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Re: Ralph Demmick, et al. v. Cellco Partnership

June 20, 2011

RE: RALPH DEMMICK, ET AL.
v.
CELLCO PARTNERSHIP



The opinion of the court was delivered by: Jose L. Linares United States District Judge

C H AM B ER S O F M A R TIN L U T HE R K IN G JR. JOSE L. LINARES FE D E R A L B U IL D IN G & U .S. C OU R T H O USE JU DG E 50 W A L N U T ST ., R O O M 5054 P.O . B ox 999 Newark, NJ 07101-0999 973-645-6042

NOT FOR PUBLICATION

Stephen L. Dreyfuss Hellring Lindeman Goldstein & Siegal LLP One Gateway Center Newark, NJ 07102

Heather V. Taylor McCarter & English, LLP Four Gateway Center 100 Mulberry Street Newark, NJ 07102

LETTER OPINION

Dear Counsel:

This matter comes before the Court by way of Plaintiffs' motion for reconsideration of this Court's March 29, 2011 Opinion and Order denying Defendant's motion for judgment on the pleadings. The Court has considered the submissions made in support of and in opposition to the instant motion. No oral argument was heard. Fed. R. Civ. P. 78. For the reasons that follow, Plaintiffs' motion is denied.

BACKGROUND AND STANDARD

As the Court writes only for the parties, a familiarity with the underlying factual and procedural background of this case will be assumed and will not be repeated here except where necessary to provide proper context for the pending motion. By way of Opinion and Order dated March 29, 2011, the Court denied Defendant's motion for judgment on the pleadings but stayed this case under the doctrine of primary jurisdiction, referring Plaintiffs' federal claims to the Federal Communications Commission ("FCC").

Plaintiffs have now filed a motion for reconsideration. "Reconsideration is an extraordinary remedy" and should be "granted 'very sparingly.' " See L.Civ.R. 7.1(I) cmt.6(d); see also Fellenz v. Lombard Investment Corp., Nos. 04-3993, 04-5768, 04-3992, 04-6105, 2005 WL 3104145, at *1 (D.N.J. Oct. 18, 2005). A party seeking reconsideration shall file and serve its motion within fourteen days after the entry of the order on the original motion. L. Civ. R. 7.1(I). A motion for reconsideration must "set[] forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked." Id. When the assertion is that the Court overlooked something, the Court must have overlooked "some dispositive factual or legal matter that was presented to it." McGovern v. City of Jersey, No. 98-5186, 2008 WL 58820, at *2 (D.N.J. Jan. 2, 2008).

DISCUSSION

In support of their motion for reconsideration, Plaintiffs make two arguments. First, Plaintiffs argue that they were not afforded an adequate opportunity to brief the issue of primary jurisdiction. Plaintiffs then argue that the Court improperly stayed this action under that doctrine because the determination of "unjust or unreasonable" practices under 47 U.S.C. § 201(b) falls within the conventional expertise of judges.

Plaintiffs' first argument is without merit. Plaintiffs argue that they had "no occasion" to address the issue of primary jurisdiction because it was initially raised in a footnote to Defendant's opening brief. (Pls.' Br. in Supp. of Mot. for Recons. at 2.) Plaintiffs, however, concede that the Court "could consider the primary jurisdiction doctrine without a motion by either party." (Id.) Furthermore, Plaintiffs' brief in opposition to Defendants' motion for judgment on the pleadings devoted four pages to arguing that their federal claims fall within the conventional expertise of judges, arguing that Alves v. Verizon, No. 08-3196, 2010 WL 2989988 (D.N.J. July 27, 2010), is distinguishable on this ground. (See Pls.' Br. in Opp'n to J. on the Pleadings at 9--13.) Indeed, Plaintiffs suggested that rather than dismissing their federal claims, the Court should stay the action and refer the matter to the FCC. (Id. at 24--25.) This is precisely the action taken in the Court's March 29, 2011 Order. Plaintiffs thus had ample opportunity to brief the issue raised in Defendant's opening brief.

Plaintiffs' second argument, essentially that the Court's decision was incorrect, must likewise fail. Plaintiffs substantially reassert the arguments made in their initial opposition brief-that their federal claims fall within the conventional expertise of judges and thus do not warrant referral based on primary jurisdiction. The Court has already considered these arguments, and Plaintiffs point to no legal authority or factual matters that the Court overlooked. Indeed, the Court notes that primary jurisdiction doctrine may be applicable even if the questions raised in a ...


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