NEPTUNE v. CAREY et al

Filing 66

MEMORANDUM OPINION filed. Signed by Judge Brian R. Martinotti on 9/21/2020. (jem)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LOUIS NEPTUNE,

Civil Action No. 3:17-cv-12057 (BRM)
Plaintiff,
MEMORANDUM
OPINION

v.
ANDREW CAREY, et al.,
Defendants.

Before the Court is pro se plaintiff Louis Neptune’s (“Plaintiff”) filing of an “Amended
Motion to Reopen and Reconsideration” (ECF No. 51), “Motion to Reopen Case and
Reconsideration of 2nd Amended Claim” (ECF No. 56), and “Motion to Change Venue” (ECF No.
60). Having reviewed the submissions filed in connection with the motions, for the reasons set
forth below, and for good cause appearing, Plaintiff’s motions are DENIED.
IN APPEARING THAT:
1.

On February 25, 2019, the Court entered an opinion and order dismissing Plaintiff’s

civil rights Complaint in its entirety but permitted Plaintiff to file an amended complaint within
thirty days. (ECF No. 25-26.)
2.

Nearly a month after the deadline expired, Plaintiff requested an extension, and the

Honorable Lois H. Goodman, U.S.M.J. gave him until May 29, 2019, to file an amended
complaint. (ECF No. 29.)
3.

On May 28, 2019, Plaintiff requested an additional 30 days from the date the Court

addressed his Motion for Appointment of Pro Bono Counsel to file his amended complaint. (ECF
No. 30.)

4.

On August 30, 2010, Judge Goodman denied his Motion for Appointment of

Counsel. (ECF No. 33.)
5.

On November 26, 2019, Plaintiff filed his Amended Complaint. (ECF No. 34.) He

subsequently filed a motion for “Section 1983 Malicious Prosecution” (ECF No. 35), and a motion
for default (ECF No. 42).
6.

On January 13, 2020, the Court entered an opinion and order closing this matter,

because Plaintiff twice failed to comply with the Court’s deadlines and failed to provide sufficient
reasons for doing so. (ECF Nos. 45-46.)
7.

Plaintiff now asks the Court to reopen and reconsider his claims under Rule 59(e)

and Rule 60(b). (ECF Nos. 51, 56.) Plaintiff argues “that as a pro se litigant I should be given my
day in court and that my claim shouldn’t be held to the same requirements as that of a lawyer.”
(ECF No. 51 at 1.)
8.

Additionally, Plaintiff moves for a change of venue
outside the Defendants sphere of influence since I will not get a fair
opportunity to be heard if this claim remains in NJ. Lois Goodman
who’s friends with the defendants has ruled in this matter and I’ve
made it clear Lois Goodman is friends with Defendant Daina Pincus
and Freda Wiolfson’s [sic] husband is a retired judge from
Middlesex County who was in Pincus’s courtroom thinking I was
going to take a plea for something I didn’t do.

(D.E. 60 at 1.)
9.

In the District of New Jersey, motions for reconsideration can be made pursuant to

Local Civil Rule 7.1(i). The rule provides that such motions must be made within fourteen days of
the entry of an order. Plaintiff has not complied with this time requirement, as his first motion for

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reconsideration was filed nineteen days after the Court’s dismissal order was entered. 1
Substantively, a motion for reconsideration is viable when one of three scenarios is present: (1) an
intervening change in the controlling law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or prevent manifest injustice. Carmichael
v. Everson, No. 03-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004) (citations omitted).
Granting a motion for reconsideration is an “extraordinary remedy,” to be granted “sparingly.” NL
Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996) (citations omitted).
10.

Here, Plaintiff’s motion for reconsideration amounts to a request for the court’s

leniency because of his pro se status. Plaintiff’s argument does not qualify under any of the
previously listed bases to grant a motion for reconsideration. Moreover, Plaintiff’s argument belies
the record, which demonstrates the Court gave him multiple opportunities to file his amended
complaint. Consequently, Plaintiff’s motion for reconsideration pursuant to Local Civil Rule 7.1(i)
is DENIED.
11.

Plaintiff also moves the Court for relief from a judgment or order under Rule 60.

Rule 60(b)(3), (4), and (6) permit a court to “relieve a party or its legal representative from a final
judgment, order, or proceeding” if an opposing party committed “fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct;” if “the judgment is void;” or for “any
other reason that justifies relief,” respectively. Fed. R. Civ. P. 60(b)(3)-(4), (6). Rule 60(d)(3)
permits a court to “set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3).
12.

“To show fraud on the court, a party must show: (1) an intentional fraud; (2) by an

officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court.”

The Court entered its Order closing the matter on January 15, 2020. (ECF No. 46). Plaintiff filed
his first “Motion to Open and Reconsideration” on February 3, 2020. (ECF No. 50.)
1

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Herring v. United States, 424 F.3d 384, 386 (3d Cir. 2005). “[A] determination of fraud on the
court may be justified only by ‘the most egregious misconduct directed to the court itself,’” such
as bribery of a judge or fabrication of evidence by counsel, but not perjury by a witness. Id. at 386–
87, 390. “To be entitled to relief under this provision, a party must establish by clear and
convincing evidence that: (1) the other party engaged in fraud, misrepresentation, or other
misconduct, and (2) this behavior prevented the moving party from fully and fairly presenting her
case.” Brown v. Friel, Civ. Action No. 16-1819, 2020 WL 1820981 at *3 (E.D. Pa. Apr. 10, 2020)
(citations omitted).
13.

Plaintiff alleges various forms of collusion between various parties including

judges, attorneys and other public officials who have engaged in purportedly nefarious behavior
to thwart Plaintiff’s action. (ECF No. 51 at 7-8.) For example, he alleges the Court’s January 13,
2020 order dismissing the case was “a clear coordinated effort by Gurbir Grewal, Ashley Costello
and others to cover up Marcia Silva and Andrew Carey criminal acts.” (Id.) 2 He also alleges some
of these officials “are using District Court to make sure my claim is dismissed so I can continue to
walk around with a felony conviction that Andrew Charles Carey and Marcia Silva created in
Middlesex County, NJ. (Id. at 9.)
14.

Plaintiff has not substantiated these allegations of untoward activity by opposing

parties or the Court by clear and convincing evidence.
15.

The Court will therefore DENY both Plaintiff’s motions for reconsideration and

motion for relief from a judgment or order.

Gurbir Grewal and Ashley Costello are not parties in this matter, however Andrew Carey and
Marcia Silva are named defendants.
2

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16.

Because the Court denies Plaintiff’s motions for reconsideration and motion for

relief from a judgment or order, his motion for change of venue (ECF No. 60), is effectively moot.
17.

Nonetheless, the Court will deny the motion for change of venue on the merits.
Section 1404(a) of Title 28 of the United States Code permits
a district court “[f]or the convenience of parties and
witnesses, [and] in the interest of justice” to transfer an
action to another district “where it might have been
brought.” Abrams v. Gen. Nutrition Cos., Inc., 2006 WL
2739642, at *8 (D.N.J. Sept.26, 2006) (citing 28 U.S.C. §
1404(a)). “An action might have been brought in another
district if: (1) venue is proper in the [other] district, and (2)
the [other] district can exercise [personal] jurisdiction over
all the parties.” Id. (citing Shutte v. Armco Steel Corp., 431
F.2d 22, 24 (3d Cir.1970)). Thus, “[t]he first step in a court's
analysis of a transfer motion is to determine whether
[personal jurisdiction and] venue would be proper in the
transferee district.” Marino v. Kent Line Int'l, 2002 WL
31618496, at *2 (E.D. Pa. Nov.20, 2002) (citing Pro Spice,
Inc. v. Omni Trade Group, Inc., 173 F.Supp.2d 336, 339
(E.D. Pa.2001)). The movant bears the burden of
demonstrating that transfer is warranted. Id.

Ramada Worldwide Inc. v. Grand Rios Investments, LLC, Civ. Action No. 13-3878, 2013 WL
5773085 at *3 (D.N.J. Oct. 23, 2013).
18.

Plaintiff does not identify a particular “transferee district” in his motion. He only

requests that his matter be transferred “outside the Defendants sphere of influence.” (ECF No. 60
at 1.) Moreover, he has not demonstrated how another district can exercise personal jurisdiction.
19.

Consequently, Plaintiff’s motion for change of venue is DENIED.

An appropriate order will follow.
Dated: September 21, 2020

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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