United States District Court, D. New Jersey
MICHAEL A. SHIPP, District Judge.
This matter comes before the Court upon Defendants' Motion for reconsideration (ECF No. 48) of this Court's September 11, 2014 Memorandum Opinion and Order denying Defendants' motion to dismiss this action for failure to state a claim of medical malpractice because Plaintiff did not serve an Affidavit of Merit as required under N.J.S.A. 2A:53A-29. (ECF Nos. 46, 47.) The Court has carefully considered the Parties' submissions and arguments. For good cause shown, the motion for reconsideration is denied.
The procedural history and factual background of this case were set forth in detail in this Court's September 11, 2014 Memorandum Opinion (ECF No. 46, Op. at 1-3), and the Court refers to that Memorandum Opinion accordingly rather than reciting the facts again here. At issue is Defendants' motion for reconsideration of this Court's September 11, 2014 decision denying the motion to dismiss for failure to provide an Affidavit of Merit as required under N.J.S.A. 2A:53A-29. In denying the motion, this Court found that Plaintiff had demonstrated grounds for this Court to apply both the extraordinary circumstances exception and the substantial compliance exception for an extension of time to submit an Affidavit of Merit. ( Id., Op. at 6-10.) Specifically, this Court observed:
... the cumulative impact of Plaintiff's incarceration restricting his access to obtain medical advice, the late appointment of counsel, and the difficulty of counsel in obtaining medical records, suffice to warrant an extension of time....
... this Court finds that Plaintiff acted diligently given the restrictive confines of his incarceration and the late appointment of counsel. Plaintiff's counsel actively sought Plaintiff's medical records, which were not received until after Defendants' motion to dismiss was filed. Without complete medical records, Plaintiff was unable to obtain the expert medical advice necessary for an affidavit of merit as contemplated under the statute. Thus, it cannot be said that Plaintiff was "sleeping on his rights." Abraham [ v. Rothkopf], [Civil No. 07-2254, ] 2008 WL 3413850 at *4 [(D.N.J. Aug. 8, 2008)]. Moreover, Plaintiff has provided reasonable notice of his claim to the CFO Defendants by his complaint and his later rudimentary affidavit such that the CFO Defendants are not prejudiced by an additional extension of time to allow Plaintiff's compliance with the statute. Indeed, Plaintiff has demonstrated a desire to fulfill the requirements of the affidavit of merit statute. Consequently, this Court concludes that Plaintiff has substantially complied with the Affidavit of Merit statute and that circumstances exist that warrant relaxation of the statutory requirements.
(ECF No. 46, Op. at 9-10.)
On September 15, 2014, Defendants filed this motion for reconsideration of the Court's September 11, 2014 decision. (ECF No. 48.) Defendants argue that this Court erred (1) by treating Plaintiff differently than other pro se and/or indigent plaintiffs; (2) in raising and deciding issues of exceptional circumstances and substantial compliance sua sponte without giving the parties an opportunity to argue the issues; (3) in concluding that both exceptional circumstances and substantial compliance existed where Plaintiff admitted that his rudimentary Affidavit of Merit was not timely served and did not meet the requirements of the New Jersey statute; (4) granting relief that defeats the purpose of the Affidavit of Merit statute, which requires proof of validity of claims through expert affidavit; and (5) granting an extension of time for service of an Affidavit of Merit sua sponte.
On October 6, 2014, Plaintiff filed an opposition to Defendants' motion for reconsideration. (ECF No. 49.) Plaintiff argues that Defendants' motion simply disagrees with this Court's September 11, 2014 decision, and fails to present any newly discovered evidence or previously presented case law that was ignored by the Court. Instead, Defendants are simply restating arguments that the Court had already decided. ( Id. )
On October 8, 2014, Defendants filed a reply in support of their motion for reconsideration. (ECF No. 50.)
The Court notes that, on November 13, 2014, the Honorable Douglas E. Arpert, U.S.M.J., granted Plaintiff an extension of time to serve the Affidavit of Merit until November 19, 2014. (ECF No. 56.) On November 19, 2014, Plaintiff's counsel wrote to Judge Arpert seeking additional time until December 17, 2014, given the fact that Plaintiff's MRI was conducted on November 7, 2014, and Plaintiff was evaluated by an orthopedic surgeon on November 12, 2014. (ECF No. 57.) Defendants opposed the additional extension in a letter dated November 20, 2014. (ECF No. 58.) On November 25, 2014, Judge Arpert denied Plaintiff's request for an extension to file an Affidavit of Merit. (ECF No. 59.)
II. Legal Standard Regarding Motions for Reconsideration
Local Civil Rule 7.1 (i) permits a party to seek reconsideration by the Court of matters "which [it] believes the Court has overlooked" when it ruled on the motion. L. Civ. R. 7.1(i); see NL Industries, Inc. v. Commercial Union Insurance, 935 F.Supp. 513, 515 (D.N.J. 1996). "The word overlooked' is the dominant term, meaning that except in cases where there is a need to correct a clear error or manifest injustice, [o]nly dispositive factual matters and controlling decisions of law which were presented to the court but not considered on the original motion may be the subject of a motion for reconsideration." Leja v. Schmidt Mfg., Inc., 743 F.Supp.2d 444, 456 (D.N.J. 2010) (citation omitted); Bowers v. Nat'l Collegiate Athletic Ass'n, 130 F.Supp.2d 610, 612 (D.N.J. 2001) (citation omitted).
It is well settled that a motion for reconsideration is an extraordinary remedy and should be granted "very sparingly." See Caver v. City of Trenton, 420 F.3d 243, 258 (3d Cir. 2005); Fellenz v. Lombard Inv. Corp., 400 F.Supp.2d 681, 683 (D.N.J. 2005); Tehan v. Disab. Mgmt. Servs., Inc., 111 F.Supp.2d 542, 549 (D.N.J. 2000) (citation omitted). The scope.of a motion for reconsideration is "extremely limited" and may not "be used as an opportunity to relitigate the case." Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). Thus, a movant seeking reconsideration must show: (1) an intervening change in controlling law; (2) the availability of new evidence that was previously unavailable; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See Lazardis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 201 O); Max's Seafood Cafe ex rel. ...