VEER v. MAIBEC INCORPORATED

Filing 43

MEMORANDUM AND ORDER denying 28 Deft's Motion for Reconsideration. Signed by Judge Peter G. Sheridan on 4/12/2013. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_____________________________________
:
JAMES VANDER VEER and ILELE
:
Civil Action No. 11-3951 (PGS)
STERN, on behalf of themselves and
:
all others similarly situated,
:
:
MEMORANDUM AND ORDER
Plaintiffs,
:
:
v.
:
:
MAIBEC INCORPORATED,
:
:
Defendant.
:
_____________________________________:

SHERIDAN, U.S.D.J.
This matter comes before the Court on

a motion for reconsideration of the Court=s

November 5, 2012 Memorandum and Order denying in part and granting in part Defendant,
Maibec Incorporated, motion to dismiss Plaintiff=s first amended complaint (ECF No. 27).
Defendant Maibec argues that Athis Court correctly dismissed Counts One (New Jersey
Consumer Fraud Act), Six (Negligence), Seven (Strict Products Liability), Eight (Unjust
Enrichment), and Nine (Sections 349 and 350 of New York=s General Business Law)@ but Athere
was no basis to allow the remaining counts to stand.@

The remaining Counts Two, Three, Four,

and Five allege breaches of contract, express warranty, and the implied warranties of fitness for a
particular purpose and merchantability, respectively. Rather than repeating all of the facts, the
Court relies on the facts presented in its Memorandum and Order (ECF 27).
Defendant=s chief argument is that the Court improperly employed the Conley v. Gibson
standard rather than the Twombly/Iqbal standard in deciding the motion to dismiss. More

particularly, Defendant argues that the Court relied on, and based its decision solely upon the
conclusory allegations, and that Athe product warranty simply does not cover the alleged cupping
of natural wood shingles.@
Motions for reconsideration are governed by Fed. R. Civ. P. 59(e) and L. Civ. R. 7.1(I).
The Aextraordinary remedy@ of reconsideration is Ato be granted sparingly.@ A.K. Stamping Co.,
Inc., v. Instrument Specialties Co., Inc., 106 F. Supp. 2d 627, 662 (D.N.J. 2000) (quoting NL
Indus., Inc., v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)). The Rule
Adoes not contemplate a Court looking to matters which were not originally presented.@ Damiano
v. Sony Music Entertainment, Inc., 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Florham Park
Chevron, Inc., v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988)).
The Third Circuit has held that the Apurpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered evidence.@ Harsco Corp. v.
Zlotincki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986).
AReconsideration motions, however, may not be used to relitigate old matters, nor to raise
arguments or present evidence that could have been raised prior to the entry of judgment.@ NL
Indus., Inc., 935 F. Supp. at 516; See Wright, Miller & Kane, Fed. Practice and Procedure:
Civil 2d ' 2810.1. Such motions will only be granted where (1) an intervening change in the
law has occurred, (2) new evidence not previously available has emerged, or (3) the need to
correct a clear error of law or prevent a manifest injustice arises. See, North River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
In applying the reconsideration standard to the Court=s Memorandum and Order, it is clear
that the Court applied the Twombly/Iqbal standard (See Memorandum and Order, ECF No. 27).
The decision does not mention the Conley case which the Defendant infers that the Court had
applied. That assertion is incorrect, and the Twombly/Iqbal standard is mentioned a number of
times. Although the Court cited an outdated case (Semerenko v. Cendant Corp., 223 F.3d 165,

173 (3d Cir. 2000), that section of the memorandum principally refers to the Twombly/Iqbal
standard.
The Defendant argues that the Acupping@ of shingles is not covered by the warranty, but the
motion to dismiss analyzes the plausibility of the alleged claims, and the continued cupping or
buckling of shingle, as alleged, plausibly breaches a contract or warranty.
The notion that cupping is different from other defects is an issue that must be assessed
during discovery and with expert testimony.
Maibec is attempting to convert the standard to dismiss into a more rigid standard. Such
is not appropriate here where there are plausible claims seeking relief. As such, the motion for
reconsideration is denied.
ORDER
IT IS on this 12th day of April, 2013
ORDERED that the motion for reconsideration (ECF No. 28) is denied.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.