United States District Court, D. New Jersey
before the Court are Plaintiffs Claudio Tundo and Ruben
Gilgorri's (together, “Plaintiffs”) motion
for reconsideration (D.E. No. 139) and Defendants Passaic
County Sheriff's Department (“PCSD”), PCSD
Warden Charles Meyers, and PCSD Sheriff Jerry Speziale's
(together, “Defendants”) motion for summary
judgment (D.E. Nos. 174 & 175). The Court has jurisdiction
under 28 U.S.C. § 1331. Having considered the
parties' submissions in support of and in opposition to
the instant motions, the Court decides the motions without
oral argument. See Fed. R. Civ. P. 78(b). For the
reasons set forth below, the Court DENIES Plaintiffs'
motion for reconsideration and GRANTS Defendants' motion
for summary judgment.
Tundo was employed by the PCSD as a corrections officer in
January 2005. (Defs. SMF ¶ 1). Gilgorri was employed by
the PCSD as a corrections officer in December 2005. (Pls. SMF
¶ 9). In March 2008, the PCSD announced a reduction in
force pursuant to a mass lay-off plan. (Id. ¶
12). As a result, Plaintiffs were laid off effective March 8,
August 2008, PCSD sought to re-hire corrections officers and
requested that the Civil Service Commission
(“CSC”) revive the eligible list for
Plaintiffs' position to permit the reappointment of
individuals who had been laid off. (Id. ¶¶
15-17; Defs. SMF ¶ 9). On September 25, 2008, the CSC
issued a decision ordering (i) eligible list S9999D to be
revived and for Tundo's name to be restored to that list;
and (ii) eligible list S9999F to be revived and for
Gilgorri's name to be restored to that list. (Defs. SMF
¶ 10; D.E. No. 180-7, Lockman Decl. Ex. U (“CSC
September 25, 2008 Decision”) at 6).
the eligible lists were revived, PCSD sought to remove
Plaintiffs from the lists based on Plaintiffs' work
history, disciplinary history, and other related issues.
(Defs. SMF ¶ 14). On January 15, 2009, the CSC issued a
notice of Disposition Deficiency to the PCSD for failure to
rehire Plaintiffs, which the PCSD appealed. (Id.
¶¶ 15-16). As a result of the PCSD's appeal,
the CSC issued a Final Administrative Action notice, dated
May 27, 2009. (Id. ¶ 17; D.E. No. 174-3,
Buglione Decl. Ex 2 (“CSC May 27, 2009 Decision”)
at 1, 14).
May 27, 2009 Decision states in relevant part that:
Tundo . . . and Gilgorri, should be restored to the list and
absent any disqualifications ascertained through an updated
background check, should be appointed as County Correction
Officers subject to completion of a new 12-month working test
period. Should they be unsuccessful [in] completing their
working test periods, the Sheriff's Department may
release them in accordance with N.J.A.C. 4A:2-4.1.
(CSC May 27, 2009 Decision at 13).
PCSD's policy was that officers who had been laid off for
a year had to complete new reemployment applications, but
those who had been laid off for less than a year did not have
to submit reemployment applications. (Pls. Counter SMF ¶
19; Defs. SMF ¶ 21). The initial employment applications
and the reemployment applications at issue are identical and
both contain an identical “hold harmless” clause.
(Defs. SMF ¶ 22; Pls. Counter SMF ¶ 22). Plaintiffs
were required to complete the employment application and sign
a “hold harmless” clause when they originally
applied for positions with the PCSD. (Defs. SMF ¶ 23;
Pls. Counter SMF ¶ 23). Because Plaintiffs had been laid
off for over a year, Defendants offered to rehire Plaintiffs
once they completed their reemployment applications and
passed updated background checks. (Defs. SMF ¶ 24; Pls.
Counter SMF ¶ 24). Plaintiffs refused to complete the
reemployment application and were subsequently removed from
the eligible list. (Defs. SMF ¶ 25; Pls. Counter SMF
October 2, 2009, Plaintiffs filed the instant 42 U.S.C.
§ 1983 action against PCSD, PCSD Sheriff Speziale, and
PCSD Warden Charles Meyers challenging their removal from the
eligible list and alleging violation of their rights under
the Fourteenth Amendment's Equal Protection Clause (Count
I) and Due Process Clause (Count II). (D.E. No. 1, Compl. at
10-11). In fall 2013, the parties submitted summary-judgment
briefing to this Court. (See D.E. Nos. 108, 109,
114, 119 & 120). The parties thereafter agreed to
mediation, and the Court terminated the pending
summary-judgment motions without prejudice. (D.E. No. 126).
On January 23, 2015, the mediator informed the Court that the
matter had not been resolved. (D.E. No. 127). Defendants
refiled their motions for summary judgment (see D.E.
Nos. 130, 132-34), and Plaintiffs opposed Defendants'
motion (see D.E. No. 131). The Court heard oral
arguments on Defendants' motion on December 22, 2015, and
issued oral rulings following the parties' arguments.
(See D.E. No. 138; D.E. No. 180-6, Exhibit F
(December 22, 2015 Oral Argument Transcript)
(“Tr.”)). The Court then memorialized its rulings
in an Order entered on the docket the same day. (D.E. No.
December 22, 2015 hearing, the Court addressed several
issues. (See generally Tr.). First, the
Court addressed whether the District Court or the CSC is the
proper forum for Plaintiffs to assert their § 1983
claims. (Id. at 2-4). The Court held that
Plaintiffs' claims are properly before the Court and
declined to dismiss the Complaint. (Id.).
Second, the Court addressed whether Defendants are
entitled to summary judgment on Plaintiffs'
equal-protection claim, which Plaintiffs' voluntarily
dismissed at the hearing. (Id. at 5).
Third, the Court addressed whether Plaintiffs
pleaded a claim under the Substantive Due Process Clause of
the Fourteenth Amendment. (Id. at 6-17). Following
the parties' oral arguments, the Court held that
Plaintiffs “did not assert a substantive due process
claim in the Complaint and they are barred from now asserting
such a claim.” (Id. at 75-76). The Court
barred Plaintiffs from asserting such a claim because even
assuming that Plaintiffs did assert a substantive-due-process
claim, they had nevertheless failed to establish the
requisite elements, namely (i) “a fundamental property
interest that is protected by the United States
Constitution”; and (ii) “the government
deprivation of that protected interest that is so arbitrary
or irrational that it shocks the conscience.”
(Id.). The Court explained:
Public employment, such as the type at issue in this case,
does not create a substantive due process claim. . . . Public
employment is a State-created property interest.
Plaintiffs' alleged right to employment with Passaic
County is a State law contract right. Accordingly,
[P]laintiffs have failed to prove the existence of a
fundamental interest, and summary judgment is warranted in
(Id. at 76). Finally, the Court addressed
whether Plaintiffs possessed a property interest under the
Procedural Due Process Clause of the Fourteenth Amendment.
(Id. at 17-77). The Court held that (i) Plaintiffs
“did not have property interest since they were not
correction officers at the time and were not permanent since
they had not completed the requirements of the WTP; and (ii)
“there is not a property interest in
reemployment.” (Id. at 74). Plaintiffs,
however, represented that “the property interest that
[they] are asserting and stating is the fact that they do
have a protected property interest to be on that list,
” and the Court reserved its decision on this issue.
(Id. at 17-77). So, the only remaining issue is
whether Plaintiffs have “a property interest to be on
the eligibility list.” (Id. at 76).
January 8, 2016, Plaintiffs moved for reconsideration of the
Court's decision on the third and fourth issue-“on
the granting of summary judgment as to the substantive due
process claim and a part of the procedural due process
claim.” (D.E. No. 139-1 (“Pls. Recon. Mov.
Br.”) at 4). Defendants opposed Plaintiffs' motion
(D.E. No. 142 (“Defs. Recon. Opp. Br.”)), and
Plaintiffs submitted a reply in further support of their
motion (D.E. No. 143 (“Pls. Recon. Reply Br.”)).
filed another motion for summary judgment on December 8,
2017. (D.E. No. 174-2 (“Defs. Mov. Br.”); D.E.
No. 175). Plaintiffs opposed Defendants' motion. (D.E.
No. 180-3 (“Pls. Opp. Br.”)). And Defendants
submitted a reply in further support of their motion. (D.E.
No. 184 (“Defs. Reply Br.”); D.E. No. 185).
there are two pending motions before the Court: (i)
Plaintiffs' motion for reconsideration; and (ii)
Defendants' motion for summary judgment. The Court will
address each motion in turn.
Plaintiffs' Motion for Reconsideration
January 8, 2016, Plaintiffs moved for reconsideration
“on the granting of summary judgment as to the
substantive due process claim and a part of the procedural
due process claim.” (Pls. Recon. Mov. Br. at 4).
According to Plaintiffs, the Court should reconsider its
December 22, 2015 ruling for two reasons: (i) because
Defendants failed to argue that substantive due process was
not properly alleged in the Complaint; and (ii) because
Defendants failed to argue that no property right exists.
(Id. at 6-8).
District of New Jersey, motions for reconsideration are
governed by Local Civil Rule 7.1(i), which states:
“Unless 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. . . .”
Court entered judgment regarding the underlying matter on
December 22, 2015. (See D.E. No. 137). Plaintiffs
filed this motion on January 8, 2016-seventeen days later.
Plaintiffs did not offer any explanation for why they failed
to file their motion in a timely fashion and did not request
an extension of time to file the motion beyond the
fourteen-day limitation period set by the local rules.
Plaintiff's motion is therefore denied as untimely.
See Adams USA, Inc. v. Reda Sports, Inc., 220 F.
App'x 139, 141 (3d Cir. 2007) (“An untimely motion
for reconsideration is ‘void and of no
effect.'”) (quoting Amatangelo v. Borough of
Donora, 212 F.3d 776, 780 (3d Cir. 2000)); Mitchell
v. Twp. of Willingboro Municipality Gov't, 913
F.Supp.2d 62, 78 (D.N.J. 2012) (denying defendant's
motion for reconsideration as untimely because “it was
filed outside the fourteen-day period prescribed by L. Civ.
R. 7.1(i)”); Venner v. Delran Twp., No.
05-2480, 2007 WL 1231785, at *1 (D.N.J. Apr. 24, 2007)
(denying as untimely motion for reconsideration filed one
week late); XL Specialty Ins. Co. v. Westmoreland Coal
Co., No. 06-1234, 2006 WL 2241517, at *2 (D.N.J. Aug. 4,
2006) (noting that defendant's one-day delay “alone
is sufficient to deny Defendant's
the Court notes that any local rule “may be relaxed or
dispensed with by the Court if adherence would result in
surprise or injustice, ” see L. Civ. R.
83.2(b), Plaintiffs' submission fails to articulate any
surprise or injustice that would result in the Court's
adherence to Local Civil Rule 7.1(1) (see Pls.
Recon. Reply Br. at 2). Rather, in replying to
Defendants' opposition to their motion, Plaintiffs state
that “as for the issue of timeliness of the instant
motion, it is notable that Defendants themselves missed the
summary judgment deadline by months, and were only granted
leave to file summary judgment motions after
Plaintiffs' counsel wrote to the Court back in
June of 2013 requesting a trial date after the dispositive
motion deadline had passed.” (See Pls. Recon.
Reply Br. at 2). Like Defendants, Plaintiffs-who have been
represented by counsel throughout the course of this
protracted litigation-also could have sought leave at the
appropriate time to file an untimely motion for
reconsideration. Given Plaintiffs' failure to articulate
any surprise or injustice that would result from the
Court's adherence to Local Civil Rule 7.1(i), the Court
will deny Plaintiffs' motion. See Pharmacia Corp. v.
Motor Carrier Servs. Corp., No. 04-3724, 2008 WL 852255,
at *6 (D.N.J. Mar. 28, 2008) (noting that where the time for
filing a reconsideration motion has run, the issue as to
which reconsideration is sought “is best left to the
Defendants' Motion for Summary Judgment
judgment is appropriate if the moving party shows that there
is “no genuine issue of any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). An issue is “genuine” if it
is supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” if it “might
affect the outcome of the suit under the governing
law.” Id. The burden is on the moving party to
show no genuine issue of material fact exists. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the
non-moving party bears the burden of proof at trial, the
moving party may discharge its burden by showing “that
there is an absence of evidence to support the nonmoving
party's case.” Id. at 325. If the movant
meets this burden, the non-movant must then set forth
specific facts that demonstrate the existence of a genuine
issue for trial. Id. at 324; Azur v. Chase Bank,
USA, Nat'l Ass'n, 601 F.3d 212, 216 (3d Cir.
where the moving party bears the burden of proof at trial, it
“must show that it has produced enough evidence to
support the findings of fact necessary to win.” El
v. Se. Pa. Transp. Auth. (SEPTA), 479 F.3d 232, 237 (3d
Cir. 2007). “Put another way, it is inappropriate to
grant summary judgment in favor of a moving party who bears
the burden of proof at trial unless a reasonable ...