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Berrada v. Cohen

United States District Court, D. New Jersey

December 4, 2017

MARK BERRADA, Plaintiff,



         Before the Court is plaintiff Mark Berrada's motion for reconsideration of that portion of the Court's Opinion and Order of April 24, 2017 Opinion & Order (ECF No. 186) that denied him leave to assert a claim for retaliation under the Fair Labor Standards Act ("FLSA") on the ground that such a claim would be futile. (ECF No. 188). He further moves in the alternative for leave to file a Second Amended Complaint ("SAC") repleading the proposed FLSA retaliation claim. Defendants Gadi Cohen and PNY Technologies ("PNY") oppose the motion in its entirety. (ECF No. 199). For the reasons set forth below, plaintiffs motion is DENIED.

         Familiarity with the background set forth in the Court's April 24, 2017 Opinion & Order is assumed. (See ECF No. 186). In short, that Opinion and Order granted, over defendants' objection, plaintiffs motion to assert six new claims in this action and to assert new factual allegations. The Court denied leave to assert only a single one of the seven proposed new claims on the ground that plaintiffs proposed claim for retaliation under the FLSA would be futile.

         Plaintiff now requests that the Court reconsider the denial of leave to amend as to that single claim and, if reconsideration is not granted, to have the Court in the alternative grant his motion to replead an amplified version of the proposed FLSA retaliation claim. The Court adheres to its original decision, finding that plaintiff has not demonstrated any error in its initial analysis.


         The Court first addresses plaintiffs motion for reconsideration of the Court's denial of leave for him to assert an FLSA retaliation claim. Next, the Court addresses his new motion to amend, which seeks leave to assert a repleaded form of the same FLSA retaliation claim.

         I. Plaintiffs Motion For Reconsideration

         The grounds for seeking reconsideration are limited. Local Civil Rule 7.1(i) requires a party seeking reconsideration to set forth "concisely the matter or controlling decisions which the party believes" the Court "overlooked" in its decision. Reconsideration is appropriate only where the movant demonstrates "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion . . .; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Courts should be "loathe to [reconsider their decisions] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would make a manifest injustice." Lesende v. Borrero, 752 F.3d 324, 339 (3d Cir. 2014) (internal quotation marks omitted).

         Reconsideration is not warranted here. Plaintiff seeks to assert an FLSA retaliation claim based on defendants' assertion of compulsory counterclaims that he contends are premised on false allegations and filed with a retaliatory motive. In analyzing the viability of the proposed claim, the Court gave plaintiff the benefit of the doubt as to several legal hurdles he faced in asserting such a claim. First, the Court held that although plaintiffs employment or consulting relationship with PNY had terminated several years before the counterclaims were asserted, the absence of an employment relationship at the time defendants filed the counterclaims did not mean as a matter of law that the counterclaims could not constitute retaliation under the FLSA. (Opinion, ECF No. 186 at 12-13). Second, the Court rejected defendants' contention that the assertion of a counterclaim could never be considered an adverse employment action sufficient to state a retaliation claim under the FLSA. (Id. at 13).

         Where the Court differed with plaintiff, however, was on the issue of whether under the circumstances here plaintiff could sustain a viable FLSA retaliation claim. Noting that it would be improper to conclude that the assertion of any counterclaim against a former employee who had asserted an FLSA claim could be considered retaliation under the FLSA, the Court adopted the standard followed in those courts holding that only a baseless-i.e., frivolous and sanctionable- counterclaim could support an FLSA retaliation claim. See Id. at 14.

         Here, plaintiff does not persuade the Court any more on his second and third attempts than he did on his first that his proposed FLSA retaliation claim is viable. The counterclaims he contends are retaliatory are compulsory counterclaims that defendants were required to assert or risk waiving. Therefore, it was particularly unlikely plaintiff could bring a retaliation claim based on those counterclaims. See Ergo v. Int'l. Merch. Servs., Inc., 519 F.Supp.2d 765, 780-81 (N.D. 111. 2007) ("The filing of a compulsory counterclaim is a particularly unlikely basis for a retaliation claim for a number of reasons: the FLSA plaintiff will have already asserted his or her rights, it will not cause the plaintiff to hire a lawyer or incur significant additional expenses, and (most significantly) the Defendant must bring compulsory counterclaims or risk waiving them."). Ultimately, the Court concluded that plaintiffs allegations did not suggest that the counterclaims were baseless.

         Although plaintiff argues that the Court "overlooked" the proposed allegation that the defendants' counterclaims contain "false allegations of fact, " he is incorrect. The Court explicitly acknowledged that plaintiffs allegations contested the factual allegations underlying the defendants' counterclaims, asserting that they are "false." (ECFNo. 186 at 10-11, 14). SeeResorts Int'l, Inc. v. Greate Bay Hotel & Casino, Inc., 830 F.Supp. 826, 831 (D.N.J. 1992) ("[T]he word 'overlooked' [is] the dominant term in [Local Civil Rule 7.1]. Only 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."). Nevertheless, the Court found that the proposed FLSA claim was futile because plaintiff never pleaded or argued, and the PAC's allegations did not suggest, that the counterclaims were baseless. Plaintiffs quibbling over how the Court should have interpreted either his allegations or the fact that he did not move to dismiss the counterclaims does not establish an error that created a "manifest injustice." These arguments amount to disagreement with the Court's reasoning, which is inappropriate on a motion for reconsideration. See Andreyko v. Sunrise Sr, Living, Inc., 993 F.Supp.2d 475, 478 (D.N.J. 2014) ("[A] difference of opinion with the court's decision should be dealt with through the normal appellate process.").

         Essentially, plaintiffs motion for reconsideration argues that the Court should have assumed the truth of his conclusory and vehemently disputed assertion that the counterclaims are based on false facts. This is not proper given the history here, where plaintiff never moved to dismiss the counterclaims or otherwise asserted that they were frivolous when they were filed. Indeed, to conclude that plaintiffs FLSA retaliation claim is viable here would be akin to announcing that such a claim may be asserted whenever a defendant asserts a counterclaim that plaintiff disputes in an action where the plaintiffhas asserted an FLSA claim. The protective scope of a retaliation claim cannot extend this far without making the assertion of an FLSA retaliation claim itself a retaliatory tool against a former employer. Plaintiffhas been granted leave to assert a host of new claims against his former employer. He should focus on concluding discovery on those claims. This proposed claim is futile.

         II. Plaintiffs ...

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