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Estate of Florencio Morales,Jr., et al v. City of Jersey City

December 22, 2010


The opinion of the court was delivered by: Chesler, District Judge



This matter comes before the Court on the motion filed by Plaintiff, Estate of Florencio Morales, Jr. ("Plaintiff") for relief under Federal Rule of Civil Procedure 60(b) from the Court's Order of August 24, 2010 granting the City of Jersey City's unopposed motion to preclude Plaintiff's expert George Kirkham ("Kirkham"). In contemplation of the possibility that the Court might grant relief under Rule 60(b) and set aside its August 24, 2010 Order, the instant motion made by Plaintiff also includes substantive opposition to Defendant's motion to preclude Kirkham's testimony. Defendant, the City of Jersey City, has opposed the motion in its entirety, both as to the request for relief under Rule 60(b) and Plaintiff's attempt to thwart Defendant's effort to preclude the Kirkham testimony from admission at trial.

The Court must first point out that Federal Rule of Civil Procedure 60(b) is not a source of relief available to Plaintiff with regard to the August 24, 2010 Order because, as the Third Circuit has made clear, that rule applies only to "final" judgment and orders. Penn West Assocs. v. Cohen, 371 F.3d 118, 125 (3d Cir. 2004). A "final" order is one "which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Id. (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). On the other hand, "there is no final order if claims remain unresolved and their resolution is to occur in the district court." Id. (quoting Aluminum Co. of America v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir. 1997)). The August 24, 2010 Order is not final. It simply ruled that expert testimony proffered by Plaintiff was inadmissible under Federal Rule of Evidence 702. Plaintiff's failure to train claim against Defendant remains unresolved.

The Court must, therefore construe the instant motion filed by Plaintiff as one for reconsideration. Indeed, this motion is the second challenge Plaintiff has filed to the August 24, 2010 Order and the second time the Court has had to construe the challenge as requesting reconsideration of that order. See September 8, 2010 Opinion & Order [docket entry 115]. The Court repeats the standard for obtaining the extraordinary relief of reconsideration:

Reconsideration is warranted only if (1) there has been an intervening change in the controlling law; (2) evidence not available when the Court issued the subject order has become available; or (3) it is necessary to correct a clear error of law or fact or prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir 1995)). The movant bears a heavy burden of demonstrating that reconsideration is warranted. United States v. Jones, 158 F.R.D. 309, 314 (D.N.J.1994). Indeed, it is well-settled that "[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.'" G-69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J. 1990) (quoting Carteret Savings Bank, F.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J.1989)). Reconsideration is an extraordinary remedy, which should be granted "very sparingly." NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996). Moreover, motions for reconsideration must be brought within 14 days after the Court files the order as to which reconsideration is sought. See L.Civ.R. 7.1(i).

Plaintiff seeks reconsideration based on the fact that the Court ruled on the motion without consideration of any opposition by Plaintiff on the merits of Defendant's motion to preclude Kirkham's testimony. Plaintiff argues that he failed to file opposition to Defendant's motion to preclude Kirkham's testimony because Plaintiff's counsel did not notice that the Court had electronically posted a July 8, 2010 letter to the docket advising that (1) Plaintiff's opposition was due on July 26, 2010 and (2) the Court would thereafter proceed to adjudicate the motion, whether it was opposed or not. Plaintiff's counsel failed to keep himself apprised of the docket filings in this case, but as he puts it "inadvertently" did not become aware of the Court's July 8, 2010 letter.

This motion must be denied. First, it is out of time, as it was filed seven weeks after entry of the August 24, 2010 Order from which Plaintiff seeks relief. Second, none of the grounds upon which such a motion may be granted have been satisfied by Plaintiff. Indeed, his plea that the Court should, in the interests of justice, set aside its Order precluding Kirkham's testimony so that it may rule with the benefit of Plaintiff's opposition is wholly unpersuasive for a number of reasons.

Plaintiff's failure to file a timely opposition to Defendant's motion did not result from one isolated and understandable oversight by Plaintiff's counsel. Rather, a chain of several instances of neglect led Plaintiff to the filing of this motion for a "do-over" of Defendant's Daubert motion on Kirkham. Though the Court has previously recited those facts, in particular detail in its September 8, 2010 Opinion & Order denying Plaintiff's motion for reconsideration of the August 24, 2010 Order Plaintiff now seeks to vacate, the facts bear repeating.

Defendant filed its motion to exclude the Kirkham testimony on June 7, 2010, on notice to all parties. The motion clearly states that it would be returnable on July 6, 2010. The District of New Jersey's Local Civil Rules, with which Plaintiff's counsel is or certainly should be familiar, establish a briefing schedule for all motions, which governs unless the Court provides otherwise. See L.Civ.R. 7.1(b)(1) and (d)(2). The relevant provision states:

The brief and papers in opposition to a motion, specifying the motion day on the cover page, with proof or acknowledgment of service thereof on all other parties, must be filed with the Clerk at least 14 days prior to the original motion day, unless the Court otherwise orders . L.Civ.R. 7.1(d)(2). Accordingly, Plaintiff's opposition to Defendant's Daubert motion was due on or before June 21, 2010. Plaintiff neither filed opposition nor applied to the Court for an extension of time.

Nevertheless, the Court granted a sua sponte extension, adjourning the motion to a future return date in the interests of justice and to allow Plaintiff every reasonable opportunity to submit his argument on the motion. On July 8, 2010, the Court entered a letter on the docket which ordered as follows:

No opposition by Plaintiff has been filed with regard to the motion by Defendant the City of Jersey City to preclude the testimony of Plaintiff's expert George Kirkham [motion filed at docket entry 99]. The motion was filed on June 7, 2010, and thus pursuant to Local Civil Rule 7.1(c)(1), was noticed for a return date of July 6, 2010. In it discretion, the Court will adjourn the return date to August 2, 2010 to allow Plaintiff a further opportunity to respond to the motion. The opposition, if any, must be filed no later than July 19, 2010. If you choose not to submit opposition by that date, the motion will be deemed unopposed and will be disposed of accordingly.

Defendant is being notified of this extension of the briefing schedule by copy of this letter and will have until ...

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