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Kanter v. Barella

November 16, 2005

RHODA KANTER, PLAINTIFF,
v.
HANS M. BARELLA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, U.S. District Judge

OPINION

By Opinion and Order dated September 21, 2005, this Court dismissed with prejudice Plaintiff's Rule 23.1 shareholder derivative action for failure to plead with the requisite particularity. Plaintiff subsequently filed this motion under L. Civ. R. 7.1(i), seeking reconsideration only of that portion of the Court's holding denying Plaintiff's complaint with prejudice.

Motions for reconsideration under Rule 7.1(i) will only be granted where certain facts or legal authority were presented but overlooked by the Court. To date, Plaintiff has not proffered a proposed amended complaint*fn1 or otherwise proffered any facts in addition to those contained in the original complaint. Nonetheless, the Court carefully considered and analyzed all facts and legal authority that Plaintiff did present, and concludes there is no basis upon which to grant this motion for reconsideration. Plaintiff's motion will be denied.

I. STANDARD OF REVIEW

Local Civil Rule 7.1(i) of the United States District Court, District of New Jersey, governs the instant motion for reconsideration. That rule requires that the moving party set forth the factual matters or controlling legal authority that it believes the court overlooked when rendering its initial decision. L. Civ. R. 7.1(i). Whether to grant reconsideration is a matter within the district court's discretion, but it should only be granted where such facts or legal authority were indeed presented but overlooked. DeLong Corp. v. Raymond Int'l, Inc., 622 F.2d 1135, 1140 (3d Cir. 1980), overruled on other grounds by Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); Williams v. Sullivan, 818 F. Supp. 92, 93 (D.N.J. 1993).

A "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). A motion for reconsideration is improper when it is used solely to ask the court to rethink what it has already thought through -- rightly or wrongly. Oritani Savings & Loan Assoc. v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990)(citing Above the Belt v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)), rev'd on other grounds, 989 F.2d 635 (3d Cir. 1993).

II. DISCUSSION

Plaintiff argues that the Court should have dismissed her claims without prejudice so as to allow her an opportunity to amend the Complaint.*fn2 (Pl. Br. at 2.) As the following exchange at the close of counsel's oral presentation at the August 10, 2005 hearing illustrates, however, leave to amend was not warranted:

THE COURT: One other question for Ms. Gross. Do you agree that if there's a dismissal on the ground of Rule 23.1, that that should be with prejudice under existing law?

MS. GROSS: No, we would like an opportunity to amend the complaint. We have only -- this complaint was filed and we would like an opportunity to amend.

THE COURT: Are you able to proffer that you have sufficient information to cure at least what the defendants perceive as the shortcomings of the complaint?

MS. GROSS: I've -- I believe that our complaint is adequate, but I've heard their arguments. And based on their arguments here, I believe that we have additional information or additional specifics that could cure some of their concerns with respect to the complaint.

THE COURT: Certainly one of the major concerns is the lack of specificity about what the specific directors did, what did they know, what action did they take or fail to take. Do you have that sort of information if given the opportunity to amend?*fn3

MS. GROSS: I believe that there -- not all of that information but some of that information, yes, your Honor. I do not have, for example, the ...


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