EBERT et al v. TOWNSHIP OF HAMILTON et al

Filing 137

OPINION filed. Signed by Judge Anne E. Thompson on 02/27/2020. (jdb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LAWRENCE B. EBERT and REBECCA A.
VARES-EBERT,
Civ. No. 15-7331
Plaintiffs,
OPINION
v.
TOWNSHIP OF HAMILTON et al.,
Defendants.
THOMPSON, U.S.D.J.
INTRODUCTION
This matter comes before the Court on a Motion for Leave to File an Interlocutory
Appeal and Leave to File an Amended Complaint by Plaintiffs Lawrence Ebert and Rebecca
Vares-Ebert (collectively, “Plaintiffs”). (ECF No. 134.) 1 Defendant Township of Hamilton
(“Defendant”) opposes. (ECF No. 135.) The Court has decided the Motion after considering the
parties’ written submissions without oral argument pursuant to Local Civil Rule 78.1(b). For the
following reasons, Plaintiffs’ Motion is denied.
BACKGROUND
The Court assumes the parties’ familiarity with the facts of this case and only recites facts
relevant to this Opinion. Discovery closed in May 2018, and the Court ruled on Defendant’s
Motion for Summary Judgment on August 9, 2018. (ECF No. 87). On July 12, 2019, Defendant
filed a Motion in Limine seeking to exclude any evidence or testimony relating to the value of
Plaintiffs’ lost property. (ECF No. 106.) Plaintiffs had sought to introduce replacement costs of

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Although Plaintiffs filed this as a Letter Request, the Court will construe it as a Motion.
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the alleged lost items based in part on retail prices that Plaintiff Lawrence Ebert believes he saw
at either Home Depot or Lowes. 2 (Pl.’s Dep. 99:23–100:1, Ex. 3, ECF No. 106-1.) In his
deposition, Plaintiff Lawrence Ebert asserted that he could independently establish the retail
prices he sought to introduce (id. at 100:7–12; 106:1–6) but failed to do so. 3 Plaintiffs opposed.
(ECF No. 111.) On September 26, 2019, the Court held a conference on the Motion in Limine,
and on October 15, 2019, the Court granted in part and denied in part, ordering that “Plaintiffs
may testify as to the purchase price of their possessions but may not use current retail prices as
evidence” (“October 15 Order”). (ECF No. 125.) Defendant then requested leave to file a motion
to dismiss, arguing that Plaintiffs could not prove damages without the retail prices. (ECF No.
127.) The Court denied this request (ECF No. 129) and scheduled trial for January 28, 2020.
On November 6, 2019 Plaintiff Lawrence Ebert filed a Declaration alleging that
Defendant had sent him notice of an outstanding amount owed to Defendant, which Plaintiff
Lawrence Ebert described as an act of “harassment and/or intimidation.” (ECF No. 132).
Plaintiff Lawrence Ebert also filed a Declaration on November 18, 2019, asking to reschedule
the trial date and stating that he had filed a motion on October 18, 2019. 4 (ECF No. 133.)
However, the Court did not receive any motion on or around October 18, 2019. The Court
rescheduled trial for March 31, 2020.

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Plaintiff Lawrence Ebert could not recall in which store he saw the retail prices. (Pl.’s Dep.
99:23–100:1; 105:22–25.) Plaintiff says he took photographs of the retail prices but no longer
has the photographs or any written documentation of these prices. (Id. at 100:2–12; 106:1–6.)
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Additionally, Plaintiff Lawrence Ebert concedes that he did not know the make, model, or
materials of many of the lost items, did not know how long ago they were purchased, and had
kept several of the items uncovered in their backyard for years. (Id. at 99:2–22; 103:2–5;
104:18–105:21; 106:18–108:5.)
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Plaintiffs seemingly intended to file a motion for clarification on the October 15 Order. (See
Mot. at 2.)
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On December 6, 2019, Plaintiffs filed the present Motion for Leave to File an
Interlocutory Appeal and Leave to File an Amended Complaint. (ECF No. 124.) The Motion
seeks interlocutory appeal of the Court’s October 15 Order. (Mot. at 1–2, ECF No. 124.) The
Motion also seeks the Court’s leave to file an amended complaint to include events from 2018
and 2019, which appear to relate to the contents of the November 6, 2019 Declaration. (Id. at 2.) 5
Defendant opposed (ECF No. 135), and Plaintiffs filed a Reply (ECF No. 136). Plaintiffs’
Motion is now before the Court.
LEGAL STANDARD
I.

Interlocutory Appeal
Under 28 U.S.C. § 1292(b), interlocutory review is only appropriate if (1)

the appeal involves a “controlling question of law,” (2) there is a “substantial ground for
difference of opinion” about that question of law; and (3) where immediate appeal may
materially advance the ultimate termination of the litigation. Simon v. United States, 341 F.3d
193, 199 (3d Cir. 2003). To succeed, the petitioner bears the burden of demonstrating all three
criteria. Levine v. United Healthcare Corp., 285 F. Supp. 2d 552, 556 (D.N.J. 2003). Even where
all three § 1292(b) requirements are met, the decision to grant certification remains wholly
within the district court’s discretion. Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976).
Certification for interlocutory review should be used sparingly because only “exceptional
circumstances justify a departure from the basic policy of postponing appellate review until after
the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (internal
quotations omitted).

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Plaintiffs did not attach a copy of the proposed amended pleading, as required pursuant to
Local Civil Rule 15.1(a).
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II.

Leave to Supplement or Amend
A party may amend its pleading with the opposing party’s written consent or the Court’s

leave, and the Court should freely grant leave to amend “when justice so requires.” Fed. R. Civ.
P. 15(a)(2). The district court may exercise its discretion to deny leave to amend a complaint, but
it must provide a reason for doing so, such as “undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); Grayson v. Mayview State Hosp., 293
F.3d 103, 108 (3d Cir. 2002).
Plaintiffs seek to amend their complaint to include events from 2018 and 2019, which
occurred after they filed the initial Complaint. Therefore, the Court will construe the motion to
amend as a motion to supplement the pleadings pursuant to Rule 15(d) of the Federal Rules of
Civil Procedure. “The standard under Rule 15(d) is ‘essentially the same’ as that under Rule
15(a), and leave to supplement should be granted unless it causes undue delay or undue
prejudice.” Vernon v. Custer, 2014 WL 1491211, at *2 (M.D. Pa. Apr. 15, 2014) (quoting
Micron Tech. v. Rambus, Inc., 409 F. Supp. 2d 552, 558 (D. Del. 2006)). Similar to an amended
pleading, the decision whether to permit a supplemental pleading is within the Court’s discretion.
Id. (citing Owens-Ill., Inc. v. Lake Shore Land Co., Inc., 610 F.2d 1185, 1188–89 (3d Cir. 1979)).
DISCUSSION
I.

Interlocutory Appeal
A.

Controlling Question of Law

“[A] controlling question of law must encompass ‘at the very least every order which, if
erroneous, would be reversible error on final appeal’ or something ‘serious to the conduct of the

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litigation either practically or legally.’” Guidotti v. Legal Helpers Debt Resolution, LLC, 2017
WL 89556, at *2 (D.N.J. Jan. 9, 2017) (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 754
(3d Cir. 1974)). Questions involving “a district court’s application of facts of the case to
established legal standards are not controlling questions of law” for the purposes of § 1292(b).
Juice Entm’t, LLC v. Live Nation Entm’t, Inc., 353 F. Supp. 3d 309, 312–13 (D.N.J. 2018) (citing
Morgan v. Ford Motor Co., 2007 WL 269806, at *2 (D.N.J. Jan. 25, 2007)). Section 1292(b)
“was not intended to put legal questions before the court of appeals ‘in which the exercise of the
district court’s discretion [was] necessarily intertwined with its understanding of the facts of the
case . . . .’” Morgan, 2007 WL 269806, at *2 (quoting Kapossy v. McGraw-Hill, Inc., 942 F.
Supp. 996, 1002 (D.N.J. 1996)).
The Court’s October 15 Order involves an application of legal principles to the facts of
the case at hand. The Court considered whether, in this case, Plaintiffs had demonstrated a
sufficient basis for their proposed testimony regarding the retail prices of the lost property. Based
on the exhibits attached to Defendant’s Motion in Limine (Exs. 1–3, ECF No. 106-1), the Court
ordered that Plaintiffs could not present the proposed retail prices as evidence at trial. This ruling
was “necessarily intertwined” with the Court’s understanding of the facts of the case, and thus
did not involve a controlling question of law.
B.

Substantial Ground for Difference of Opinion

A difference of opinion “must arise out of genuine doubt as to the correct legal standard.”
P. Schoenfeld Asset Mgmt. v. Cendant Corp., 161 F. Supp. 2d 355, 360 (D.N.J. 2001) (emphasis
added); see also Steel Partners II, L.P. v. Aronson, 2006 WL 3782656, at *4 (D.N.J. Dec. 22,
2006) (explaining that this factor is also met when there is “conflicting precedent” as to the

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correct legal standard). Simply disagreeing with the ruling does not satisfy this standard.
Kapossy, 942 F. Supp. at 1001.
Plaintiffs point to several cases from other state courts or district courts outside of the
Third Circuit to demonstrate the existence of conflicting precedent. (Pl.’s Reply at 2–4, ECF No.
136.) Those cases are not binding on this Court. Additionally, the rulings in those cases are not
clearly in conflict with the October 15 Order. The cases cited by Plaintiffs merely show that, in
some circumstances, courts have allowed parties to introduce evidence of replacement costs for
calculating damages. 6 As stated above, the October 15 Order did not state a categorical rule
prohibiting the use of replacement costs for calculating damages. Instead, it prohibited the use of
the retail prices provided by Plaintiffs based on the facts of this case. Since “there is no
substantial difference of opinion regarding the Court's analysis of the facts and application of the
law to those facts,” Acosta v. Pace Local I-300 Health Fund, 2007 WL 1074093, at *2 (D.N.J.
Apr. 9, 2007), Plaintiffs have not demonstrated a substantial ground for difference of opinion.
C. Materially Advance the Termination of the Litigation
An interlocutory appeal materially advances litigation if it eliminates (1) the need for
trial, (2) complex issues so as to simplify the trial, or (3) issues to make discovery easier and less
costly. F.T.C. v. Wyndham Worldwide Corp., 10 F. Supp. 3d 601, 635 (D.N.J. 2014) (citations
omitted). A critical factor is “whether the interlocutory appeal will cause excessive delay.” In re
Barsan Contractors, 2010 WL 3907116, at *4 (D.N.J. Sept. 30, 2010).

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The circumstances of the cases to which Plaintiffs cite are readily distinguishable. See, e.g.,
Dandrea v. Bd. of Cty. Comm’rs, 356 P.2d 893, 895 (Colo. 1960) (involving replacement costs
for damages to real property, calculated and presented by an expert witness); Matthews v.
Allstate Ins. Co., 731 F. Supp. 2d 552, 558 (E.D. La. 2010) (applying Louisiana state law, which
generally considers replacement costs); Gulf States Utils. Co. v. Low, 79 W.3d 561, 566 (Tex.
2002) (noting that, “[i]n some situations, replacement value does not properly measure damages
because it may represent an economic gain to the plaintiff”).
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Plaintiffs have not presented any arguments as to how interlocutory appeal would
materially advance the termination of the litigation. A decision on the admissibility of testimony
regarding damages at trial would not eliminate the need for trial or eliminate any complex issues,
and discovery in this case is long over. Furthermore, interlocutory appeal at this stage—on the
eve of trial—is heavily disfavored. See, e.g., Hulmes v. Honda Motor Co., Ltd., 936 F. Supp.
195, 212 (D.N.J. 1996), aff’d 141 F.3d 1154 (3d Cir. 1998) (“Delay is a particularly strong
ground for denying appeal if certification is sought from a ruling made shortly before trial.”).
Plaintiffs have failed to satisfy any of the three requirements for interlocutory appeal. For
this reason, Plaintiffs’ Motion for Leave to File an Interlocutory Appeal is denied.
II.

Leave to Supplement
Plaintiffs seek leave to supplement their Complaint in order to include allegations from

2018 and 2019 regarding two “remediations” of their property at 1850 Greenwood Avenue, in
which “there was no notice given, no health issues involved, and the specific timing is indicative
of retaliatory behavior.” (Mot. at 1–2.) Plaintiffs argue that an amendment would conserve
judicial resources and “crystallize issues.” (Id. at 2.) However, Plaintiffs fail to elaborate on these
events and explain how they are tied to this case. More importantly, this request would cause
undue delay. As Defendant asserts, Plaintiffs have “waited until the eleventh hour to seek leave,
despite having knowledge of at least one of the alleged events since 2018.” (Opp’n at 7, ECF No.
135.) As noted above, discovery deadlines have long passed, the Court has ruled on dispositive
motions, and the case is scheduled for trial on March 31, 2020. To allow Plaintiffs to supplement
their pleadings with new allegations would require additional discovery and dispositive motions,
leading to further delays. For these reasons, Plaintiffs’ Motion to Supplement is denied.

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CONCLUSION
For the foregoing reasons, the Motion for Leave to File an Interlocutory Appeal and
Leave to File an Amended Complaint (ECF No. 134) is denied. An appropriate Order will
follow.

Date: February 27, 2020

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

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