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BERMINGHAM v. SONY CORP. OF AMERICA

March 19, 1993

JOHN BERMINGHAM, Plaintiff,
v.
SONY CORPORATION OF AMERICA, INC., SONY U.S.A., INC., SONY CORPORATION and SHINICHI TAKAGI, Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This employment discrimination action was brought by plaintiff John Bermingham ("Bermingham") against Sony Corporation of America, Inc. ("Sony America"), Sony U.S.A., Inc. ("Sony USA"), Sony Corporation ("Sony Japan") (collectively, the "Sony Corporation") and Shinichi Takagi ("Takagi") (collectively, the "Defendants"), pursuant to section 1981 ("Section 1981") of the Civil Rights Act of 1866 (the "Civil Rights Act"), as amended, *fn1" 42 U.S.C. § 1981 et seq., 42 U.S.C. § 2000e et seq., as amended ("Title VII"), the New Jersey Law Against Discrimination (the "NJLAD"), N.J.S.A. 10:5-1 et seq., and New Jersey common law. Jurisdiction appears to be appropriate pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. A complaint comprising some fifty-six pages and two hundred and thirty-three paragraphs was filed on 5 March 1991 (the "Complaint"). On 16 March 1991, Bermingham filed an amended complaint comprising some sixty-two pages and two hundred and sixty-one paragraphs (the "Amended Complaint").

 On 2 July 1992, Defendants filed a motion to dismiss the Amended Complaint pursuant to Fed. R. Civ. Pro. 12(b)(6) (the "Motion to Dismiss"). *fn2" By letter-opinion and order, dated 20 November 1992 (the "20 November 1992 Opinion"), the motion to dismiss was granted. Currently before the court is the motion for reconsideration of the 20 November 1992 Opinion, filed nunc pro tunc on 28 December 1992, or in the alternative, for leave to file a second amended complaint. *fn3" For the reasons set forth below, Bermingham's motion for reconsideration, or in the alternative, for leave to file a second amended complaint, is denied.

 Discussion

 A. Motion for Reconsideration Standard of Review

 Rule 59(e) of the Federal Rules of Civil Procedure permits a plaintiff to move to alter or amend a judgment within ten days of entry of an order. Fed.R.Civ.P. 59(e). Rule 12I of the General Rules of the District Court of the District of New Jersey ("General Rule 12I") requires that the moving party "set forth concisely the matters or controlling decisions which counsel believes the court has overlooked." General Rule 12I.

 A motion for reconsideration or to alter or amend a judgment may be made for one of three reasons: "(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." Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp. 1406, 1419 (D.Md. 1991) (citing Natural Resources Defense Council v. U.S. E.P.A., 705 F. Supp. 698, 702 (D.D.C.), vacated on other grounds, 707 F. Supp. 3 (D.D.C. 1989)); see also Macario v. Pratt & Whitney Canada, Inc., No. 90-3906, 1991 U.S. Dist. LEXIS 7429, *4-5 (E.D.Pa. 4 June 1991).

 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 ...


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