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TISCHIO v. BONTEX

July 23, 1998

PATRICIA S. TISCHIO, Plaintiff,
v.
BONTEX, INC., JAMES C. KOSTELNI, and DOLORES S. KOSTELNI, Defendants.



The opinion of the court was delivered by: LECHNER

OPINION

 LECHNER, District Judge

 Currently pending is a timely motion for reargument (the "Motion for Reargument") filed by the plaintiff, Patricia S. Tischio ("Patricia Tischio"), pursuant to Rule 59(e) and/or Rule 60(b) of the Federal Rules of Civil Procedure and Local Civil Rule 7.1(g). The Motion for Reargument seeks to vacate the 29 June 1998 order that transferred the action (the "Order of Transfer") to the United States District Court for the Western District of Virginia (the "Western District of Virginia"), pursuant to 28 U.S.C. § 1404(a) ("Section 1404(a)"). In the alternative, the Motion for Reargument seeks a stay of the Order of Transfer pending appeal and certification of the Order of Transfer pursuant to 28 U.S.C. § 1292(b) ("Section 1292(b)"). *fn1"

 For the reasons set forth below, the Motion for Reargument is denied in its entirety.

 Background

 A. Procedural History

 On 11 March 1998, Patricia Tischio filed a complaint (the "Complaint") against the Defendants in the Superior Court of the State of New Jersey. The Complaint asserts claims for, among other things, breach of an alleged lifetime employment contract, tortious interference with contract and discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. See Complaint.

 On 13 April 1998, the Defendants removed the action to this court by filing a notice of removal (the "Notice of Removal"). See Notice of Removal. On 15 April 1998, Bontex filed an amended notice of removal (the "Amended Notice of Removal"). See Amended Notice of Removal.

 On 5 May 1998, Bontex filed an answer (the "Bontex Answer") to the Complaint. See Bontex Answer. On the same day, James Kostelni filed an answer (the "James Kostelni Answer") to the Complaint. See James Kostelni Answer. On 6 May 1998, Dolores Kostelni filed an answer (the "Dolores Kostelni Answer") to the Complaint and raised the defense of lack of personal jurisdiction. See Dolores Kostelni Answer.

 At a conference on 15 April 1995, the Defendants indicated their intent to file a motion to transfer the action to the Western District of Virginia (the "Motion to Transfer"). A month later, by letter, dated 11 May 1998, (the "Patricia Tischio 11 May 1998 Letter") Patricia Tischio advised that the parties had agreed to a briefing schedule, apparently comfortable to all parties, in connection with the Motion to Transfer. See Patricia Tischio 11 May 1998 Letter. She further advised that all briefs would be submitted by 19 June 1998. Id.

 After the Motion to Transfer had been fully briefed by the parties, *fn2" Patricia Tischio submitted a letter, dated 22 June 1998, (the "Patricia Tischio 22 June 1998 Letter") seeking permission to file a sur-reply brief in further opposition to the Motion to Transfer. Id. The Patricia Tischio 22 June 1998 Letter is significant because of what it says and what it does not say.

 
Plaintiff hereby requests permission to submit a short sur-reply in connection with said motion [the Motion to Transfer]. The reason for this request is that Defendants, in their Reply Memorandum of Law, raised new issues as to which Plaintiff should be afforded an opportunity to respond. First, Defendants raised, for the first time, the argument that this Court lacks personal jurisdiction over Defendant Dolores Kostelni. Second, Defendants raise arguments relating to the admissibility and relevance of the testimony of Plaintiff's non-party witnesses.
 
Plaintiff respectfully requests leave to file a short letter brief in reply to Defendants' newly-raised arguments.

 Patricia Tischio 22 June 1992 Letter (emphasis added).

 The Patricia Tischio 22 June 1992 Letter clearly seeks leave to file "a short letter brief" to respond to so-called newly raised arguments. These arguments are legal in nature: jurisdiction over Dolores Kostelni and admissibility and relevance of certain testimony of non-party witnesses. All that was sought was the opportunity to brief these issues. No request was made to submit additional facts; no suggestion was made that additional facts were necessary; no suggestion was made that the court did not have all the facts necessary to decide the motion.

 Because leave to submit additional data or detail was not sought and because additional briefing was not necessary, the request to submit a "short letter brief" in reply to these so-called newly raised issues was denied. See letter from the Court, dated 25 June 1998.

 The Patricia Tischio 22 June 1998 Letter is also significant because it undercuts many of the arguments made by Patricia Tischio in the Motion for Reargument. For example, the last sentence of paragraph six of her affidavit submitted in support of the Motion for Reargument states: "I attempted, through counsel, to convey these facts to the Court in reply to Defendant's responsive motion filings, but was precluded." Patricia Tischio Supplemental Aff. at P 6. As indicated above, there was no request, proffer or even suggestion that Patricia Tischio was attempting to, or needed to, or wanted to, offer additional data or detail in opposition to the Motion to Transfer.

 As described more fully below, although Patricia Tischio now submits additional data and detail in support of the Motion for Reargument, these data or detail were not before the court for consideration with regard to the Motion to Transfer. Moreover, none of these data constitutes "new evidence" to justify reconsideration pursuant to either Rule 59(e) or 60(b) of the Federal Rules of Civil Procedure. In addition, no explanation was offered to explain why these data and detail were withheld from the court when the Motion to Transfer was considered.

 On 29 June 1998, a forty-seven page letter-opinion (the "29 June 1998 Letter-Opinion") and the Order of Transfer were issued granting the Motion to Transfer and transferring the action to the Western District of Virginia pursuant to Section 1404(a). *fn3" After reviewing the 29 June 1998 Letter Opinion, Patricia Tischio now attempts to forward additional data and detail as a basis to suggest this court failed to consider certain facts when issuing the Order of Transfer.

 In paragraph two of her supplemental affidavit, Patricia Tischio states in part "a number of crucial facts were, I believe, not before the Court or were overlooked." Patricia Tischio Supplemental Aff. at P 2. Moreover, in her supplemental brief, Patricia Tischio argues "the Court overlooked the facts pertaining to Dolores' (sic) [Kostelni's] New Jersey contacts and the fact that Defendant-Bontex pays plaintiff's travel expenses when plaintiff travels to Virginia for Board Meetings. These facts are set forth in affidavit of Patricia Surmonte Tischio dated July 9, 1998, submitted herewith." Supplemental Brief at 3. As these two statements indicate, these data and detail were not previously before the court. This is true with much of the additional data and detail which were submitted in the affidavits in support of the Motion for Reargument. See Supplemental Brief at 5. ("Their [the witnesses'] proposed testimony, now before the Court in the form of Affidavits appended to Plaintiff's more recent Affidavit, makes clear....") (emphasis added).

 As indicated previously, the argument that Patricia Tischio was blocked in her attempt to submit additional data or detail is simply wrong. See Affidavit of Melissa Feldman Michalsky at P 3 ("Plaintiff was deprived of an opportunity to respond") and Supplemental Brief at 7 ("Plaintiff had no opportunity to submit factual material regarding Dolores' (sic) [Kostelni's] contacts with this form.").

 As explained, at no time did Patricia Tischio seek to file affidavits or other appropriate documentation containing additional data or detail. She did not suggest she had in her possession additional data, detail or documents necessary for the disposition of the Motion to Transfer or that she was prevented from discovering or offering such data or detail in opposition to the Motion to Transfer. See Patricia Tischio 22 June 1998 Letter (requesting opportunity to submit "a short letter brief ...


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