KANDIL et al v. YURKOVIC et al, No. 2:2006cv04701 - Document 172 (D.N.J. 2013)
Court Description: OPINION. Signed by Judge Dennis M. Cavanaugh on 12/9/13. (jd, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY BASSEM KANDIL, FLORA KANDIL, SAMEH A. ABOELATA and HALLA KANDIL. : Plaintiffs, : : Hon. Dennis M. Cavanaugh OPINION Civil Action No. 2:06-cv-04701 (DMC) (MF) V. GARY YURKOVIC, ANTHONY MARK: ABODE. WILLIAM C. OELS, III, WILLIAM OELS, JR.. EDWARD T. BOBADILLA, CHIEF OF POLICE, CITY OF NEW BRUNSWICK, CITY OF: NEW BRUNSWICK POLICE DEPARTMENT, MIDDLESEX COUNTY PROSECUTOR S OFFICE, MIDI)LESEX COUNTY CORRECTIONAL FACILITY, JOHN DOE SUPERVISING OFFICERS 1-10, JOHN DOES 1-10, ABC CORPS. 1-10, Defendants. DENNIS M, CAVANAUGI-1. U.S.D.J.: This matter comes before the Court upon the Mot ion for Reconsideration by Plaintiff Bassem Kandil (P1aintiff ) pursuant to L, Civ. R. 7.1(i). Pursuant to FED. R. Civ. P 78, no oral argument was heard. Based on the following and for the reasons expressed herein. Plaintiff s Motion is denied. L BACKGROUND In October 2004. Plaintiff was arrested by Defendant Officer Gary Yurkovic on charges ot aggravated assault on a police officer, resis ting arrest, disarming a police officer, and disorderly conduct. Plaintiff subsequently denied a plea agreement and file a Notice of Tort Clai m. On October 18, 2005, Plaintiff, his counsel, and Assistant Prosecutor Marcia Silva appe ared before the Honorable Frederick P. DeVasa in Mid dlesex County Superior Court for a statu s conference. Ultimately, a compromise was reached wher e Plaintiff would be enrolled in a Pretrial Intervention Program and. in exchange. wou ld waive all civil claims against State entit ies and officials (the release-dismissal agreemen t ). In September 2006, Plaintiff filed a civil matt er in this Court alleging fourteen counts against various Defendants purportedly invo lved in his arrest. On April 8, 201 0, this Cou rt granted summary judgment in favor of Defe ndants, finding that the release-dismissal agre ement was enforceable. The Third Circuit vacated this Court s order and remanded. finding that genuine issues of material fact existed as to the public interest element of the release-di smissal agreement s enfhrceability. On May 11, 2012 , this Court granted summary judgment for Defendants, finding that the execution of the release-dismissal agreement was in the publ ic interest. The Third Circuit affirmed this Cou rt s judgment with respect to Plaintiffs 1983 ยง claims, but remanded the matter for a determina tion as to whether Plaintiffs state law claim s are barred by the release-dismissal agreement. On July 31, 2013 and August 1. 2013. 1)efe ndants tiled motions for summary judgment. Plain tiff never filed an opposition to these motions. On September 25. 2013. this Court again gran ted summary judgment in favor of Defendants. finding that, based on New Jersey law, Plaintiffs state law claims were barred by the release-di smissal The facts set-forth in this Opinion are taken from the parti es pleadings. 2 agreement. Plaintiff filed the instant Motion for Reconsideration on October 9, 2013 (ECF No. 166). Defendants filed an Opposition on Nov ember 4, 2013 (ECF No, 171). 11. STAN1)ARI) OF REVIEW the purpose o a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Hars co Corp. v. Zlotnicki. 779 F.2d 906. 909 (Sd Cir. 1985), cert. denied, 476 U.S. 1171 (1986) (cita tion omitted), Reconsideration is an extraordinary remedy that is to be granted very sparingly. NL Indus. Inc. v. Commerc ial Umon Ins Co 935 F Supp 513 516 (D N 1 1996) (citmg Maldonado x Lucca 636 F Supp 621, 630 (T).N.J. 1986)). Local Rule 7.1(i), under which such motions are governed, does not contemplate a recapitulation of arguments cons idered by the Court before rendering its original decision l3eimingham Son Coip ot Am Inc 820 F Supp 834 856 (D J 1 992) Lci 37 F.3d 1485 (3d Cii . 1994). It is improper to ask the court to rethink what it ha[s] already thought through rightly or wrongly. Orita ni Say. & Loan Ass n v. Fid. & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990). Rather, a motion for reconsideration may be granted only if (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is nece ssary to correct a clear error of law or Pre\et manifest injustice. Database Am., Inc. v. Bell south Adver. & Pub. Corp.. 825 F. Supp. 1 2 1 6, 1220 (D.N.J. 1993); see also North River Ins. Co. v. CiGNA Reinsurance Co.. 52 F.3d 1194, 1218 (3dCir. 1995). HI. DISCUSSION Plaintiff does not allege that there has been an intervening change in controlling law or that there is new evidence that was not previous ly available. Rather, Plaintiff argues that his Motion br Reconsideration should be granted beca use this Court overlooked controlling, case 3 law. However, there was nothing for this Court to overlook, as Plaintiff never submitted an opposition to defendants motions for summary judg ment. This alone is a fatal flaw in Plaintifis Motion for Reconsideration. See Jobe v. Argent Mor tgage Co.. LLC, No. 3:CV-06-0697, 2009 WL 801 866, at * 1 n,4 (M.D. Pa. Mar, 25. 2009) ( Th e fact that Plaintiffs failed to raise these arguments in conjunction with their Motion for Summary Judgment. or in opposition to Defendanfs Motion for Summary Judgment, warrants dismissal of their Motion for Reconsideration as well. ); In re Linerboard Antitrust Litig., MDL No. 1261, 2008 WL 4461914, at *3 (E.D. Pa. Oct. 3, 2008) affd, 361 F. App x 392 (3d Cir. 2010) ( A motion to reconsider may not raise new arguments that could or should have been made in support of. or in opposition to, the original motion. ): Bapu Corp. v. Choice Hote ls Int l, Inc., No. 07-5938 WJM, 2010 WL 3259799, at * I (D.N.J. Aug. 17, 2010) (stating that it cannot consider Plaintiffs statute of limitations argument because it was raised for the first time in this motion for reconsIderation >. While Plaintiff points to arguments he made in oppo sitions to the previous motions for summary judgment in this matter, this does not excuse Plaintiffs failure to submit an opposition to the summary judgment motion at issue. Accordingly, Plain tiffs Motion for Reconsideration is denied. IV. CONCLUSION For the foregoing reasons, Plaintiffs Motion for Reconsid eration is denied. An appropriate order follows this Opinion. Dennis M. Cavanaugh, U. Date: Original: Cc: 7 e+eb ,2013 Clerk s Office All Counsel of Record File 4
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