GROSSBERGER v. RUANE et al

Filing 23

ORDER denying 17 Plaintiff's Motion to Amend the Complaint. Signed by Judge Anne E. Thompson on 3/27/2012. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Bezalel GROSSBERGER a/k/a Ben Gross,
Plaintiff,
Civ. No. 11-3728
v.
MEMORANDUM ORDER
Patrick RUANE and Marion RUANE,
Defendants.
THOMPSON, U.S.D.J.
This matter has come before the Court on Plaintiff Bezalel Grossberger’s Motion to
Amend [docket #s 17, 20]. Defendants Patrick Ruane and Marion Ruane oppose this motion
[22]. On December 14, 2011, the Court dismissed Plaintiff’s Complaint, which made claims
under several federal civil rights statutes, because these claims are barred by the statute of
limitations and because he had not identified a protected class of which he is a member. (See
Op. of Dec. 14, 2011, at 4–6) [15].1 Reading Plaintiff’s pro se arguments as broadly as possible,
there are two issues before this Court. See Erickson v. Pardus, 551 U.S. 89 (2007). First,
Plaintiff asks this Court to reconsider its earlier determination that his civil-rights claims are
barred by the statute of limitations. Second, Plaintiff attempts to assert a claim of fraudulent
conveyance against Defendants. Each of these issues will be discussed in turn. For the
following reasons, Plaintiff’s motion will be denied.
I.

RECONSIDERATION

A motion for reconsideration is properly brought pursuant to Fed. R. Civ. P. 59(e) and L.
Civ. R. 7.1. There are three bases on which such a motion may be brought: (1) an intervening
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This dispute arises out of Defendants’ refusal to sell a certain piece of real property to the Plaintiff. For the
purpose of deciding this motion, the Court assumes the parties familiarity with the underlying facts of this case.

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change in controlling law; (2) evidence not previously available; or (3) to correct a clear error of
law or prevent manifest injustice. North River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218
(3d Cir. 1995). Reconsideration is an extraordinary remedy that is to be granted “very
sparingly.” Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 215 F. Supp. 2d 482, 507 (D.N.J.
2002). A motion for reconsideration is not a vehicle for raising new matters or arguments that
could have been raised before the original decision was made, Bowers v. NCAA, 130 F. Supp. 2d
610, 613 (D.N.J. 2001), nor is it an opportunity to ask a court to rethink what it has already
thought through. Oritani S & L v. Fidelity & Deposit, 744 F. Supp. 1311, 1314 (D.N.J. 1990).
Reconsideration based on a clear error of law may be granted only if there is a dispositive factual
or legal matter that was presented but not considered which would have reasonably resulted in a
different conclusion by the court. Champion Labs., Inc. v. Metex Corp., 677 F. Supp. 2d 748,
750 (D.N.J. 2010).
Plaintiff, in supplemental briefing to this pending motion [20], attempts to draw the
Court’s attention to the alleged chronology of events, which, according to Plaintiff, prove that
the discrimination in this case is continuous. (See Pl.’s Supp. Br., at 11–12). However, there is
no new information contained in this chronology that the Court was not aware of at the time it
decided Defendants’ original motion to dismiss other than a removal of a “for sale” sign by
Defendants. Moreover, Plaintiff has again failed to show how any of the Defendants’ acts are
discriminatory. Although some of Defendants’ acts may have been detrimental to Plaintiff in
some manner, this does not mean that Defendants had an underlying discriminatory animus for
taking these actions. A court must determine whether the facts alleged in a complaint “are
sufficient to show that plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Ashcroft v.
Iqbal, 129 S. Ct. at 1949). This requires more than a mere allegation of an entitlement to relief.
Id. “A complaint has to ‘show’ such an entitlement with its facts.” Id. A claim is only plausible
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if the facts pleaded allow a court reasonably to infer that the defendant is liable for the
misconduct alleged. Id. at 210 (quoting Iqbal, 129 S. Ct. at 1948). Mere conjecture on the part
of a plaintiff or the “mere possibility of misconduct” by a defendant fails to show that the
plaintiff is entitled to relief. Id. at 211 (quoting Iqbal, 129 S. Ct. at 194). Because Plaintiff has
presented no new information to the Court or otherwise shown why Defendants’ actions can be
attributed to a discriminatory animus, Plaintiff’s request for the Court to reconsider its previous
order must be denied.
II.

MOTION TO AMEND

It has been the accepted and encouraged policy that courts should liberally grant leave to
amend pleadings when justice so requires. See Fed. R. Civ. P. 15(a); see also Foman v. Davis,
371 U.S. 178, 182 (1962); Dole v. Arco Chem. Co., 921 F.2d 484 (3d Cir. 1990). The
determination of a motion to amend falls within the discretion of the trial court and is guided by
Fed. R. Civ. P. 15(a). Foman, 371 U.S. at 182 (1962).
When the movant’s request to amend is “a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits.” Id. Therefore, before dismissing a
complaint under Rule 12(b)(6), “a district court must permit a curative amendment, unless an
amendment would be inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236
(3d Cir. 2008) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). An
amended complaint is “futile” if it would still fail to state a claim for relief under the Rule
12(b)(6) standard. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.
1997).

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In this case Plaintiff does not have standing2 to assert a claim for fraudulent transfer
because he has not validly pled that he is a “creditor” within the meaning of the Uniform
Fraudulent Transfer Act (“the Act”), N.J.S.A. § 25:2-20, et seq. Under the Act, only a present or
future creditor can set aside a transfer from a debtor. See N.J.S.A. § 25:2-25 (“A transfer made
or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim
arose before or after the transfer was made or the obligation was incurred, if the debtor made the
transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor
of the debtor.” (emphasis added)). Here, Plaintiff is not a creditor because, through his own
admission, he no longer has a lien on the property at the center of this dispute. (Pl.’s Supp. Br.,
at 4, ¶ 14). Furthermore, he has no viable legal claim as discussed both above and in this Court’s
previous order dismissing Plaintiff’s Complaint. Therefore, permitting an amended complaint in
this case would be futile.
III.

CONCLUSION

For the foregoing reasons, Plaintiff’s arguments are unavailing and the pending motion
must be denied.
Therefore, IT IS on this 27th day of March, 2012,
ORDERED that Plaintiff’s Motion to Amend [17] is DENIED.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
2

Standing is a jurisdictional pre-requisite to filing suit in federal court, and a plaintiff must show standing under
each cause of action. See Allen v. Wright, 468 U.S. 737, 752 (1984); see also Lewis v. Casey, 518 U.S. 343, 358 n.6
(1996) (“Standing is not dispensed in gross.”). This Court has an independent duty to determine its own subject
matter jurisdiction when it is “fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1945 (2009) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)); see also Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir.
2003) (citations omitted). Therefore, consideration of whether Plaintiff has standing to assert a claim for fraudulent
conveyance is appropriate in this case.

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