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Zitter v. Petruccelli

United States District Court, D. New Jersey

May 8, 2017

MARC ZITTER, Plaintiff,
v.
CHRISTOPHER PETRUCCELLI, et al. Defendants.

          Jeffrey Erik Jakob William F. Cook William M. Tambussi Brown & Connery LLP, Attorneys for Plaintiff

          Kevin J. Fleming State of New Jersey Office of the Attorney General, Attorney for Defendants

          OPINION

          Noel L. Hillman, U.S.D.J.

         This case concerns an oyster harvesting operation in Cape May, New Jersey. Plaintiff sues several state officials claiming that they destroyed thousands of dollars' worth of his oysters in retaliation for protected speech. Presently before the Court is Plaintiff's Motion for Reconsideration of the Court's previous decision granting Defendants' Motion to Dismiss as it pertains to the Takings Clause claim asserted in the First Amended Complaint. For the reasons stated herein, the Motion for Reconsideration will be denied.

         I.

         The Court's decision implicated by the instant motion is available at Zitter v. Petruccelli, 2016 U.S. Dist. LEXIS 135656 (D.N.J. Sept. 30, 2016). In that opinion, the Court ruled that Plaintiff's Takings Clause claim would be dismissed with prejudice for failure to state a claim, explaining,

Plaintiff's property was seized pursuant to New Jersey statute which in order to protect the public health requires the Department of Environmental Protection to prohibit the taking and sale of oysters from contaminated waters (N.J. Stat. Ann. § 54:24-3) and authorizes the agency to destroy or dispose of any such food “[e]xposed or offered for sale, or had in possession with intent to sell” (N.J. Stat. Ann. § 24:4-11).

Zitter, 2016 U.S. Dist. LEXIS at *21. Therefore, the Court held, Plaintiff could not allege that there had been an unlawful taking.

         The opinion and order were issued on September 30, 2016. The instant Motion for Reconsideration was filed on October 28, 2016. On that same day, Plaintiff filed a Second Amended Complaint which asserts a Takings Clause claim. Most notably, the Second Amended Complaint alleges that the state entity that actually took and destroyed Plaintiff's oysters-- the Division Fish and Wildlife-- lacks statutory and regulatory authority to enforce the violations with which Zitter was charged. (See Second Amended Complaint ¶ 291) Plaintiff asserts that this is a different theory of liability than before.

         Defendants have moved to dismiss the Second Amended Complaint. Although the Second Amended Complaint asserts a Takings Clause claim, Defendants do not argue that the Second Amended Complaint fails to state a claim as to the Taking Clause (other than arguing 11th Amendment and qualified immunity); nor do Defendants argue that this Court already ruled on the Takings Claim as asserted in the Second Amended Complaint.

         II.

         Local Civil Rule 7.1(i) provides, “[u]nless otherwise provided by statute or rule (such as Fed.R.Civ.P. 50, 52 and 59), a motion for reconsideration shall be served and filed within 14 days after the entry of the order or judgment on the original motion by the Judge or Magistrate Judge.”

         III.

         The motion will be denied for two ...


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