United States District Court, D. New Jersey
October 3, 2005.
SAMSON BROWN, et al. Plaintiffs,
ESMOR CORRECTIONAL SERVICES, INC., et al. Defendants.
The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge
On August 10, 2005 the court entered an opinion and order
approving the settlement of this class action as fair, reasonable
and adequate, approving a Plan of Allocation and allowing
attorneys' fees and expenses. On August 23, 2005 counsel for
seven persons (the "DaSilva Plaintiffs") who had been
plaintiffs in a previously dismissed action (the "DaSilva
Action")*fn1 manually filed a Motion for Reconsideration of
the Settlement Order. For the reasons set forth below the motion
will be denied.
The instant action is a class action instituted by plaintiffs,
undocumented aliens who were detainees at a facility (the
"Facility") which defendant Esmor Correctional Services, Inc.
("Esmor") operated under contract with the Immigration and
Naturalization Service in Elizabeth, New Jersey. Two related
actions against Esmor and others were filed the DaSilva
Action and an action that will be referred to as the "Jama
Action."*fn2 The three actions were consolidated for
discovery purposes. During the course of the proceedings the
question arose whether the DaSilva Plaintiffs and the Jama
Plaintiffs had effectively opted-out of the instant action.
Failure of the DaSilva Plaintiffs and the Jama Plaintiffs
to opt-out of this action in accordance with a March 9, 1999
order resulted in extensive proceedings before two magistrate
judges and this court in which Esmor and the Plaintiffs in this
action challenged the effectiveness of the purported opt-outs. On
June 10, 2003 the court entered an order extending the time
within which the plaintiffs in those cases could opt-out. Nine
Jama Plaintiffs filed opt-outs within the extended deadline; none of the DaSilva Plaintiffs did so.
Because the DaSilva Plaintiffs had not opted-out of the class,
they became members of the class and the court dismissed the
DaSilva Action. As class members the DaSilva Plaintiffs are
entitled to share in the Settlement Fund if they file timely
proofs of claim. The nine Jama Plaintiffs were not members of
the class and continue to pursue their independent
After merits discovery in this action was substantially
completed and after Esmor's motions for summary judgment were
briefed, argued and decided, Esmor's counsel and class counsel
entered into settlement discussions and eventually arrived at a
settlement. On May 24, 2005 the court preliminarily approved the
settlement of this action. Prior to June 24, 2005, class counsel
mailed notifications to all class members, including counsel for
the DaSilva Plaintiffs, informing them of the settlement terms,
the August 1, 2005 objection deadline, and the August 10, 2005
fairness hearing. Class counsel posted this information on its
internet website and published it in four ethnic newspapers.
On August 1, 2005 Jama Plaintiffs filed a letter requesting
intervention and amicus participation along with objections to
the settlement. The objections were directed to the provision of
the Settlement Agreement in which Esmor undertook not to settle
the Jama Action for amounts more favorable to the Jama
Plaintiffs than the amounts paid to the class plaintiffs. The Jama Plaintiffs did not challenge the adequacy or fairness
of the settlement in this action.*fn4
On August 2, 2005 counsel for the DaSilva Plaintiffs filed
objections. These objections and the several misconceptions
contained therein are addressed in the court's August 10, 2005
opinion. The principal objection was "[t]he DaSilva Plaintiffs
also request that this Court decline to approve the settlement
agreement as it is empowered to do under Fed.R.Civ.P.
23(d)(1)(C) upon a finding that the proposed settlement agreement
is not `fair, reasonable, and adequate.'" Voluminous material was
in the record supporting the fairness, reasonableness and
adequacy of the settlement. The only argument that the DaSilva
Plaintiffs advanced in support of their position was their
"[adoption] in [their] entirety the legal arguments and
submissions of the Jama Plaintiffs as if fully set forth
herein." As the court's August 10, 2005 opinion noted: "The
Jama Plaintiffs, however, have advanced no criticism of the
fairness, reasonableness and adequacy of the Settlement Agreement
insofar as it relates to the Brown Action plaintiffs (included
among whom are the DaSilva plaintiffs). Therefore the DaSilva
plaintiffs did not advance in their papers a single ground for
their contention that the Settlement Agreement is not fair,
reasonable and adequate."
At the fairness hearing the DaSilva Plaintiffs' counsel
argued with considerable passion that her clients were people of
substance and entitled to vastly greater sums of money than they
were likely to receive under the Settlement Agreement. She placed
nothing in the record about the circumstances of her clients and
she addressed none of the many factors that must be considered in determining if a settlement is fair, reasonable and
The court reviewed all the papers submitted in connection with
the fairness hearing. It had the benefit of years of association
with this case and the related cases during the course of
discovery, opt-out motions, motions to dismiss and motions for
summary judgment. It concluded that the settlement is fair,
reasonable and adequate and set forth its reasons in its August
10, 2005 opinion.
II. The Motion for Reconsideration
Counsel for the DaSilva Plaintiffs move for reconsideration
of the August 10, 2005 opinion and order, asking that the order
approving the Settlement Agreement be vacated.
It is evident that the DaSilva Plaintiffs have not accepted
the fact that the court has held that they are members of the
class and not parties pursuing an independent law suit. For
example they state "[t]he DaSilva Plaintiffs have always
maintained their separate action and were unjustifiably tossed
into the class action" (Mendiola August 22, 2005 letter at 2).
Unless and until the Court of Appeals reverses this court in this
regard, the DaSilva Plaintiffs have been and are members of the
class. If the Court of Appeals reverses this court's rulings, the
DaSilva Plaintiffs will be free to litigate their own case and
will not be bound by the terms of the Settlement Agreement.
The DaSilva Plaintiffs object to the fact that the Settlement
Agreement was negotiated by class counsel and that their counsel
was not present during settlement discussions. This objection was
not raised before or at the fairness hearing; in any event, that
is the role of class counsel, and if members of the class
believed that the settlement was inadequate they had ample
opportunity to oppose it. The DaSilva Plaintiffs appear to be rearguing the opt-out
motions, contending that "[b]y its own admission and
certification, dated July 19, 1999, then Brown counsel stated
`that they received the DaSilva Plaintiffs' opt out forms.'" As
noted above, if the Court of Appeals accepts this contention the
DaSilva Plaintiffs will be unaffected by the Settlement Agreement
in this action and have no standing to object to it.
Counsel's letter brief contains a series of generalized
statements to support the contention that the Settlement
Agreement should not have been approved, e.g., i) "This Court
approved a settlement, which on its face runs afoul to (sic)
existing case law, and in contrevene (sic) to Rule 23;" ii) "In
order for the determination that the settlement is fair,
reasonable, and adequate to survive appellate review, the
district court must show it has explored comprehensively all
relevant factors. Malchman 106 F.3d at 434. DaSilva Plaintiffs'
(sic) submit that this was not done in the instant litigation. In
fact no relevant factors were explored;" iii) "DaSilva
plaintiffs' (sic) submit that the settlement agreement is unfair
and harmful in recovery." (Mendiola August 22, 2005 letter at 4
and 5). While the DaSilva Plaintiffs may not agree with the
conclusion contained in the court's August 10, 2005 opinion, the
opinion demonstrates that "relevant factors" were at least
explored. Further, the letter brief fails to elucidate the manner
in which the settlement "on its face runs afoul to (sic) existing
Esmor and the Brown Plaintiffs contend that the court lacks
jurisdiction to hear the motion for reconsideration. They note
that the motion was filed manually on August 23, 2005 (not
electronically as required by Local Civ. Rule 5.2), and that it
was not served on opposing counsel either by fax or regular mail,
as certified by counsel; rather opposing counsel did not receive notice of the motion until August 25 through an
electronic notice from the Clerk of the Court. The DaSilva
Plaintiffs have not challenged these facts.
Under Local Civil Rule 7.1(i) a motion for reconsideration
"shall be served and filed within 10 business days after entry of
the order or judgment on the original motion by the judge . . ."
Even if the Clerk's electronic notice be deemed effective
service, it was sent on August 25, 2005 after the 10-day
deadline. Chen v. Rochford, No. Slip. Op., 2005 WL 1950865 (3d
Cir. 2005); c.f., Smith v. Evans, 853 F.2d 155 (3d Cir.
1988). If these facts are correct the court lacks jurisdiction
and the motion must be dismissed.
If the court has jurisdiction the motion must be denied. A
motion for reconsideration is deemed a motion for modification or
amendment of the judgment under Fed.R.Civ.P. 59. To prevail a
party must show i) an intervening change in controlling law, ii)
availability of new evidence not previously available or iii) the
need to correct clear error of law or prevent manifest injustice.
The DaSilva Plaintiffs have shown none of the foregoing.
Under Local Civil Rule 7.1(g) there shall be served with a
motion for reargument "a brief setting forth concisely the
matters or controlling decisions which counsel believes the Judge
or Magistrate Judge has overlooked." A motion for reargument is
not to be used as a vehicle to reargue matters already
The DaSilva Plaintiffs' brief sets forth no matters or
controlling decisions which the August 10, 2005 opinion
overlooked. Apart from reciting much irrelevant material, the
brief simply reiterates the position expressed at the fairness
hearing to the effect that the Settlement Agreement does not
provide for large enough payments to the DaSilva Plaintiffs.
The DaSilva Plaintiffs' papers submitted in connection with the
fairness hearing did not present any analysis of the factors determinative of the question whether the payments
are fair, reasonable and adequate; and the motion for
reconsideration does not present any analysis of those factors.
The only argument that is new is the contention that the
settlement must be vacated because the DaSilva Plaintiffs'
counsel were not present when Esmor counsel and class counsel
negotiated the agreement. That fact was known to the DaSilva
Plaintiffs at the time of the fairness hearing, as it must have
been known to all other members of the class. It was not raised
at that time and, apart from the fact that the contention has no
merit, it cannot be raised for the first time on the motion for
The court assumes that it has jurisdiction to hear this motion.
For the reasons set forth above the motion for reconsideration
has no merit and will be denied. The court will file an order
implementing this opinion.
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