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Seldon v. Rebenack, Aronow &Amp; Mascolo, Llp

United States District Court, Third Circuit

April 29, 2013

Philip SELDON, et al., Plaintiffs,
v.
REBENACK, ARONOW & MASCOLO, LLP, et al., Defendants.

OPINION

ANNE E. THOMPSON, District Judge.

I. INTRODUCTION

This matter has come before the Court on the Motion for Reconsideration filed by Plaintiffs Philip Seldon ("Seldon"), Magazine Emporium, Inc., Silence is Golden Foundation, Inc., and Birddog Associates Inc. ("Plaintiffs") on March 11, 2013.[1] (Docket Entry No. 20). Defendants Rebenack, Aronow & Mascolo, LLP and Jay Mascolo ("Defendants") oppose the motion. (Docket Entry No. 23). The Court has decided the motion after considering the parties' written submissions and without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the following reasons, Plaintiffs' motion is denied.

II. BACKGROUND

For the purposes of this motion, the Court assumes the parties' familiarity with the underlying facts of the case and briefly recites those facts relevant to the Court's analysis. This case arises out of Defendants' representation of Plaintiffs in two other civil lawsuits. (Compl., Docket Entry No. 1). Plaintiffs filed a complaint ("Complaint") on August 22, 2012, seeking compensatory and punitive damages for negligent representation and fraudulent misrepresentation. ( Id. ). On September 13, 2012, Defendants filed an answer. (Docket Entry No. 3).

On January 15, 2013, Defendants moved to dismiss the Complaint for failure to provide an affidavit of merit. (Docket Entry No. 10). In a memorandum opposing the motion, Plaintiffs explained that "[t]he reason why the defendants did not receive the Affidavit of Merit may be that when preparing the envelope it was to be mailed in..., [Seldon] inadvertently put only one stamp on the envelope when the weight of its contents exceed one ounce by a fraction of an ounce thus making the postage on the envelope ever so slightly inadequate." (Docket Entry No. 14 at § 3). Plaintiffs also argued that they should have been advised that Defendants had not received the affidavit of merit when Seldon called the office of Defendants' attorney on January 8, 2013 and asked Carol Sibilia ("Sibilia"), an assistant to Defendants' attorney, whether there were "any outstanding matters." ( Id. at § 1).

On February 19, 2013, the Court granted Defendants' Motion to Dismiss for Failure to Provide an Affidavit of Merit. (Docket Entry Nos. 16, 17). The Court reasoned that Plaintiffs, having conceded that Defendants did not receive the affidavit of merit because Plaintiffs had not affixed the proper amount of postage, had not served an affidavit of merit within 120 days as required by statute. (Docket Entry No. 16 at 3). Furthermore, Plaintiffs' failure to serve the affidavit of merit was excused by neither the "extraordinary circumstances" or "substantial compliance" exceptions. ( Id. ). In discussing the extraordinary circumstances exception, the Court held that "an inadvertent error in affixing postage does not constitute an extraordinary circumstance that precludes dismissing the complaint." ( Id. ). Plaintiffs now move for reconsideration of the Court's decision. (Docket Entry No. 20).

III. STANDARD

"Reconsideration is an extraordinary remedy" and should be "granted very sparingly." See L. CIV. R. 7.1(I) cmt.6(d) (internal quotations omitted); Church & Dwight Co., Inc. v. Abbott Labs., 545 F.Supp.2d 447, 449 (D.N.J. 2008) ("The standard for reconsideration is high and reconsideration is to be granted only sparingly."). A proper motion for reconsideration "must rely on one of three major grounds: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct clear error of law or prevent manifest injustice." North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995) (internal quotations and citations omitted).

Motions for reconsideration "are not an opportunity to argue what could have been, but was not, argued in the original set of moving and responsive papers, " nor are such motions "an opportunity for the parties to avail themselves of additional briefing." Bowers v. Nat'l Collegiate Athletic Ass'n Act, Inc., 130 F.Supp.2d 610, 613 (D.N.J. Feb. 2, 2001). In other words, such motions "should not provide the parties an opportunity for a second bite at the apple." Tischio v. Bontex, Inc., 16 F.Supp.2d 511, 532 (D.N.J. June 29, 1998).

IV. ANALYSIS

Under New Jersey law,

[i]n any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.

N.J.S.A. 2A:53A-27. The court may grant one 60 day extension. Id. If a plaintiff fails to provide each Defendant with an affidavit of merit within 120 days of the filing of the answer, the complaint will be dismissed with prejudice unless an exception, such as the "extraordinary circumstances" exception, applies. Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001) (citing ...


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