United States District Court, D. New Jersey
KEVIN MCNULTY, U.S.D.J.
JPMorgan Chase Bank, N.A. (the "Bank") holds a
mortgage on the properties of two of the plaintiffs, Unita
Peri-Okonny and Ellen Heine. The Bank is named only in Count
7 of the Seventh Amended Complaint ("7AC", ECF no.
81). In a prior Opinion ("Op.") and Order (ECF nos.
127, 128), I granted the Bank's motion to dismiss the
Seventh Amended Complaint for lack of jurisdiction and
failure to state a claim. See Fed.R.Civ.P. 12(b)(1),
12(b)(6). Now before the Court is the plaintiffs' motion
(ECF nos. 130, 136) for reconsideration of that ruling. For
the reasons stated herein, the reconsideration motion will be
denied. In the following discussion, familiarity with my
prior Opinion is assumed.
standards governing a Rule 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction and a Rule 12(b)(6)
motion for failure to state a claim were explicated in my
prior Opinion. (Op. 1-3) That discussion is incorporated here
standards governing a motion for reconsideration are well
settled. See generally D.N.J. Loc. Civ. R. 7. l(i).
Reconsideration is an "extraordinary remedy, " to
be granted "sparingly." NL Indus. Inc. v.
Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J.
1996). Generally, reconsideration is granted in three
scenarios: (1) when there has been an intervening change in
the law; (2) when new evidence has become available; or (3)
when necessary to correct a clear error of law or to prevent
manifest injustice. See North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995);
Carmichael v. Buerson, 2004 WL 1587894, at *1
(D.N.J. May 21, 2004). Local Rule 7.1(i) requires such a
motion to specifically identify "the matter or
controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked." Id.; see also
Egloff v. New Jersey Air Nat'l Guard, 684 F.Supp.
1275, 1279 (D.N.J. 1988). Evidence or arguments that were
available at the time of the original decision will not
support a motion for reconsideration. Damiano v. Sony
Music Entm't, Inc., 975 F.Supp. 623, 636 (D.N.J.
1997); see also North River Ins. Co., 52 F.3d at
1218; Bapu Corp. v. Choice Hotels Int'l, Inc.,
2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing P.
Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161
F.Supp.2d 349, 352 (D.N.J. 2001)).
Bank is named only in Count 7 of the Seventh Amended
Complaint. That Count, which seeks several forms of
injunctive relief, is brought on behalf of plaintiffs Heine
and Peri-Okonny. Its allegations are summarized and discussed
in my prior Opinion. (Op. 3-6) I granted the Bank's
motion to dismiss Count 7 on several grounds.
Peri-Okonny, I held that the Rooker-Feldman doctrine
precluded litigation of matters encompassed by the prior
state court judgment of foreclosure. (Op. 6-7) I also found
that Peri-Okonny lacked Article III standing or that the
injunctive claims were moot, because the Bank acknowledged
that it had discharged the mortgage and sought no further
enforcement of it. (Op. 8-10)
Heine (and as an alternative basis for dismissal as to
Peri-Okonny), I applied the doctrine of res judicata
to a prior federal-court judgment in one of the many
similar litigations filed by these plaintiffs. Heine, et
al. v. Director of Codes and Standards, et al, No.
15-cv-8210 (ES/MAH) (the "2015 Action") (entering
final judgment against plaintiffs and giving preclusive
effect to judgments in prior State court actions). (Op.
I held in the alternative that the allegations against the
Bank failed to state a claim on which relief could be
granted. No facts were pled from which either the foreclosure
or the threat of foreclosure could be found invalid or
wrongful. Nor were any facts pled to indicate that Chase was
at fault for the fire code enforcement which allegedly drove
these parties into default. No facts underlie the request for
an injunction against "negative credit reporting."
This Motion for Reconsideration
current reconsideration motion focuses on Heine's
property in Garfield, New Jersey. It is not disputed that the
mortgage is in default; that has been the subject of state
court litigation, as detailed in my prior Opinion. The
reconsideration motion alleges that Chase, beginning in
October 2017, entered on the property and performed work
there. No cause of action is specified- here, as elsewhere,
the Court must assign a likely claim to the allegations-but
the state tort of trespass seems the best fit.
problems present themselves. To begin with, die motion does
not really seek reconsideration of anything decided in my
prior Opinion at all. The plaintiffs' brief simply lodges
fresh complaints against Chase. As noted, Heine seems to
argue that Chase's presence on the property violates
state tort law. New claims, however, cannot be asserted in a
brief on a motion for reconsideration. See ...