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) (quoting Carteret Savings Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)). See also Egloff v. New Jersey Air Nat. Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988) (motion for reconsideration denied where plaintiff failed to cite any pertinent case law or fact court may have overlooked). Where the motion raises only a party's disagreement with a decision of the court, that dispute "should be dealt with in the normal appellate process, not on a motion for reargument under . . . [General] Rule 12I." Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988).
Bermingham alleges controlling principles of law were misconstrued in the 20 November 1992 Opinion. He challenges two aspects of the 20 November 1992 Opinion: the standard of review for a motion to dismiss applied by the court and the analysis of Bermingham's Section 1981, pre- and post-amendment, employment discrimination claim. Bermingham 12I Brief at 1.
1. Standard for Rule 12(b)(6) Motion to Dismiss
In the Bermingham 12I Brief, the standard of review for a motion to dismiss is discussed. Bermingham 12I Brief at 1-4. However, Bermingham merely reiterates the standard set forth in the 20 November 1992 Opinion. 20 November 1992 Opinion at 25-26. Bermingham asserts that, in analyzing a motion to dismiss, the allegations in the Complaint must be taken as true. Bermingham 12I Brief at 1. The 20 November 1992 Opinion stated: "For the purposes of this opinion, the facts alleged in [the Amended] Complaint are taken to be true." 20 November 1992 Opinion at 5, n.8.
Bermingham asserts the allegations must be liberally viewed and inferences drawn in favor of the plaintiff. Bermingham 12I Brief at 1. The 20 November 1992 Opinion stated: "All allegations in the Amended Complaint must be . . . viewed in the light most favorable to the plaintiff." 20 November 1992 Opinion at 25-26. Bermingham asserts a complaint should be dismissed if it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of his claim. Bermingham 12I Brief at 1. The 20 November 1992 Opinion stated: "A court may dismiss for failure to state a claim where it appears beyond doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations." 20 November 1992 Opinion at 25.
Finally, Bermingham cites Conley v. Gibson, 355 U.S. 41 (1957), as the controlling case. Bermingham 12I Brief at 1. Conley was expressly relied upon in the 20 November 1992 Opinion. 20 November 1992 Opinion at 25. Accordingly, Bermingham has not raised any controlling authority affecting the analysis of a motion to dismiss overlooked by the 20 November 1992 Opinion and has failed to provide a basis for reconsideration.
Bermingham asserts the allegations in the Amended Complaint satisfied the requirement of a short plain statement of the claim. He contends that through the allegations of specific conduct, Defendants were placed on notice as to which rights were violated, the time and place of the conduct and the identity of the specific people responsible. Bermingham 12I Brief at 2. He asserts he does not bear a burden to set forth, in the Amended Complaint, all the facts upon which he intends to prove his case or to plead additional facts to those in the Amended Complaint to withstand a motion to dismiss. Id. at 3. Bermingham contends a complaint should not be dismissed where discovery will yield evidence to support the complaint.
Id. at 3-4 (quoting Bogosian v. Gulf Oil Corp., 561 F.2d 434, 445-46 (3d Cir. 1977).
It is undisputed Bermingham set forth extensive factual allegations in the Amended Complaint. The 20 November 1992 Opinion specifically observed that the Amended Complaint "is over sixty pages long and sets forth more than two hundred and sixty paragraphs of allegations." 20 November 1992 Opinion at 1, n.1. However, notice pleading does not relieve Bermingham of the obligation to set forth allegations that state a cause of action. The 20 November 1992 Opinion did not hold that Bermingham failed to prove his claim. Rather, the 20 November 1992 Opinion fully and carefully considered all the allegations in the Amended Complaint and held that Bermingham's allegations, and any other facts which Bermingham could put forth consistent with the Amended Complaint,
did not, and could not, state a claim under Title VII or Section 1981 (pre and post-amendment).
Bermingham asserts the 20 November 1992 Opinion erroneously relied, in a sting-cite at 26, on Briscoe v. LaHue, 663 F.2d 713 (7th Cir. 1981), aff'd, 460 U.S. 325 (1983), for the proposition that "legal conclusions made in the guise of factual allegations are not given the presumption of truthfulness."
20 November 1992 Opinion at 26. In Briscoe, the court rejected the plaintiff's allegations of conspiracy because the "recitation of legal conclusions [was] wholly devoid of facts upon which a claim for relief can be based." 663 F.2d at 723. Briscoe supports the proposition included in the 20 November 1992 Opinion; reliance on Briscoe does not provide a basis for reconsideration.
2. Section 1981
Bermingham asserts the 20 November 1992 Opinion, at 30-36, erroneously considered whether the 1991 Civil Rights Act should be applied retroactively. Bermingham 12I Brief at 4-5. However, in the opposition to the motion to dismiss, Bermingham argued that the 1991 Civil Rights Act applied retroactively. Bermingham 12(b)(6) Opposition Brief at 19 n. 18. In response to the argument raised by Bermingham, the 20 November 1992 Opinion considered and rejected retroactive application of the amendments. 20 November 1992 Opinion at 30-36.
Bermingham asserts that because discriminatory conduct occurred after the enactment of the amendments, he states a cause of action under the 1991 Civil Rights Act. Bermingham 12I Brief at 5. He refers to paragraph 214 of the Amended Complaint which described Sony Corporation's offer to transfer Bermingham to California (the "Transfer Offer").
This argument was, however, raised by Bermingham in opposition to the Motion to Dismiss and considered in the 20 November 1992 Opinion. 20 November 1992 Opinion at 41. It was specifically considered whether the Transfer Offer "constitute[d] a distinct discriminatory act apart from the conduct of Takagi" for the purposes of the 1991 Civil Rights Act. Id. at 40. The 20 November 1992 Opinion, however, explained that the Transfer Offer appears to be only an allegation of a ratification by Sony Corporation of Takagi's earlier allegedly racially motivated conduct.
There are no allegations that Sony Corporation made the Transfer Offer because of racial animus against caucasians in general or Bermingham in particular or that it later refused to consummate the Transfer Offer because of racial animus against caucasians in general or Bermingham in particular. There are also no allegations that Bermingham accepted the transfer and was subsequently terminated because of racial animus against caucasians in general or Bermingham in particular.
Id. at 41. Because applicability of the 1991 Civil Rights Act to the Transfer Offer was fully considered, Bermingham has failed to establish this as a basis for reconsideration.
Bermingham asserts the court erred by considering the allegations in the context of a continuing violation theory because "each act by the Defendants constitute[s] both an independent discriminatory act and a furtherance of a plan premised upon racial animus."
Bermingham 12I Brief at 6. Bermingham also asserts the 20 November 1992 Opinion erred by relying on cases which discussed continuing violations in the context of the avoidance of the statute of limitations. Bermingham 12I Brief at 6.
Bermingham, however, argued in opposition to the Motion to Dismiss that "while the doctrine of 'continuing violation' usually arises in the statute of limitations context, not here applicable, the theory is equally applicable in bridging the gap between [section] 1981 (post-Patterson) and as amended." Bermingham 12(b)(6) Opposition Brief at 16 n. 16. The statute of limitation cases relied upon in the 20 November 1992 Opinion provide analogous circumstances and analysis to the theory of continuing violation espoused. The 20 November 1992 Opinion addressed the adequacy of the allegations under a theory of continuing violation, 20 November 1992 Opinion at 36-42, and as independently discriminatory conduct, both pre and post-amendment. 20 November 1992 Opinion at 42-51.
Bermingham contends the 20 November 1992 Opinion erroneously relied upon Miller v. Aluminum Company of America, 679 F. Supp. 495 (W.D.Pa.), aff'd, 856 F.2d 184 (3d Cir. 1988), and Churchill v. International Business Machines, Inc., Nat. Service Div., 759 F. Supp. 1089, 1106 (D.N.J. 1991), because they involved motions for summary judgment. In addition, Bermingham argues Churchill is inapplicable because he did not rely on a theory of constructive discharge, but was "terminated and . . . offered a new but drastically different contractual relationship based upon racial discrimination." Bermingham 12I Brief at 7 (emphasis Bermingham's).
Although Bermingham presently denies that he relied on a theory of constructive discharge, the Amended Complaint contained allegations of constructive termination. Amended Complaint, P 111 ("[Defendants] actually and constructively terminated from his position of authority. . . ."); see also PP 175-76. The 20 November 1992 Opinion properly referred to Miller and Churchill, in a footnote in the statement of facts, to illustrate factual situations which constitute constructive discharge. 20 November 1992 Opinion at 16 n. 18. However, as discussed in the 20 November 1992 Opinion, even if Bermingham had been constructively terminated, the change in position occurred prior to enactment of the 1991 Civil Rights Act and constitutes post-formation conduct not actionable under Section 1981. 20 November 1992 Opinion 45-46. Bermingham argues the 20 November 1992 Opinion erred by stating: "Bermingham does not allege that he has repeatedly applied for new positions and been denied." Bermingham 12I Brief at 8 (quoting 20 November 1992 Opinion at 38). Bermingham asserts that his day to day requests for reinstatement are evidence of a continuing violation, as discussed in Lewis v. Local Union no. 100 of Laborers' Intern. Union, 750 F.2d 1368, 1378-79 (7th Cir. 1984). Bermingham 12I Brief at 8.
Lewis was discussed in the Bermingham 12(b)(6) Opposition Brief at 17-18 and the Defendants' 12(b)(6) Reply Brief at 8 n. 9, and considered in preparation of the 20 November 1992 Opinion. Lewis involved a labor relations claim where the plaintiff was deprived of employment as a result of the actions of the union. Bermingham, however, alleged employment discrimination based on his employer's failure to restore him to his former position. Because Lewis should be distinguished on its facts, the case was not referred to in the 20 November 1992 Opinion.
The 20 November 1992 Opinion, furthermore, considered the allegations regarding the Defendants' refusal to restore Bermingham's authority. 20 November 1992 Opinion at 41. At all times, Bermingham remained employed by the Sony Corporation. Because "mere continuity of employment" does not constitute a continuing violation, Delaware State College v. Ricks, 449 U.S. 250, 257 (1980), Bermingham failed to state a claim under the 1991 Civil Rights Act under a theory of continuing violation.
Bermingham also objects to the observation in the 20 November 1992 Opinion that "Bermingham does not allege . . . that any racially biased statements were made or that such documents exist." Bermingham 12I Brief at 8; 20 November 1992 Opinion at 24. He claims: "This is not true." Bermingham 12I Brief at 8. Bermingham, however, fails to point to any allegations in the Amended Complaint to refute the statement. Instead, he refers to the statements by other caucasian managers, included in the 20 November 1992 Opinion at 20-21, which indicate concern over his situation. Although Bermingham need not allege all evidentiary facts that support his claim, he "is required to allege facts to support his claim and the absence of any racial comments or documents is another omission which further demonstrates the lack of viability of Bermingham's claim."
12I Opposition Brief at 10.
Bermingham disputes the characterization of his change in position as a "lateral movement" or "possible demotion." Bermingham 12I Brief at 9. Instead Bermingham asserts the mandatory favorable inference is that he was terminated and presented an offer to enter a new contractual relationship actionable under Section 1981. Id. The 20 November 1992 Opinion carefully considered these arguments when originally presented by Bermingham in opposition to the Motion to Dismiss. 20 November 1992 Opinion at 47-51. Although Bermingham objects to the Court's reliance on Mason v. General Foods Corp., No. 90-392, 1991 U.S.Dist. LEXIS 17017*6-7 (D.Del. 15 Nov. 1991) and Frazier v. First Union National Bank, 747 F. Supp. 1540, 1548 (W.D.N.C. 1990), for the proposition that a demotion constitutes post-contract formation conduct not actionable under section 1981, he does not refer to any contradictory controlling caselaw. Bermingham has failed to establish this as a basis for reconsideration.
Bermingham contends the 20 November 1992 Opinion overlooked Perry v. Command Performance, 913 F.2d 99 (3d Cir. 1990). Bermingham 12I Brief at 10. Bermingham argued the applicability of Perry in opposition to the motion to dismiss, Bermingham 12(b)(6) Opposition Brief at 7; Defendants distinguished it in their reply brief. Defendants' 12(b)(6) Reply Brief at 5. Perry was considered in preparation of the 20 November 1992 Opinion. It was not referred to because it was inapplicable; it is not an employment discrimination case and does not involve claims of promotion or demotion.
In this motion, Bermingham refers to the same state court cases, dealing with the creation of a new contract under common law contract principles, raised in opposition to the motion to dismiss. Bermingham 12I Brief at 10-11; Bermingham 12(b)(6) Opposition Brief at 4-6. Those cases are, however, inapplicable. The standard for creating a new contract under state common law is not compatible to an analysis of post contract formation conduct under Section 1981. Under state law contact, acceptance by an employee of any terms modified by the employer creates a new and different contract. Bermingham 12(b)(6) Opposition Brief at 5 (quoting Summers v. Ralston Purina Co., 260 Ala. 166, 69 So.2d 858, 862 (Ala. 1954)). However, the law in the Third Circuit considering Section 1981 violations requires fundamental changes in rights, duties, responsibilities and compensation in order to rise to the level of a new contractual relationship between employer and employee. 20 November 1992 Opinion at 48-50; Bennun v. Rutgers State University, 941 F.2d 154, 168 (3d Cir. 1991); James v. International Business Machines Corp., 737 F. Supp. 1420, 1424 (E.D.Pa. 1990). The allegations regarding rights, duties, responsibilities and compensation were carefully considered; it was concluded Bermingham had failed to state a claim for termination and refusal to enter a new contract actionable under Section 1981. Disagreement with this analysis, without providing facts or controlling decisions
which were overlooked, fails to establish a basis for reconsideration.
B. Leave to Amend
In the alternative, Bermingham seeks leave to file a second amended complaint. Bermingham 12I Brief at 13. He contends:
It is unfair for the Court to state that [Bermingham] has not sought to amend his [Amended] Complaint to incorporate matters contained in the "Statement of Facts" of [the Bermingham 12(b)(6) Opposition Brief] for the Court stated unequivocally during oral argument that it would not consider a motion to amend the pleadings, chastised counsel for including a statement of Facts,
and then assumed for the purposes of its decision that no further facts exist as a result of [Bermingham's] failure to seek leave to amend.
Id. In point of fact, Bermingham sought leave to file a second amended complaint only after the 20 November 1992 Opinion was issued.
At oral argument, on 24 July 1992, it was recognized that Bermingham had already amended the complaint once and would not be given yet another opportunity to amend. Tr. at 3. Counsel for Bermingham acquiesced and responded: "I understand that." Id. At the time the Amended Complaint had been filed for more than four months.
Bermingham contends leave to file a second amended complaint should be routinely granted pursuant to Fed. R. Civ. Pro. 15(a), even after judgment of dismissal has been entered. Bermingham 12I Brief at 13. In this regard, the Supreme Court stated:
The grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962).
This is not a situation where there was an outright refusal to grant leave to file an amended complaint. The basis for the denial is obvious. The initial Complaint was not a simple Rule 8 notice pleading. The Complaint in this matter was filed on 5 March 1992 and consisted of fifty-six pages and two hundred and thirty-three paragraphs. On 16 March 1992, Bermingham filed an even more extensive Amended Complaint which consisted of sixty-two pages and two hundred and sixty-one paragraphs.
Bermingham had many opportunities to seek to file another amended complaint. More than two months after the Amended Complaint was filed, Bermingham was served with the Defendants' comprehensive Motion to Dismiss and Defendants' 12(b)(6) Brief on 22 May 1992.
After receiving the Motion to Dismiss and its supporting briefs on 22 May 1992 and after an opportunity to research and consider the arguments raised by Defendants, Bermingham did not seek leave to further amend his Amended Complaint. On the contrary, after a full opportunity to deliberate with regard to the Motion to Dismiss, Bermingham chose to file an opposition brief. Bermingham's opposition brief was served on Defendants on 18 June 1992.
Again, after serving the Bermingham 12(b)(6) Opposition Brief on IS June 1992 and before receiving the Defendants' 12(b)(6) Reply Brief on 1 July 1992, Bermingham never sought to file a second amended complaint. During the period between Bermingham's receipt of the Reply Brief and oral argument on 24 July 1992, Bermingham never sought leave to file a second amended complaint.
As mentioned, at oral argument, it was recognized Bermingham already had the opportunity to and did in fact file an amended complaint. Counsel was further advised Bermingham would not be given yet another opportunity to amend and, as stated, counsel for Bermingham acquiesced in this comment. Following oral argument and for the four-month period between the oral argument and the issuance of the 20 November 1992 Opinion, Bermingham never sought leave to file a second amended complaint.
At no point during the eight months between the filing of the Amended Complaint and the issuance of the 20 November 1992 Opinion did Bermingham avail himself of the opportunity to seek leave to further amend the Amended Complaint. Instead, despite the shortcomings raised by the Motion to Dismiss, Bermingham chose to stand on the Amended Complaint.
The policy advocated by Bermingham suggests a process under Rule 12(b)(6) that could go on indefinitely.
In effect, Bermingham advocates that he be permitted to file another amended complaint each time a Rule 12(b)(6) motion is successful. Bermingham had a full and fair opportunity to set forth his cause of action. He has not stated a Federal cause of action. Significantly, supplemental jurisdiction was not exercised; the state causes of action were not addressed. Bermingham has the opportunity to pursue these matters in state court.
For the reasons set forth above, Bermingham's motion for reconsideration, or in the alternative, for leave to file a second amended complaint, is denied.
Dated: 19 March 1993