EBERT et al v. TOWNSHIP OF HAMILTON et al
MEMORANDUM and ORDER Denying Plaintiffs' 47 Motion for Clarification and 49 Motion for Reconsideration. Signed by Judge Anne E. Thompson on 10/4/2017. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OCT 0 4 2017
WilLIAM T. WALSH
LAWRENCE B. EBERT and REBECCA A.
Civ. No. 15-7331
TOWNSHIP OF HAMILTON, MAYOR
KELLY A. YAEDE (in her official and
individual capacity), JOHN DOE (I), and
JOHN DOE (11),
This matter comes before the Court on a Motion for Clarification (ECF No. 47) and
Motion for Reconsideration (ECF No. 49) brought by Plaintiffs Lawrence B. Ebert and Rebecca
A. Vares-Ebert ("Plaintiffs"). The motions concern the Court's August 9, 2017 Memorandum
Opinion and Order (ECF Nos. 43, 44) denying Plaintiffs' appeal (ECF No. 37) of a decision of
the Magistrate Judge (ECF No. 35). Defendants Township of Hamilton ("Township Defendant")
and Mayor Kelly A. Yaede (collectively "Defendants") oppose. (ECF No. 55.) The Court has
decided the motions based on the parties' written submissions without oral argument pursuant to
Local Civil Rule 78.l(b). For the reasons stated herein, Plaintiffs' motions are denied.
The Court assumes the parties' familiarity with the facts of this case and only recites facts
relevant to this Opinion. Earlier in this action, Magistrate Judge Bongiovanni entered a
Scheduling Order and held multiple discovery conferences with the parties. (See ECF Nos. 11,
13, 15, 32.) Plaintiffs, by notice of deposition, sought to depose
"A 30(b)(6) witness who will bind Hamilton Township as to the
ordinances authorizing the actions taken by Hamilton Township ..
. , including how notice of violation is served, how access to the
property was obtained (and how it is implemented consonant with
controlling Constitutional law), what personal property may be
taken, what property was taken, and how the 'neighborhood
improvement program' of Hamilton Township has been
(ECF No. 35 at 4.) The Court ordered the parties to submit letters explaining their positions
regarding Plaintiffs' 30(b)(6) notice by April 14, 2017. (ECF No. 33.) Defendants objected to
Plaintiffs' request. (See "May 11th Order," ECF No. 35; see also ECF No. 34.) On May 11,
2017, Judge Bongiovanni denied Plaintiffs' request. (May 11th Order.)
Judge Bongiovanni determined it was inappropriate to compel the Township Defendant
"to produce a Rule 30(b)(6) deponent to testify as to how the
subject Notice of Violation was served, how access to the property
was obtained, what personal property may be taken, and what
property was taken. Such testimony should be provided by fact
witnesses who have personal knowledge of those matters."
(May 11th Order at 2.) Judge Bongiovanni declined to order a Rule 30(b)(6) deposition in light
of proportionality concerns. (Id.) With respect to Plaintiffs' request to "bind Hamilton Township
as to the ordinances authorizing the actions taken," Judge Bongiovanni instructed the Township
Defendant "to provide a certification from a Township official identifying all ordinances which it
contends authorized the actions taken .... '' (Id.) Plaintiffs appealed Judge Bongiovanni's Order.
(ECF No. 37.) After considering the parties' briefing papers, this Court denied Plaintiffs' appeal
on August 9, 2017 ("August 9th Opinion"). (ECF Nos. 43, 44.) On August 16, 2017, Plaintiffs
moved for clarification of the August 9th Opinion. (ECF No. 47.) On August 23, 2017, Plaintiffs
moved for reconsideration of the August 9th Opinion. (ECF No. 49.) After an extension of time
(ECF No. 52), Defendants submitted their opposition on September 18, 2017. (ECF No. 55.)
"The general purpose of a motion for clarification is to explain or clarify something
ambiguous or vague, not to alter or amend." Lynch v. Tropicana Prod., Inc., 2013 WL 4804528,
at *l (D.N.J. Sept. 9, 2013) (quoting Resolution Tr. Corp. v. KPMG Peat Marwick, 1993 WL
211555, at *2 (E.D. Pa. June 8, 1993)). "Conversely, the purpose of a motion for reconsideration
is 'to correct manifest errors oflaw or fact or to present newly discovered evidence."' Id.
(quoting Harsco Corp. v. Zlotnic/d, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 416 U.S.
1171 (1986)). Although their purposes are different, "[m]otions for clarification are often
evaluated under the standard for a motion for reconsideration in this jurisdiction." Id.; see, e.g.,
Antoine v. Rucker, 2001WL789068, at *1 (D.N.J. Mar. 12, 2007).
A timely motion for reconsideration pursuant to Local Civil Rule 7.1 (i) may only be
granted upon a finding of at least one of the following grounds: "( 1) an intervening change in the
controlling law has occurred; (2) evidence not previously available has become available; or (3)
it is necessary to correct a clear error of law or prevent manifest injustice." Database America,
Inc. v. Bellsouth Adver. & Pub. Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993); see also North
River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Reconsideration is
an "extraordinary remedy'' that is rarely granted. Brackett v. Ashcroft, 2003 WL 22303078, at *2
(D.N.J. Oct. 7, 2003). "A party seeking reconsideration must show more than a disagreement
with the Court's decision, and 'recapitulation of the cases and arguments considered by the court
before rendering its original decision fails to carry the moving party's burden."' G-69 v. Degnan,
748 F. Supp. 274, 275 (D.N.J. 1990) (citations omitted); United States v. Compaction Sys. Corp.,
88 F. Supp. 2d 339, 345 (D.N.J. 1999).
A motion for reconsideration is not an opportunity to ask the Court to rethink what it has
already thought through. See Oritani S & L v. Fidelity & Deposit, 744 F. Supp. 1311, 1314
(D.N.J. 1990). "An argument may be regarded as having been considered if it is presented to the
court in written submissions and in oral argument." U.S. ex rel. Simpson v. Bayer Corp., 2015
WL 3618295, at *2 (D.N.J. June 9, 2015); see also Eichorn v. AT & T Corp., 1999 WL
33471890 (D.N.J. Aug. 23, 1999). Thus, even an argument the court did not explicitly mention is
"not deemed overlooked because it is not specifically addressed in a court's opinion." Ashton v.
AT&T Corp., 2006 WL 6909588, at *2 (D.N.J. Feb. 2, 2006).
Plaintiffs raise nearly identical arguments in their motions for clarification and for
reconsideration. The bulk of these arguments are appropriately construed as requests for
reconsideration, not clarification, since they predominantly relate to alleged pitfalls in the
Court's reasoning or conclusions, not ambiguity in the Court's opinion. Across both motions,
Plaintiffs argue that the Court applied an incorrect standard in deciding their appeal, applied
controlling precedent imprecisely and erroneously, overlooked relevant case law, and committed
clear error of law in its analysis. Only two of Plaintiffs' assertions genuinely relate to clarity and
shall be considered part of the motion for clarification.
First, Plaintiffs note that the Court's August 9th Opinion focused on four of Plaintiffs'
nine objections to Judge Bongiovanni's May 11th Order. (Pis.' Br. at 4, ECF No. 47.) Plain~iffs
request that the Court "avoid ambiguity'' by "stat[ing] explicitly that Objections I though IX each
are overruled." (Id.) While the Court did specifically address four of Plaintiffs' arguments, the
Court also clearly considered and rejected all of Plaintiffs' remaining arguments. (Aug. 9 Mem.
Op. at 5, ECF No. 43 ("The Court has considered all of Plaintiffs' other arguments and is not
persuaded .... ")) Clarification is not warranted here.
Second, Plaintiffs express confusion as to the standard of review the Court employedwhether the Court reviewed Judge Bongiovanni' s order under the "contrary to law" or "abuse of
discretion" standard. The Court's August 9th Opinion set out the legal standard for reviewing
nondispositive orders by a magistrate judge (clearly erroneous or contrary to law), and the
specific standard for reviewing a magistrate judge's discretionary decisions in discovery matters
(abuse of discretion). The Court then noted the operative standard of review throughout its
analysis section. The Court does not find further clarification is warranted.
Turning to reconsideration, Plaintiffs have not demonstrated how any of the three limited
circumstances in which reconsideration is warranted applies here. At the outset, Plaintiffs do not
argue that the Court faces an intervening change in controlling law or new evidence not
previously available. Thus, the only possible mechanism to achieve reconsideration would be
necessity to correct a clear error of law or to prevent manifest injustice.
Plaintiffs have failed to meet the high bar that reconsideration demands. To the contrary,
Plaintiffs improperly rehash arguments the Court considered and rejected in its August 9th
Opinion. Plaintiffs argue the Court misinterpreted or overlooked certain cases, but the Court
disagrees. The Court's decision not to discuss certain cases in its prior opinion does not mean the
Court overlooked those cases. See Simpson, 2015 WL 3618295, at *2. Rather, the Court
carefully reviewed each of Plaintiffs' arguments and found that they were unsupported by
controlling precedent and did not meet Plaintiffs' burden as the appellants.
Plaintiffs have also failed to establish that reconsideration is necessary to prevent
manifest injustice. Plaintiffs argue that, without a Rule 30(b)(6) deposition, they have been
denied information necessary to prove their case, amounting to manifest injustice. While
Plaintiffs rightly assert that parties have latitude to select discovery methods they deem
appropriate, this Court and the Third Circuit recognize that "[a]lthough the scope of discovery
under the Federal Rules is broad, this right is not unlimited and may be circumscribed." Kirsch v.
Delta Dental ofNew Jersey, Inc., 2008 WL 441860, at *2 (D.N.J. Feb. 14, 2008) (quoting Bayer
AG v. Betachem, Inc., 173 F.3d 188 (3d Cir. 1999)). The cases Plaintiffs cite which allowed Rule
30(b)(6) depositions, see, e.g., Richardson v. Rock City Mech. Co., LLC, 2010 WL 711830, at *6
(M.D. Tenn. Feb. 24, 2010), do not preclude a magistrate judge from determining such a
deposition was not appropriate here. This Court's August 9th Opinion determined Judge
Bongiovanni did not abuse her discretion; her noted "proportionality concerns" reflect that
the frequency or extent of use of the discovery methods otherwise
permitted under these rules and by any local rule shall be limited
by the court if the burden or the expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the
amount in controversy, the parties' resources, the importance of
the issues at stake in the action and the importance of the discovery
in resolving the issues.
Kirsch, 2008 WL 441860, at *2. Judge Bongiovanni' s May 11th Order concluded Plaintiffs
primarily sought information concerning the specific events underlying this case. (See May 11th
Order at 2.) Accordingly, the Order permitted Plaintiffs to depose fact witnesses with personal
knowledge of those events but, in view of Plaintiff's request for evidence of custom and practice,
also required the Township Defendant to produce a certification identifying the ordinances which
it believed authorized the actions taken. (Id.) These determinations were soundly within the
discretion of the Magistrate Judge. Plaintiffs' disagreement with this outcome does not render
Judge Bongiovanni's decision an abuse of discretion and, in tum, does not render this Court's
August 9th Opinion clear error of law or manifest injustice.
IT IS, on this~ day of October, 2017,
ORDERED that Plaintiffs' Motion for Clarification (ECF No. 47) and Motion for
Reconsideration (ECF No. 49) are DENIED.
ANNE E. THOPSON:USJ)i
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