REED v. SCHEFFLER et al, No. 1:2016cv00423 - Document 37 (D.N.J. 2017)

Court Description: MEMORANDUM OPINION & ORDER denying 25 Motion for Reconsideration. Signed by Judge Noel L. Hillman on 5/8/2017. (tf, )
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REED v. SCHEFFLER et al Doc. 37 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY WILLIAM A. REED, JR. as personal representative for ELSIE M. REED, an incompetent individual, and WILLIAM A. REED, JR., individually, 1:16-cv-00423-NLH-AMD MEMORANDUM OPINION & ORDER Plaintiff, v. KAREN SCHEFFLER Mayor of the Borough of Palmyra, TRACY KILMER Housing Official, Borough of Palmyra, BOROUGH OF PALMYRA, Defendants. APPEARANCES: PETER M. KOBER 1876 GREENTREE ROAD CHERRY HILL, NJ 08003 On behalf of Plaintiff RICHARD L. GOLDSTEIN ASHLEY L. TOTH MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA WOODLAND FALLS CORPORATE PARK 200 LAKE DRIVE EAST SUITE 300 CHERRY HILL, NJ 08002 On behalf of Defendant Karen Scheffler HILLMAN, District Judge WHEREAS, pending before the Court is the motion of Plaintiff for reconsideration of the Court’s dismissal of his free speech claims against Defendant Karen Scheffler, the Mayor of the Borough of Palmyra, when Scheffler responded to Plaintiff’s statements in the Burlington County Times about his concerns over the Borough’s ordinance requiring a home owner to obtain a certificate of occupancy from the Borough prior to the sale of a home; and WHEREAS, the Court dismissed Plaintiff’s First Amendment claims because Plaintiff’s complaint contained no allegations that his free speech rights were chilled, or that he suffered any sort of retaliation; 1 and WHEREAS, Plaintiff is asking the Court to reconsider its decision, arguing that if pleading deficiencies were fatal to his claims, he should be permitted to amend his claims; and WHEREAS, Plaintiff’s brief provides suggested amendments to three paragraphs in his complaint; and WHEREAS, a motion for reconsideration may be treated as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e), or as a motion for relief from judgment or order under Fed. R. Civ. P. 60(b), or it may be filed pursuant to Local Civil Rule 1 The Court also dismissed Plaintiff’s defamation claim because Scheffler’s factually true statements were not actionable, and her remaining statements were opinions that did not rise to the level of contempt or ridicule, or of such a nature to harm plaintiff’s reputation in the community. Plaintiff has not sought reconsideration of this finding. 2 7.1(i); 2 WHEREAS, the purpose of a motion for reconsideration “is to correct manifest errors of law or fact or to present newly discovered evidence,” Max's Seafood Cafe ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); and WHEREAS, a judgment may be altered or amended only if the party seeking reconsideration shows: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice, id.; and WHEREAS, the Court finds that Plaintiff’s motion for reconsideration does not meet the listed items that warrant reconsideration; and WHEREAS, the Court further finds that even though Third Circuit precedent “supports the notion that in civil rights cases district courts must offer amendment--irrespective of whether it is requested--when dismissing a case for failure to 2 Plaintiff does not cite to any of these Rules, but the Court will construe Plaintiff’s motion, filed 28 days after the Court’s Opinion, to be brought pursuant to Fed. R. Civ. P. 59(e) because that rule is substantively most applicable to the relief Plaintiff is seeking, and the rule’s 28-day deadline causes Plaintiff’s motion to be timely filed. Cf. Fed. R. Civ. P. 59(e) (a motion to alter or amend judgment must be filed no later than 28 days after the entry of judgment); L. Civ. R. 7.1(i) (must be filed within 14 days); Fed. R. Civ. P. 60(b) (must be filed within one year, but a party must demonstrate the same elements as a Rule 7.1(i) motion). 3 state a claim,” that notion does not apply if “doing so would be inequitable or futile,” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); and WHEREAS, the Court has reviewed Plaintiff’s proposed amendments and finds that they do not change the Court’s prior analysis, see Docket No. 23 at 7 (explaining that a court cannot credit either “bald assertions” or “legal conclusions” in a complaint when deciding a motion to dismiss); Docket No. 23 at 10-11 (simply adding to his complaint that Plaintiff, or any other ordinary and reasonable person, would be fearful of exercising his rights to speak to the council or newspaper in the future after Scheffler’s remarks is a “bald assertion” or “legal conclusion,” and does not establish the requisite causal connection); Docket No. 23 at 14 n.3 (explaining that Plaintiff’s conclusory statements that his home was in good repair must be supported by some minimal factual basis); and WHEREAS, the Court’s denial of his motion for reconsideration and its decision not to offer Plaintiff the opportunity to amend his complaint sua sponte does not prevent Plaintiff from seeking leave to file an amended complaint pursuant to Fed. R. Civ. P. 15; 3 3 Plaintiff’s motion indicates that the Estate of Elsie M. Reed should be substituted for Elsie M. Reed because Ms. Reed has passed away since the filing of the complaint. Regardless if Plaintiff files a Rule 15 motion, Plaintiff shall comply with 4 THEREFORE, IT IS on this 8th day of May , 2017 ORDERED that Plaintiff’s MOTION for Reconsideration [25] be, and the same hereby is, DENIED. s/ Noel L. Hillman NOEL L. HILLMAN, U.S.D.J. At Camden, New Jersey Federal Civil Procedure Rule 25 concerning the substitution of parties. 5
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