UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
May 27, 2010
ROBERT REILLY, PLAINTIFF,
CITY OF ATLANTIC CITY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Irenas, Senior District Judge
Plaintiff Robert Reilly ("Reilly") brings this employment action against his former employer and supervisors. Presently before the Court is Defendants Robert Flipping and Arthur Snellbaker's ("Flipping" and "Snellbaker" or, collectively, "Defendants") Joint Motion for Reconsideration.
In brief, former Atlantic City police officer Reilly brings suit against former Atlantic City Chief of Police Snellbaker, former Atlantic City Public Safety Director Flipping, and the City of Atlantic City, alleging that Reilly was retaliated against for his participation in the investigation and trial of a fellow police officer.*fn1
In his Complaint, Reilly alleges a number of theories of liability, including a First Amendment retaliation claim. On April 5, 2006, this Court decided denied Snellbaker and Flipping qualified immunity on Reilly's First Amendment claim as part of its determination of defendants' summary judgment motions. Defendants appealed to the Third Circuit. The Third Circuit, in a precedential opinion, affirmed this Court's decision on the issue of Reilly's First Amendment claim. Reilly, 532 F.3d at 233.
To date, all of Snellbaker and Flipping's attempts to have Reilly's First Amendment claim reconsidered have failed. The Third Circuit denied their petition to have the issue reheard en banc. Furthermore, the Supreme Court of the United States denied their subsequent petitions. Flipping v. Reilly, 129 S.Ct. 1316 (2009) (denying petition for writ of certiorari); Flipping v. Reilly, 130 S.Ct. 575 (2009) (denying motion for leave to file a petition for rehearing).
Presently before the Court is Flipping and Snellbaker's motion to reconsider the issue of their qualified immunity on Reilly's First Amendment claim. For the reasons stated herein, Flipping and Snellbaker's Motion will be denied.
Defendants seek reconsideration under Fed. R. Civ. P. 59(e) and L. Civ. R. 7.1. Under Local Civil Rule 7.1(i), prior to December 1, 2009, a motion for reconsideration must be brought "within 10 business days after the entry of the order or judgment on the original motion" and be accompanied by a "brief setting forth concisely the matter or controlling decisions which the party believes the Judge . . . has overlooked . . . ." L. Civ. R. 7.1(i) (2009).*fn2 A party seeking reconsideration must show "at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
Requests for reconsideration are only granted "very sparingly." Ivan v. County of Middlesex, 612 F. Supp. 2d 546, 551 (D.N.J. 2009) (internal citations omitted).
Defendants' motion is untimely, as it has been filed years past the deadline set out in Local Civil Rule 7.1. Acknowledging their tardiness, Defendants urge the Court to exercise its power under Local Civil Rule 83.2(b) to excuse their late filing. See L. Civ. R. 83.2(b) (2009) (allowing the Court to relax or dispense with any rule in the interest of avoiding injustice). The Court does not excuse this missed deadline and denies the instant motion as untimely.*fn3
Even if Defendants' motion were timely, it would still be denied on the merits. The Third Circuit explicitly considered the question of Defendants' qualified immunity on Reilly's First Amendment claim in a precedential opinion and affirmed this Court's denial of qualified immunity with respect to Reilly's First Amendment claim. Reilly, 532 F.3d at 233. Defendants argue that the issue should now be reconsidered because there has been an intervening change in the law. (Def. Br. at 6.) The thrust of Defendants' argument is that the Ninth Circuit issued an opinion subsequent to the Third Circuit's Reilly decision, Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), that Defendants claim created a "circuit split" on the issue of qualified immunity and so constitutes an intervening change in the law. Defendants also argue that because the Third Circuit routinely considers other circuits' decisions as part of its "clearly established" analysis, but did not have the opportunity to consider the Huppert case, the issue should be reconsidered. However, the mere existence of a contrary decision in a sister circuit does not necessarily alter the "clearly established" analysis. See Williams v. Bitner, 455 F.3d 186, 193 n.8 (3d Cir. 2006) ("Even if our sister circuits had in fact split . . . we would not necessarily be prevented from finding that the right was clearly established."). More to the point, as it is clear that the Huppert decision has not changed the controlling law in this circuit, Defendants' motion must fail. See Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
For the reasons stated above, Defendants' Motion will be denied. The Court will issue an appropriate Order.
JOSEPH E. IRENAS, S.U.S.D.J.