United States District Court, D. New Jersey
OPINION and ORDER
MADELINE COX ARLEO, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Third Party
Plaintiff Jesus Palmeroni's motion to reconsider the
Court's Order dated January 27, 2017, granting summary
judgment in favor of Counterclaim Defendant N.V.E., Inc., and
Third Party Defendants Robert Occhifinto and Walter Orcutt.
ECF No. 641. Specifically, Palmeroni seeks
reconsideration on his Conscientious Employee Protection Act
(“CEPA”) retaliation claim under N.J.S.A.
§§ 34:19-1, et seq., and common law fraud claim,
respectively counts one and four of his Third Party and
Counterclaim Complaint. See Br. at 2, ECF No. 641-5.
For the reasons set forth below, the motion is
seeking reconsideration must show “
intervening change in the controlling law;
availability of new evidence that was not available when the
court granted the motion . . .; or
need to correct a clear error of law or fact or to prevent
manifest injustice.” Max's Seafood Cafe v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The
standard is high; reconsideration is not an opportunity for a
party to “relitigate the case.” OR v.
Hunter, 576 F. App'x 106, 110 (3d Cir. 2014). A
motion for reconsideration is not an alternative to the
appellate process, and one that merely raises “a
difference of opinion with the court's decision”
must be denied. Ownbey v. Aker Kvaerner Pharm. Inc.,
No. 07-2190, 2015 WL 7295892, at *1 (D.N.J. Nov. 17, 2015).
first argues that he is entitled to an adverse inference
charge based on the Court's prior opinion, N.V.E.,
Inc. v. Palmeroni, No. 06-5455, 2011 WL 4407428, at *2
(D.N.J. Sept. 21, 2011), and the adverse inference precludes
summary judgment against him on his CEPA claim. The Court
outset, Palmeroni did not raise the adverse inference
argument in his opposition papers, see generally ECF
No. 613; he raised it for the first time at oral argument.
That is reason enough to reject it. See Baker v. Hopeman
Bros., No. 11-01646, 2012 WL 7761420, at *1 (E.D. Pa.
Nov. 9, 2012) (“[B]ecause Defendant did not raise a
challenge to the sufficiency of Plaintiff's evidence
pertaining to . . . causation, it will not consider such an
argument raised for the first time during oral
argument.”). But even turning to the merits of his
argument, it still fails.
requires proof of four elements: “(1) that the
plaintiff reasonably believed that employer's conduct
violated a law or regulation; (2) that the plaintiff
performed “whistle-blowing activity” as defined
in CEPA; (3) that an adverse employment action has been taken
against him or her; and (4) that the whistle-blowing activity
caused such adverse employment action.” Ivan v.
Cty. of Middlesex, 595 F.Supp.2d 425, 466 (D.N.J. 2009).
The Court agrees with Palmeroni that its prior decision could
entitle him to an adverse inference on parts of his CEPA
claim. In that claim, Palmeroni alleges that he was fired for
whistleblowing when Occhifinto told him to make sales in
cash, which he would not report to the creditor committee
overseeing N.V.E.'s bankruptcy. See Counterclaim
& Third Party Compl. ¶ 4(c), ECF No. 401. In its
opinion, the Court noted that “Mr. Palmeroni believes
that the MACS system maintained other records, including
notes made by sales people and evidence of cash sales to
support his counterclaim . . . [T]he Court finds that, at
minimum, the accounts payable, accounts receivable, purchase
orders and commission statements are relevant to this
litigation . . . [T]his Court finds that an adverse inference
is appropriate . . . .” See also N.V.E., 2011
WL 4407428, at *2, 7. But the Court does not agree with
Palmeroni that an adverse inference allows his CEPA claim to
survive summary judgment. The evidence of cash sales is
relevant only to the first two elements of the claim-whether
Palmeroni believed his employers were committing bankruptcy
fraud and whether he engaged in whistleblowing activity. It
is irrelevant to the fourth element, causation. As the Court
held in its summary judgment decision, no reasonable jury
could conclude that Palmeroni was fired because he
engaged in whistleblowing activity. Rather, the evidence
established that he was fired because his bosses discovered
that he perpetrated a multi-million dollar scheme to defraud
the company. Tr. 69:15-25, 77:4-79:1.
Palmeroni has not explained what part of the Court's
adverse inference decision applies to the CEPA causation
issue. As he did at oral argument, he argues in conclusory
terms that the destroyed records “were needed to prove
Palmeroni's counterclaims and third-party claims.”
Br. 3. He cannot avoid summary judgment by raising a vague
argument for the first at oral argument. Accordingly,
Palmeroni's first theory for reconsideration
Palmeroni contends that the adverse inference decision should
enable his fraud claim to survive summary judgment too. In
that claim, Palmeroni alleged that Occhifinto reduced his
salary but induced him to stay with company by promising a
large severance package and year-end bonus, which Occifinto
never paid. Counterclaim & Third Party Compl.
¶¶ 9-18. The Court granted summary judgment against
Palmeroni on this claim because it was barred by the economic
loss doctrine since it was really a breach of contract claim
disguised as a tort, and because Palmeroni provided no
evidence that the Occhifinto knew the promises were false at
the time he made it or that Palmeroni relied on the promises.
Tr. 79:8-18. But Palmeroni does not explain why the
Court's decision on his fraud claim was wrong or how the
spoliation decision has any impact on it. As such, the Court
rejects this theory too.
conclusion, for the reasons set forth above,
ORDERED that Palmeroni's motion for
reconsideration, ECF No. 641, is DENIED.