or controlling decision which the Court has
overlooked, Plaintiff’s Motion for reconsideration is DENIED.
CONCLUSION AND ORDER
The Court having considered the papers submitted pursuant to Federal Rule of Civil
Procedure 78, and for the reasons set forth above;
IT IS on this 9th day of March, 2015,
ORDERED that Defendant’s Motion for reconsideration [Dkt. No. 96] is DENIED; and
it is further
ORDERED that Plaintiff’s Motion for reconsideration [Dkt. No. 97] is DENIED.
/s/ Douglas E. Arpert
DOUGLAS E. ARPERT
United States Magistrate Judge
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