Advice for Judges from a Judge. Here’s How to Approach Motions for Reconsideration

The opinion of the court was delivered by FISHER, P.J.A.D.

In summarily deciding this interlocutory appeal and vacating the order under review, we write chiefly to point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.

For context, we briefly recount the circumstances that have brought us here.

Plaintiff filed a complaint in October 2017 in the Somerset vicinage against the Borough of Bound Brook and numerous of its police officers alleging, under various legal theories, that he was physically beaten, at times while handcuffed, when arrested by Bound Brook police officers two years earlier.

Discovery was extended on a number of occasions and proceeded into early February 2020.

Not all discovery was completed and disputes remained about some document requests and unscheduled depositions well into March 2020, when, during a case management conference, plaintiff was invited to move for, among other things: another discovery extension; the right to conduct certain depositions; reconsideration of an order barring Nestor Crespo¹ from testifying at trial because he failed to appear for a subpoenaed deposition; an amendment to the complaint to add a civil conspiracy claim; and the turnover of all use-of-force reports for all Bound Brook police officers.    ‘

On May 14, 2020, the judge denied most of the relief sought but allowed additional time for an exchange of expert reports.

As presently relevant, the judge reasoned that a turnover of the use-of- force reports was barred by an earlier protective order, leave to amend was

barred because it would cause an undue delay, and the order barring Crespo from testifying was authorized by Rule 4:23-2.

In June 2020, plaintiff moved for reconsideration of those three aspects of the May 14, 2020 order.

The June 2020 reconsideration motion was still pending when, for unrelated reasons, venue was transferred first to Mercer County and then to Middlesex County.

The many months that elapsed before venue was finally lodged in Middlesex County, and the inability of the court to conduct a trial in this case, even now, due to the COVID-19 pandemic, have rendered illusory the Somerset judge’s concern nearly a year ago about the delay additional discovery or an amendment to the complaint would have caused if plaintiff’s motion were granted.

Once the case landed in Middlesex County, the pending reconsideration motion was argued on February 19, 2021. On that day, a judge new to the case rendered an oral decision and entered an order denying all relief.

Plaintiff moved for leave to appeal. We granted the motion, advising in our May 5, 2021 order that we would summarily decide this interlocutory appeal on the briefs and appendices submitted. See R. 2:11-2. For the reasons that

follow, we vacate the February 19, 2021 order and remand for the trial judge’s further consideration of plaintiff’s motion.

In his oral decision, the judge invoked numerous legal principles and circumstances that, he said, compelled him to refuse reconsideration of the Somerset judge’s earlier order:

• he was “being asked to reconsider the decision of a coequal member of the judiciary

• “nothing new . . . [was] presented . . . that hadn’t been available to [or] . . . presented to [the Somerset judge]” when deciding the matters questioned by the reconsideration motion;
• plaintiff failed to demonstrate the Somerset judge “acted in an arbitrary, capricious, or unreasonable manner”;
• plaintiff failed to successfully navigate the “narrow corridor” of showing the prior decision was “based upon a palpably incorrect or irrational basis” or the Somerset judge “failed to appreciate the significance of probative, competent evidence,” quoting Cummings v. Bahr, 295 N.J. 374, 384 (App. Div. 1996);
• “the overlay [of] the law of the case,” which the judge described as a doctrine that “instructs courts to respect . . . the rulings of a different judge . . . during the pendency of the given case unless presented by substantially different evidence, new controlling authority, or a showing that the prior ruling was clearly erroneous,” citing State v. K.P.S., 221 N.J. 266, 276 (2015), and Lombardi Masso, 207 N.J. 517, 538 (2011), among others.

The judge rejected defendants’ argument that the reconsideration motion was time-barred by referring to the substantial delay caused by the change in venue.

The problem with the judge’s disposition lies with his application of principles relevant only when a judge is asked to reconsider a final order; these standards are incompatible with a request that an interlocutory order be reconsidered.

 The approach to those requests is significantly different.

We start with a frequent misconception about the time within which a motion for reconsideration of an interlocutory order can be filed. Defendants have argued that plaintiff was obligated to move for reconsideration within twenty days of the May 14, 2020 order.

That is plainly wrong.

Rule 4:49-2 sets a twenty-day time bar for filing motions to alter or amend “a judgment or order,” a phrase that encompasses only final orders, as Judge Pressler long ago observed in Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 258-59 (App. Div. 1987).  No one has or could possibly argue the May 14, 2020 order is a final order.

Rule 4:49-2 has no application here.

Because Rule 4:49-2 applies only to motions to alter or amend final judgments and final orders, and doesn’t apply when an interlocutory order is challenged, so too the standard described in Cummings v. Bahr – the standard cited by the trial judge that requires a showing that the challenged order was the result of a “palpably incorrect or irrational” analysis or of the judge’s failure to “consider” or “appreciate” competent and probative evidence, 295 N.J. Super. at 384 – did not apply to the motion before the trial judge.

Instead, in ruling on the motion at hand, the judge should have been guided only by Rule 4:42-2 and its far more liberal approach to reconsideration, not the methodology employed when a motion is based on Rule 4:49-2.

Rule 4:42-2 declares that interlocutory orders “shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.”

A motion for reconsideration does not require a showing that the challenged order was “palpably incorrect,” “irrational,” or based on a misapprehension or overlooking of significant material presented on the earlier application.

Until entry of final judgment, only “sound discretion” and the “interest of justice” guides the trial court, as Rule 4:42-2 expressly states.

Nearly forty years ago, Judge Michels said for this court in Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983) that, until the suit ends, a trial court “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.”

Accord Lombardi, 207 N.J. at 536; Johnson, 220 N.J. Super. at 257-59; see also Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198, 248-49 (App. Div. 2015), aff’d o.b., Ginsberg v. Quest Diagnostics, Inc., 227 N.J. 7 (2016); Akhtar v. JDN Props. at Florham Park, LLC, 439 N.J. Super. 391, 399-400 (App. Div. 2015); Johnson v. Benjamin Moore & Co., 347 N.J. Super. 71, 82 (App. Div. 2002); Hart v. City of Jersey City, 308 N.J. Super. 487, 497-98 (App. Div. 1998).2

By invoking Cummings, the trial judge applied the wrong standard in denying plaintiff’s motion.

The judge further erred by giving undue deference to the interlocutory rulings of the Somerset judge.

If a prior judge has erred or entered an order that has ceased to promote a fair and efficient processing of a particular case, the new judge owes respect but not deference and should correct the error.

See McBride v. Minstar, Inc., 283 N.J. Super. 471, 481 (Law Div. 1994), aff’d o.b., McBride v. Raichle Molitor, USA, 283 N.J. Super. 422 (App. Div. 1995).

The polestar is always what is best for the pending suit; it is better to risk giving offense to a colleague than to allow a case to veer off course.

Similarly, the law of the case doctrine has no bearing when a party seeks reconsideration of interlocutory discovery orders.

In writing for the Supreme Court, Justice Long recognized the law of the case doctrine “is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue.” Lombardi, 207 N.J. at 539 (emphasis added).

In support, Lombardi cited Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004), aff’d o.b., 184 N.J. 415 (2005), where we held in similar circumstances that the law of the case doctrine does not obligate a court to “slavishly follow an erroneous or uncertain interlocutory ruling.” Interlocutory rulings are “not considered ‘law of the case'” and are “always subject to reconsideration up until final judgment is entered.” Lombardi, 207
N.J. at 539 (citing Johnson, 220 N.J. Super. at 257).

We observe as well there is nothing in our jurisprudence to suggest reconsideration of an interlocutory order is prohibited unless the movant can provide something “new” or unless the prior judge acted in an “arbitrary, capricious or unreasonable” manner.

To the extent it may be discerned from their submissions that defendants rely on these obstacles mistakenly erected by the judge in denying relief, we find their arguments to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

In the final analysis, we urge judges not to view reconsideration motions as hostile gestures.

To be sure, some are frivolous, vexatious or merely repetitious, and some constitute an unwarranted attempt to reverse matters previously decided solely because the prior judge is no longer available.

But some reconsideration motions – those that argue in good faith a prior mistake, a change in circumstances, or the court’s misappreciation of what was previously argued – present the court with an opportunity to either reinforce and better explain why the prior order was appropriate or correct a prior erroneous order.

Judges should view well-reasoned motions based on Rule 4:42-2 as an invitation to apply Cromwell’s rule:

“I beseech you . . . think it possible you may be mistaken.”

The fair and efficient administration of justice is better served when reconsideration motions are viewed in that spirit and not as nuisances to be swatted aside.3

Because the judge applied the wrong standards when ruling on plaintiff’s reconsideration motion, we vacate the February 19, 2021 order and remand for the trial judge’s further consideration of plaintiff’s motion and his exercise of sound discretion in determining whether any of the challenged interlocutory rulings serve,

in the words of Rule 4:42-2, “the interest of justice.”

We offer the following comments for guidance about the part of the motion that concerns the bar on Crespo’s trial testimony.

First, the Somerset judge mistakenly relied on Rule 4:23-2, which applies only to parties who refuse to be sworn or answer a question after being directed to do so, and only to parties who fail to provide discovery after being ordered to do so.

Crespo is not a party.

The failure of a non-party to comply with a subpoena falls within the ambit of Rule 1:9-5, which declares that a person’s “[f]ailure without adequate excuse to obey a subpoena . . . may be deemed a contempt of court.”

Rule 1:9-5 presupposes an approach that doesn’t sanction the parties but instead calls for an order designed to compel the recalcitrant person’s compliance.

A proper motion would have sought an order both finding Crespo in civil contempt and containing other directions designed to compel his future appearance.

Defendant’s motion, however, appears not to have even been served on Crespo,⁴ so he was never given a chance to explain why he did not appear or, if he had no excuse, a chance to comply and purge himself of his contempt.

Further, it is fair to assume Crespo has not felt coerced by the order if he is even aware of it; the order simply bars his trial testimony.

The Somerset judge’s order didn’t motivate Crespo to comply; the judge took Crespo off the hook and allowed the burden of his contempt to fall on whichever party may have benefitted from his trial testimony.

When the trial judge takes up again the reconsideration motion, he should consider that the disposition of the original Crespo motion should be driven by a desire to compel Crespo’s compliance.

See, e.g., Catena v. Seidl, 65 N.J. 257, 262 (1974).

The judge should consider what is gained by perpetuating an order forbidding Crespo from testifying and whether any party would be prejudiced if the order was vacated and replaced with an order designed to compel Crespo’s compliance with the subpoena.

We also point out the possibility that the issue may still have to be considered even if, after reconsideration, the Crespo order remains in place.

For example, if a party is ultimately able to secure Crespo’s appearance at trial, the court would still be required to revisit the matter because of the court’s overriding interest in searching for the truth.

See Graham v. Gielchinsky, 126 N.J. 361, 371-72 (1991).

If Crespo has personal knowledge of facts relevant to the case, his failure to previously appear for a deposition should not shut the door to the presentation of that relevant evidence absent undue prejudice to the parties.

If he were to suddenly appear at trial, the judge would be called on to exercise   discretion and determine whether any prejudice caused by the circumstances may be ameliorated.   It is not uncommon in these instances for a trial judge to require that the previously unavailable witness undergo a deposition during a break in the trial prior to his taking the stand.

In reconsidering the order barring Crespo’s trial testimony, the judge should weigh all relevant factors and consider whether the order’s perpetuation serves the ultimate goal of the fair and efficient administration of justice.

R. 1:1-2(a); A.T. v. Cohen, 231 N.J. 337, 351-52 (2017); Ragusa v. Lau, 119 N.J. 276, 283-84 (1990).

We lastly point out that the Somerset judge denied other aspects of plaintiff’s prior motion by way of the May 14, 2020 order because of a concern about the delay that the relief sought would cause.

Unfortunately, despite those intentions, the matter has been delayed for nearly a year by both a slow-moving change of venue and the COVID-19 pandemic.

Due to the cessation of most civil jury trials over the past year, the judge now should consider not only the merit of the parties’ arguments but whether a brief delay caused by the additional discovery or by an amendment of the complaint will further delay the trial of this case.

Undoubtedly, the court has a long queue of trial-ready cases to be dealt with once civil jury trials are resumed.

In ruling on the reconsideration motion, the judge should assess when this case might realistically be sent out to trial.

Once that is ascertained, the judge should then determine whether any of the relief plaintiff seeks will delay the trial.

Vacated and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

You see it all of the time. Someone file a motion with the court regarding discovery and/or asking for various pendente lite relief, like temporary support, temporary parenting time and other things that come up during the pendency of a case.

Judges are human and sometimes they just get it wrong, either because they get the law wrong, misunderstand the facts, miss certain things that are in the paper or for any other reason.

When that occurs, it is common for one or both sides to file a “motion for reconsideration” to correct the mistake.

Some people just file motions for reconsideration because they don’t like the result and want a “second bit of the apple” as is referenced in the case law. That said, often there is a legitimate mistake that one side will take advantage off, often to prolong a case and/or negotiate in bad faith, because they have the so called “bird in the hand.”

Judges seem to hate motions for reconsideration, either because they are overworked and don’t want to have to deal with the motion again, or because they don’t want to have to admit that they may have made a mistake, or for any other reason that a human being may not like to be accused of being wrong.

In these cases, even when the error is clear, motions are often denied and the defendant party is awarded counsel fees – even though there is no bad faith in the simple filing of a motion for reconsideration.

That said, an interesting reported (precedential) decision was released by the Appellate Division today that suggests that maybe, just maybe, many, if not most trial court judges were getting the standard for reconsideration wrong all along.

Specifically, the case of Alfred Lawson v. Officer Jeff Dewar, Et. Al., Judge Fisher starts the opinion, as follows, “In summarily deciding this interlocutory appeal and vacating the order under review, we write chiefly to point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.”

Later in the decision, when addressing the order before the court on appeal, Judge Fisher noted:

The problem with the judge’s disposition lies with his application of principles relevant only when a judge is asked to reconsider a final order; these standards are incompatible with a request that an interlocutory order be reconsidered. The approach to those requests is significantly different .

While this isn’t a family law case, as the same Rules of Court are implicated, it applies equally to family law cases.

Now typically, when a motion to reconsider a pendente lite Order is filed more than 20 days after the entry of an Order, often the defending party opposes it as being filed out of time even though the Rules and case law are pretty clear. I have even seen judges agree with this and refuse to even hear the motion. Judge Fisher definitively rejected this approach and held:

We start with a frequent misconception about the time within which a motion for reconsideration of an interlocutory order can be filed. Defendants have argued that plaintiff was obligated to move for reconsideration within twenty days of the May 14, 2020 order. That is plainly wrong. Rule 4:49-2 sets a twenty-day time bar for filing motions to alter or amend “a judgment or order,” a phrase that encompasses only final orders, as Judge Pressler long ago observed in Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 258-59 (App. Div. 1987). No one has or could possibly argue the May 14, 2020 order is a final order. Rule 4:49-2 has no application here.

Now often – if not all of the time – court’s apply the standard set forth in Cummings v. Bahr to pendente lite reconsideration motions.

That standard requires a showing that the challenged order was the result of a “palpably incorrect or irrational” analysis or of the judge’s failure to “consider” or “appreciate” competent and probative evidence.

Judge Fisher made clear that that is not the proper standard to evaluate motions for reconsideration of non-final, pendente lite Orders and held:

Because Rule 4:49-2 applies only to motions to alter or amend final judgments and final orders, and doesn’t apply when an interlocutory order is challenged, so too the standard described in Cummings v. Bahr … did not apply to the motion before the trial judge. Instead, in ruling on the motion at hand, the judge should have been guided only by Rule 4:42-2 and its far more liberal approach to reconsideration, not the methodology employed when a motion is based on Rule 4:49-2.

Rather, Judge Fisher noted that the proper standard was as follows:

Rule 4:42-2 declares that interlocutory orders “shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” A motion for reconsideration does not require a showing that the challenged order was “palpably incorrect,” “irrational,” or based on a misapprehension or overlooking of significant material presented on the earlier application. Until entry of final judgment, only “sound discretion” and the “interest of justice” guides the trial court, as Rule 4:42-2 expressly states. Nearly forty years ago, Judge Michels said for this court in Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983) that, until the suit ends, a trial court “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.” (internal citations omitted). By invoking Cummings, the trial judge applied the wrong standard in denying plaintiff’s motion.

But Judge Fisher went even further and stated:

We observe as well there is nothing in our jurisprudence to suggest reconsideration of an interlocutory order is prohibited unless the movant can provide something “new” or unless the prior judge acted in an “arbitrary, capricious or unreasonable” manner.” …

In the final analysis, we urge judges not to view reconsideration motions as hostile gestures. To be sure, some are frivolous, vexatious or merely repetitious, and some constitute an unwarranted attempt to reverse matters previously decided solely because the prior judge is no longer available. But some reconsideration motions – those that argue in good faith a prior mistake, a change in circumstances, or the court’s misappreciation of what was previously argued – present the court with an opportunity to either reinforce and better explain why the prior order was appropriate or correct a prior erroneous order. Judges should view well-reasoned motions based on Rule 4:42-2 as an invitation to apply Cromwell’s rule: “I beseech you . . . think it possible you may be mistaken.”The fair and efficient administration of justice is better served when reconsideration motions are viewed in that spirit and not as nuisances to be swatted aside. (Emphasis added)

Moreover, it is not uncommon for more than one judge to be assigned to a case prior to trial, especially, the longer a case goes on.

In fact, every year, a new General Assignment Order is entered by the Chief Justice, and it is not uncommon for judges to move between divisions.

Sometimes, judges move within a division and no longer have the same docket. Other times, judges retire or some conflict requires the judge handling the case to change. When this happens, what usually occurs is that the new judge gives absolute deference to the prior judge’s rulings – even when the first judge is no longer assigned and cannot hear the reconsideration motion.

Often times, I have heard judges say “I am not Judge X’s Appellate Division.” Put another way, deference would preclude getting an order right. Turns out, that approach and attitude is not correct either.

In Alfred Lawson, Judge Fisher stated:

The judge further erred by giving undue deference to the interlocutory rulings of the Somerset judge. If a prior judge has erred or entered an order that has ceased to promote a fair and efficient processing of a particular case, the new judge owes respect but not deference and should correct the error. See McBride v. Minstar, Inc., 283 N.J. Super. 471, 481 (Law Div. 1994), aff’d o.b., McBride v. Raichle Molitor, USA, 283 N.J. Super. 422 (App. Div. 1995). The polestar is always what is best for the pending suit; it is better to risk giving offense to a colleague than to allow a case to veer off course.

Similarly, the law of the case doctrine has no bearing when a party seeks reconsideration of interlocutory discovery orders. In writing for the Supreme Court, Justice Long recognized the law of the case doctrine “is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue.” Lombardi, 207 N.J. at 539 (emphasis added). In support, Lombardi cited Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004), aff’d o.b., 184 N.J. 415 (2005), where we held in similar circumstances that the law of the case doctrine does not obligate a court to “slavishly follow an erroneous or uncertain interlocutory ruling.”Interlocutory rulings are “not considered ‘law of the case’” and are “always subject to reconsideration up until final judgment is entered.” Lombardi, 207 N.J. at 539 (citing Johnson, 220 N.J. Super. at 257). (Emphasis added).

While this ruling may lead to a rash of new reconsideration motions – and maybe rightly so – perhaps more importantly, trial judges will heed Judge Fisher’s words and correct mistaken Orders as opposed to swatting aside reconsideration motions on principle.