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ROUSE v. PLANTIER

February 9, 1998

DARRYL ROUSE, CHARLES BROOKS, STEPHEN JANKOWSKI, JULIO BAEZ, and ROBERT KAMMERER, on behalf of a class of themselves and others similarly situated, Plaintiffs,
v.
WILLIAM PLANTIER, WILLIAM H. FAUVER, DR. ROBERT CARDINALE, DR. NARSIMHA REDDY, ELAINE ALLEN, R.N., JOHN DOE, and JANE ROE, Defendants.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Following this Court's decision granting in part and denying in part Defendants' motion for summary judgment, see Rouse v. Plantier, 987 F. Supp. 302, 1997 U.S. Dist. LEXIS 19444, 1997 WL 757548 (D.N.J. 1997) (hereinafter Rouse III), Plaintiffs, representatives of a class of insulin-dependent diabetics incarcerated at the Adult Treatment and Diagnostic Center ("ADTC") in Avenel, New Jersey, and Defendants, doctors, a nurse, and prison officials with responsibilities at ADTC, have cross-moved for reargument of certain aspects of the Court's Opinion and Order. Defendants have moved for reargument on the question of qualified immunity, claiming that the rights asserted by Plaintiffs were not "clearly established" and, therefore, that defendants could not be expected to conform their behavior to that standard, thereby entitling them to the defense of qualified immunity. Plaintiffs have moved for reargument with respect to their claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., arguing that their claim for injunctive relief survives the grant of a motion for summary judgment on the question of whether Defendants are entitled qualified immunity. Therefore, Plaintiffs argue, the Court should consider, and deny, Defendants' motion for summary judgment as to the ADA claim, as originally argued in their opposition to Defendants' motion for summary judgment.

 Finally, Defendants argue, in the alternative, that the denial of Defendants' motion for summary judgment on qualified immunity is immediately appealable as a "final decision[]" within the meaning of 28 U.S.C. § 1291. In response, Plaintiffs appear not to dispute the appealability of the Court's decision, although they note, without elaboration, that the right to appeal is "questionable." Rather, Plaintiffs assert that the appeal should be certified as frivolous, thereby allowing the trial to continue, without regard to the transfer of jurisdiction to the Court of Appeals upon the filing of a notice of appeal. Plaintiffs also argue that Defendants waived the defense of qualified immunity.

 For the reasons set forth below, Defendants' motion for reargument will be denied and Plaintiffs' motion for reargument will be granted in part. Defendants' motion for summary judgment as to Plaintiffs' claim under the ADA will be denied. Also, Plaintiffs' motion for certification of Defendants' appeal as frivolous will be denied. Finally, the Court is unable to conclude that the defense of qualified immunity has been waived and, to this extent, Plaintiffs' motion for reargument will be denied.

 I. Facts and Procedural History

 The facts and procedural history of this action, now pending for nearly seven and a half years, are set forth in detail in the Court's earlier Opinion. Rouse III, 987 F. Supp. 302, 1997 U.S. Dist. LEXIS 19444, 1997 WL 757548, *1-3. In that Opinion and Order, I denied Defendants' motion for summary judgment on liability for Plaintiffs' Eighth Amendment claims as to Defendants, William Plantier ("Plantier"), Dr. Robert Cardinale ("Dr. Cardinale"), Dr. Narsimha Reddy ("Dr. Reddy"), and Elaine Allen, R.N. ("Nurse Allen"), and granted Defendants' motion for summary judgment on liability for Plaintiffs' Eighth Amendment claims as to Defendant, William H. Fauver ("Fauver"). I also denied Defendants' motion for summary judgment based upon the defense of qualified immunity on Plaintiffs' Eighth Amendment claims as to Defendants, Plantier, Dr. Reddy, Dr. Cardinale, and Nurse Allen, and dismissed the defense as moot as to Defendant, Fauver. Finally, I granted Defendants' motion for summary judgment based upon the defense of qualified immunity on Plaintiffs' claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), as to all Defendants and, without considering the merits, dismissed as moot Defendants' motion for summary judgment as to liability on Plaintiffs' claims under the ADA as to all Defendants. See Rouse III, 1997 WL 757548, *16 & passim.

 In that Opinion, I also noted the problems that the named Plaintiffs may encounter in serving as class representatives. Id. at *1 n.2, *15. These problems are compounded by the suicide on December 29, 1997, of Darryl Rouse, one of the class representatives and the individual who began the prosecution of this action back in September, 1990.

 The Court may exercise jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3-4).

 II. Standard of Review on Motion for Reargument

 Plaintiffs' and Defendants' cross-motions for "reconsideration," which I shall treat as motions for reargument, are governed by Rule 7.1(g) of the Local Civil Rules for the District of New Jersey, formerly General Rule 12I. Rule 7.1(g) provides that a party may, within ten days of the entry of an order adverse to that party, move for reargument, upon a showing that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision. See, e.g., Damiano v. Sony Music Entertainment, Inc., 975 F. Supp. 623, 1996 WL 912174, *10 (D.N.J. 1996).

 The word "overlooked" is the operative term in the Rule. See Allyn Z. Lite, New Jersey Federal Practice Rules 86 (1996 & Supp. 1997). Mere disagreement with a decision of the district court should normally be raised through the appellate process and is inappropriate on a motion for reargument. See Bermingham v. Sony Corp. of N. Am., Inc., 820 F. Supp. 834, 859 n.8 (D.N.J. 1992), aff'd mem., 37 F.3d 1485 (3d Cir. 1994); G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990) ("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.'") (citation omitted); Florham Park Chevron, Inc. v. Chevron, U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988). Only where matters were overlooked and which, if considered by the Court, might reasonably have resulted in a different conclusion, will the Court entertain such a motion. See, e.g., Pittston Co. v. Sedgwick James of New York, Inc., 971 F. Supp. 915 (D.N.J. 1997); Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991); Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987).

 A motion for reargument "is an extremely limited procedural vehicle" and may not be used to expand the record before the court. Resorts Int'l, Inc. v. Greate Bay Hotel & Casino, 830 F. Supp. 826, 831 (D.N.J. 1992) (Gerry, J.) (emphasis added). Finally, relief under the rule is granted "very sparingly." Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986).

 While the rule requires that matters have been "overlooked" in order to grant a motion for reargument, unfortunately, even where the Judges of this District have explicitly considered a party's argument or explicitly considered a certain fact, motions for reargument have become quite the matter of course within the District. Not only are such motions not a substitute for the appellate process, such motions are not an opportunity to argue what could have been, but was not, argued in the original set of moving and responsive papers. Similarly, such motions are not an opportunity for the parties to avail themselves of additional briefing, that is, to circumvent the Local Rules regarding the size and length of briefs. See, e.g., Rule 7.2(b) of the Local Civil Rules for the District of New Jersey. In short, the initial motion is the "main event," not a "tryout on the road" to a motion for reargument. Cf. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895, 111 S. Ct. 2631, 115 L. Ed. 2d 764 (1991) (Scalia, J., concurring in part and concurring in judgment) (citing Wainwright v. Sykes, 433 U.S. 72, 90, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), and noting that "the very word 'review' presupposes that a litigant's arguments have been raised and considered in the tribunal of first instance.").

 III. Discussion

 A. Qualified Immunity

 Defendants have moved for reargument on the question of qualified immunity, claiming that they "could not have been aware . . . that the care that was provided was somehow constitutionally deficient." Brief in Support of State Defendants' Motion for Reconsideration 2 (dated Jan. 12, 1998) (hereinafter Defendants' Reconsideration Brief). Their brief in support of their motion for reargument implies that this was the gist of their original argument, the suggestion being that they are now providing only a summary of the original brief. The original brief, however, addressed the issue of whether the rights asserted by Plaintiffs were "clearly established" in no more depth than a one-sentence assertion at the end of several paragraphs of a summary of the basic law of qualified immunity. See Defendants' Amended Brief in Support of Defendants' Motion for Summary Judgment 31 (dated Oct. 11, 1997 ) (hereinafter Defendants' Brief). Indeed, except for two additional sentences, even the over-sized brief which Magistrate Judge Cavanaugh refused to allow Defendants to file, see Rouse, et al. v. Plantier, et al., Civil Action No. 90-3511, Order (D.N.J. Sept. 19, 1997) (Cavanaugh, M.J.), did not discuss the issue of qualified immunity in any more depth than the one-page argument in the Amended Brief, almost all of which was a basic summary of current law. Compare Brief in Support of Defendants' Motion for Summary Judgment 52-53 (dated August 15, 1997) with Defendants' Brief at 31; see also Defendants' Reply Brief in Support ...


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