United States District Court, D. New Jersey
Jeffrey Erik Jakob William F. Cook William M. Tambussi Brown
& Connery LLP, Attorneys for Plaintiff
J. Fleming State of New Jersey Office of the Attorney
General, Attorney for Defendants
L. Hillman, U.S.D.J.
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.
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,
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
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.
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.
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.”
motion will be denied for two ...