EBERT et al v. TOWNSHIP OF HAMILTON et al

Filing 95

OPINION filed. Signed by Judge Anne E. Thompson on 10/12/2018. (mmh)

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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ocr 15 2010
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LAWRENCE B. EBERT and REBECCA A.
VARES-EBERT,
Civ. No. 15-7331
Plaintiffs,
V.

OPINION
TOWNSHIP OF HAMILTON, et al.,
Defendants.
THOMPSON, U.S.D.J.

INTRODUCTION
This matter comes before the Court on a Motion for Clarification brought by Plaintiffs
Lawrence B. Ebert and Rebecca A. Vares-Ebert ("Plaintiffs"). (Pls.' Mot., ECF No. 89.) The
Motion seeks clarification of the Court's Opinion filed on August 9, 2018 (ECF No. 86).
Defendant Township of Hamilton ("Township Defendant") and Mayor Kelly A. Yaede
("Defendant Yaede") (collectively, "Defendants") oppose. (Defs.' Br., ECF No. 91.) The Court
has decided the Motion after considering the parties' written submissions without oral argument
pursuant to Local Civil Rule 78.l(b). For the following reasons, Plaintiffs' Motion for
Clarification is denied.

BACKGROUND
As in past opinions in this matter, the Court again recites only those facts relevant to this
Opinion. On August 9, 2018, the Court issued an Opinion and Order granting in part and
denying in part Defendants' Motion for Summary Judgment. (ECF Nos. 86, 87.) The Court
entered summary judgment in favor of Township Defendant on Plaintiffs' ( 1) substantive due
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process deprivation of property claim (Count One), (2) § 1985 conspiracy claim (Count Four),
(3) Eighth Amendment excessive fine claim (Count Five), and (4) Fourteenth Amendment
procedural due process claim brought via the New Jersey Civils Rights Act (Count Six); but the
Court denied Township Defendant's Motion for Summary Judgment in regard to all of Plaintiffs'
claims brought pursuant to § 1983 premised on violations of the Fourth Amendment (Counts
One and Three) and Fourteenth Amendment procedural due process (Counts One and Three).
(See Order at 1-2.) The Court also entered summary judgment in favor of Defendant Yaede on
all claims brought against her (Counts Two, Four, and Six). (Id.)
On August 24, 2018, Plaintiffs filed the instant Motion seeking, as Plaintiffs characterize,
"clarification" of the August 9, 2018 Opinion and Order. 1 (Pis.' Mot. at 2.) Plaintiffs seek
clarification regarding, what the Court interprets as, roughly six topics: (1) Plaintiffs' declaration
filed on July 13, 2018 (id. at 2-6); (2) the Court's reliance on Elsmere (id. at 6-13); (3) the
Court's analysis on Camara (id. at 14-16); (4) a contested fact contained within the background
section of the Opinion (id. at 17-18); (5) substantive due process (id. at 18-19); and (6)
Plaintiffs' renewed request for a Rule 30(b)(6) witness (id. at 19).
On September 14, 2018, Defendants filed an opposition brief, urging the Court to deny
Plaintiffs' Motion and contending that "while Plaintiffs' Motion is titled 'Motion for
Clarification,' it should be treated as a Motion for Reconsideration ... [because] it disagrees
with, and seeks reconsideration of, the contents of [the August 9, 2018 Opinion and Order]."
(Defs.' Br. at 2.) Defendants further contend that "Plaintiffs are unable to prove any of the three
grounds necessary to establish that reconsideration ... is appropriate." (Defs.' Br. at 2-4.)

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Although Plaintiffs seek clarification of the "Memorandum Order filed August 9, 2018," the
Court filed no memorandum order on August 9, 2018. The Court instead construes Plaintiffs'
r~quest for clarification to be in regard to the Court's Opinion and Order filed on August 9, 2018.
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On September 21, 2018, Plaintiffs filed a reply brief, submitting an argument comprising
a strict interpretation of motions for clarification offering that "[t]here is no legal authority cited
that a request for clarification must enumerate the words 'vague' or 'ambiguous"' and "[t]here is
no legal authority cited for the proposition that a motion that never mentions that words
'reconsider,' 'reconsideration,' 'revise,' 'alter,' or functional equivalents thereof can be treated
as a motion for reconsideration." (Pls.' Reply at 3, ECF No. 93.)

LEGAL STANDARD
"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 Prods., Inc., 2013 U.S. Dist.
LEXIS 128410, at *1 (D.N.J. Sept. 9, 2013) (internal citations omitted); see also, e.g., Engers v.

AT&T Corp., 2006 U.S. Dist. LEXIS 85117, at *16 (D.N.J. Nov. 15, 2006) (granting motion for
clarification where "[t]he Court neglected to specify [in the order] that Count Six was dismissed
with prejudice" but the text of the opinion stated "that such dismissal was with prejudice").

In comparison, motions for reconsideration are intended "to correct manifest errors of
law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985). "Reconsideration is an extraordinary remedy that is granted very sparingly."

Brackett v. Ashcroft, 2003 U.S. Dist. LEXIS 21312, at *2 (D.N.J. Oct. 7, 2003) (internal citations
omitted); see also L. Civ. R. 7.l(i), cmt. 6(d). Pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure and Rule 7 .1 (i) of the Local Civil Rules, a motion for reconsideration must be
based on one of three grounds: ( 1) an intervening change in controlling law, (2) new evidence
not previously available, or (3) a clear error of law or manifest injustice. N. River Ins. Co. v.

CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). A motion for reconsideration,
however, "is not warranted ... where (1) the movant simply repeats the cases and arguments

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previously analyzed by the court, or (2) the movant has filed the motion merely to disagree with
or relitigate the court's initial decision." Hanover Architectural Serv., P.A. v. Christian
Testimony-Morris, N.P., 2015 U.S. Dist. LEXIS 94916, at *3 (D.N.J. July 21, 2015) (internal
citations omitted). Rather, a motion for reconsideration may be granted only if there is a
dispositive factual or legal matter that was presented but not considered that would have
reasonably resulted in a different conclusion by the court. White v. City of Trenton, 848 F. Supp.
2d 497, 500 (D.N.J. 2012). Mere disagreement with a court's decision should be raised through
the appellate process and is thus inappropriate on a motion for reconsideration. United States v.
. Compaction Sys. Corp., 88 F. Supp. 2d 339,345 (D.N.J. 1999).

DISCUSSION
Courts commonly construe motions for clarification as motions for reconsideration. See,
e.g., Mathis v. Christian Heating & Air Conditioning, Inc., 91 F. Supp. 3d 651, 655-56 (E.D. Pa.
2015) (concluding that "[a]lthough styled as a Motion for Clarification, plaintiffs Motion
actually seeks reconsideration"). In fact, this is not the first time that Plaintiffs have filed a
motion improperly requesting similar relief. On October 5, 2017, this Court determined that
"Plaintiffs raise[d] nearly identical arguments in their motions for clarification and for
reconsideration" and thus "[t]he bulk of these arguments [were] appropriately construed as

requests for reconsideration, not clarification, since they predominantly relate[d] to alleged
pitfalls in the Court's reasoning or conclusions, not ambiguity in the Court's opinion." (See
Mem. Op. & Order at 4, ECF No. 61.)
Likewise, here, Plaintiffs again submit many arguments more appropriately construed as
requests for reconsideration, rather than clarification. Plaintiffs use the guise of a motion for
clarification to identify specific portions of and essentially disagree with the Court's Opinion and

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Order. Nonetheless, the Court examines each of Plaintiffs' requests for either clarification or
reconsideration.

I.

Plaintiffs' Declaration Filed on July 13, 2018
On June 8, 2018, Defendants moved for summary judgment. (ECF No. 74.) On July 5,

2018, Plaintiffs "request[ed] permission to file a sur-reply brief," which the Court denied. (ECF
No. 81.) Nonetheless, on July 13, 2018; after the parties had fully briefed the Motion for
Summary Judgment, Plaintiffs filed a "Declaration in Opposition to Defendants' Motion for
Summary Judgment" (the "Declaration"). (ECF No. 83.) On July 16, 2018, Defendants filed a
letter contending that the Declaration was "an intentional disregard of [the Court's] order that no
sur reply be permitted." (ECF No. 84.) The Court addressed the Declaration in its August 9,
2018 Opinion:
Mr. Ebert filed another declaration on the same topic on July 13, 2018. (ECF No.
83.) Defense counsel asked the Court to strike this declaration and impose
sanctions (ECF No. 84), as the Court had already denied Plaintiffs an opportunity
to file a sur-reply (ECF No. 81). Mr. Ebert responded by letter, arguing that his
most-recent declaration does not constitute a sur-reply. (ECF No. 85.) The Court
has reviewed these materials and will take no further action with respect to them;
Plaintiffs have not moved to amend their complaint to include new allegations
about the events of 2018, and therefore the events described are beyond the
Court's review on this Motion. However, sanctions are not warranted.
(Op. at 9 n.7.) Plaintiffs now seek clarification regarding the "status" of the Declaration;

however, the Court finds that it adequately addressed the Declaration and thus clarification is not
warranted.
Separately, Plaintiffs also "request[] clarification as to whether an amendment of the
complaint would be entertained by the Court at this time." Because the "general purpose of a
motion for clarification is to explain or clarify something ambiguous or·vague," Lynch, 2013

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U.S. Dist. LEXIS 128410, at *1, Plaintiffs elect the improper vehicle for their request. Plaintiffs'
request for clarification in regard to the Declaration is therefore denied.

II.

The Court's Reliance on Elsmere
Plaintiffs contend that the notice of violation received was "ultra vires" because "the

notice of violation referenced only a violation of Hamilton Ordinance 66-71," which "conveys
no emergency power on the health officer for summary abatement of such a violation." (Pis.'
Mot. at 7.) Plaintiffs point out that the Opinion references a procedure outlined in Hamilton
Ordinance 110-33 (Op. at 17-18), "which never occurred in the present case" (Pis.' Mot. at 8).
Plaintiffs also disagree with the Court's citation to and reliance on Elsmere Park Club, LP v.
Town of Elsmere, 542 F.3d 412 (3d Cir. 2008) for the propositions that "the dispute about which

ordinance(s) governed is not dispositive" and that the "notice provided to Plaintiffs was not
constitutionally deficient." (Op. at 19; see also Pis.' Mot. at 6-13.)
The Court construes this request as seeking reconsideration, rather than clarification.
Plaintiffs complain that "[t]he Order apparently gave no weight to the facts supplied by
Plaintiffs" (Pis.' Mot. at 8-10) and that "Plaintiff[s] do[] not believe that Elsmere is on point"
(id. at 10-13). Although Plaintiffs request "clarification," Plaintiffs essentially "filed the motion
merely to disagree with or relitigate the [C]ourt's initial decision." Hanover Architectural, 2015

U.S. Dist. LEXIS 94916, at *3; see also In re Telfair, 145 F. Supp. 2d 536, 561 (D.N.J. 2010)
("[M]ere disagreement with the district court's decision is an inappropriate ground for a motion
for reconsideration: such disagreement should be raised through the appellate process."). Oddly
enough, however, these procedural due process claims survived Defendants' Motion for
Summary Judgment. (Op. at 19.) But because Plaintiffs do not offer any change in law, submit
any new evidence not previously available, or correct a clear error of law, see North River

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Insurance Co., 52 F.3d at 1218; L. Civ. R. 7.l(i), cmt. 6(d), the Court denies Plaintiffs' Motion
in regard to the Court's reliance on Elsmere, 542 F.3d at 228.

III.

The Court's Analysis of Camara
Plaintiffs request clarification regarding the Court's analysis of Camara v. Municipal

Court, 387 U.S. 523 (1967), and the relevant limitations of the Fourth Amendment principles set
forth in that case. (Pls.' Mot. at 14-16.) In Plaintiffs' brief opposing Defendants' Motion for
Summary Judgment, Plaintiffs relied on Camara for the proposition that a warrant is required for
administrative searches of homes, absent certain exceptions. (Pls.' Summ. J. Opp'n at 10, 1618, ECF No. 79.) Defendants attempted to differentiate Camara in their reply brief (Defs.'
Summ. J. Reply at 2-3, ECF No. 82), but the Court distinguished Camara in a different way,
holding that "Plaintiffs' reliance on Camara [was] misplaced, as Camara dealt with a wrongful
warrantless initial inspection" but "Plaintiffs allege that Defendants violated their Fourth
Amendment rights after Defendants had already determined [through an initial inspection] the
presence of nuisance conditions on Plaintiffs' property" (Op. at 15).
Plaintiffs identify that the Opinion "relies on an argument not presented by Defendants."
(Pls.' Mot. at 14.) But the parties both had an opportunity to brief-and in fact, did brief-the
import of Camara. Though Plaintiffs disagree with the Court's analysis of Camara, the Court

will not "rethink what it had already thought through-rightly or wrongly." Arista Records, Inc.
v. Flea World, Inc., 356 F. Supp. 2d 411, 415 (D.N.J. 2005). Separately, Plaintiffs also request
an opportunity to re-brief this issue, but Plaintiffs have failed to meet the high burden of
demonstrating that reconsideration is warranted. Accordingly, Plaintiffs' Motion is denied in
regard to the Court's analysis of Camara.

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IVo

A Fact Contained within the Opinion's Background Section
Plaintiffs next argue that although the Opinion states that Mr. Ebert "obstructed the front-

end-loader from operating" while Defendants were removing debris from Plaintiffs' property
(Op. at 6), Plaintiffs contest this fact. (Pis.' Mot. at 17-18.) Plaintiffs request "a clarification of
'why' this unsubstantiated statement was included in the [Opinion]" and a "modification of the
[Opinion] to reflect, at a minimum, that the truth of this statement is challenged."
First, the Court indeed recognized in its Opinion that "[t]he parties largely dispute the
sequence of events on June 28, 2014," the day Defendants removed the debris. (Op. at 5.)
Moreover, Plaintiffs do not seek clarification regarding "something ambiguous or vague."
Lynch, 2013 U.S. Dist. LEXIS 128410, at *1 (outlining the general purpose of a motion for

clarification). Rather, Plaintiffs seek "modification" (Pis.' Mot. at 18), akin to alteration or
amendment which contravenes the purpose of a motion for clarification. See Lynch, 2013 U.S.
Dist. LEXIS 128410, at * 1. Construing Plaintiffs' request as seeking reconsideration is equally
unhelpful to Plaintiffs: Plaintiffs have not identified any change in law, new evidence not
previously available, or clear error of law. See N. River Ins. Co., 52 F.3d at 1218. Plaintiffs
merely disagree with a contested fact that the Court included in its Opinion. In re Telfair, 145 F.
Supp. 2d at 561 (explaining that "mere disagreement with the district court's decision is an

inappropriate ground for a motion for reconsideration"). Accordingly, Plaintiffs' Motion in
regard to the background section of the Opinion and the facts contained therein is denied.

V.

Substantive Due Process
Plaintiffs also point out that the Court denied Plaintiffs' substantive due process claims,

yet "[the Complaint] does not reveal that Plaintiffs asserted or argued 'substantive due process."'
(Pls.' Mot. at 18.) In the Opinion, the Court explained that claims pursuant to § 1983 "are

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distinct, as§ 1983 itself creates no substantive rights." (Op. at 10 (citing Ferreira v. Town of E.
Hampton, 56 F. Supp. 3d 211,222 (E.D.N.Y. 2014)).) Because Plaintiffs generically pleaded

that Defendants violated the Fourteenth Amendment when Defendants allegedly deprived
Plaintiffs of "life, liberty, or property, without due process of law" (Compl. <J[ 83, ECF No. 1), the
Court acknowledged that it-while "bearing in mind the need to liberally construe [the]
pleadings prepared by prose [Plaintiffs]"-"read[] the first cause of action to extend to
additional alleged underlying constitutional violations, including Fourteenth Amendment
procedural and substantive due process claims premised on derivations of liberty and property"
(Op. at 10). Although the Court entered summary judgment in favor of Defendants in regard to
Plaintiffs' substantive due process claim regarding deprivation of property (id. at 11), Plaintiffs'
substantive due process claim regarding deprivation of liberty survived (id. at 12). In any event,
Plaintiffs neither pose a question to the Court nor make an actual request for clarification
regarding substantive due process. (See Pls.' Mot. at 18-19 (noting only that "[i]f there were any
references to substantive due process [in the Complaint], such issues have not been addressed in
the briefing").) Accordingly, Plaintiffs' Motion in regard to their substantive due process claim
is denied.
VI.

Renewed Request for a Rule 30(b)(6) Witness

Finally, Plaintiffs attempt to revive stale arguments the Court previously rejected.
Plaintiffs contend that the Court's Order from August 9, 2017-exactly one year before the
Court's Order at issue here, which was filed on August 9, 2018-improperly "denied access to a
[Rule] 30(b)(6) witness, in effect denying access to the facts necessary to establish custom and
practice in a 1983 or 1985 action." (Pls.' Mot. at 19.) The Court is unable to interpret any
specific request for clarification; rather, the Court construes Plaintiffs' contention as a request for

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reconsideration. But Plaintiffs assert no viable reason as to why the Court should contemplate
reconsideration. Moreover, Plaintiffs already moved this Court for reconsideration as to a Rule
30(b)(6) witness about a year ago (ECF Nos. 47-1, 49-1), and the Court properly denied
Plaintiffs' request then as well (Mem. Op. & Order at 5--6 (denying Plaintiffs' motion for
clarification and motion for reconsideration)). Plaintiffs, here, simply attempt to rehash old
arguments that this Court already considered and rejected. Accordingly, the Court denies
Plaintiffs' renewed request for a Rule 30(b)(6) witness.

CONCLUSION
For the reasons stated herein, Plaintiffs' Motion for Clarification is denied. An
appropriate order will follow.

~~-ANNE E.

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THOMPSON,X.0.1.