ALTICE USA, INC. v. NEW JERSEY BOARD OF PUBLIC UTILITIES

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

ALTICE USA, INC., :

: Case No.: 3:19-cv-21371-BRM-ZNQ

Plaintiff, :

:

v. :

: OPINION

NEW JERSEY BOARD OF PUBLIC :

UTILIES, et al. :

:

Defendants. :

____________________________________:

Before this Court is Defendants’ motion for reconsideration (ECF No. 33) of this Court’s

order (ECF No. 31). Plaintiff Altice USA, Inc. (“Altice”) opposes the motion. (ECF No. 35.)

Having reviewed the parties’ submissions filed in connection with the motion and having declined

to hear oral argument pursuant to Federal Rule of Procedure 78(b), for the reasons set forth below

and for good cause having been shown, Defendants’ motion for reconsideration is DENIED.

I. FACTUAL BACKGROUND

On December 13, 2019, Altice filed for preliminary and permanent injunctive relief against

the New Jersey Board of Public Utilities (“BPU”) and its president, Joseph Fiordaliso (“President

Fiordaliso”). (ECF No. 1.) Both Altice (ECF No. 11, at 4-7) and Defendants (ECF No. 8, at 10-

14) briefed whether a preliminary injunction was appropriate. A week later, the Court set a show

cause hearing for December 23, 2019, and ordered President Fiordaliso to be present. (ECF No.

10.) The day before the hearing, the Court cancelled the hearing, with notice via e-mail to all

parties. (ECF No. 12.) The next day—the day on which the hearing was originally scheduled—

the Court dismissed the case without ruling on the appropriateness of a preliminary injunction,

holding that sovereign immunity barred the lawsuit and that the exception to sovereign immunity

for actions seeking prospective injunctive relief to end an ongoing or continuing violation of

federal law (the “Young Exception”) did not apply because an injunction against only President

Fiordaliso, but not any of the other BPU board members, would not suffice to provide the relief

Altice sought. See Altice USA, Inc. v. N.J. Bd. of Pub. Utils., Civ. No. 19-21371, 2019 WL

7047207, at *2-3 (D.N.J. Dec. 23, 2019) (citing Ex parte Young, 209 U.S. 123 (1908)).

Following the dismissal, Altice sought permission to file an amended complaint to remedy

the original complaint’s deficiency. (ECF No. 15.) This Court granted Altice’s request, and

ordered Altice to file “a formal motion for reconsideration.” (ECF No. 16.) Altice subsequently

filed an amended complaint, naming all the BPU board members in order to fit the case within the

Young Exception. (ECF No. 17.) Altice also filed a motion—which, pursuant to this Court’s

order, Altice styled as a “Motion for Reconsideration”—requesting this Court grant preliminary

injunctive relief. (ECF No. 18-1, at 11-12.) On January 10, 2020, the Court held oral argument

on Altice’s motion, at which counsel for Defendants both spoke at length about whether a

preliminary injunction was appropriate and spoke briefly about whether Altice should have to post

a bond if the Court agreed to grant a preliminary injunction. (ECF No. 23.) This Court (1) treated

Altice’s filing as a motion for a preliminary injunction, (2) found that the amended complaint

naming all BPU’s board members qualified the case for the Young Exception, and (3) announced

its intent to grant a preliminary injunction subject to Altice posting a $2.11 million bond. See

Altice USA, Inc. v. N.J. Bd. of Pub. Utils., Civ. No. 19-21371, 2020 WL 359398, at *3-10 (D.N.J.

Jan. 22, 2020). The Court later issued the preliminary injunction after requesting briefing on the

injunction’s exact language. (ECF No. 31.)

Defendants moved for reconsideration of the Court’s order granting the preliminary

injunction. (ECF No. 33.)

II. LEGAL STANDARD

Motions for reconsideration are proper pursuant to this District’s Local Civil Rule 7.1(i) if

there are “matters or controlling decisions which counsel believes the Judge . . . has overlooked.”

L.Civ.R. 7.1(i); Dunn v. Reed Grp., Civ. No. 08-1632, 2010 WL 174861, at *1 (D.N.J. Jan 13,

2010). The comments to that Rule make clear, however, that “reconsideration is an extraordinary

remedy that is granted ‘very sparingly.’” L.Civ.R. 7.1(i) cmt. 6(d) (quoting Brackett v. Ashcroft,

Civ. No. 03-3988, 2003 WL 22303078, *2 (D.N.J. Oct. 7, 2003)). The Third Circuit has held the

scope of a motion for reconsideration is “extremely limited.” Blystone v. Horn, 664 F.3d 397, 415

(3d Cir. 2011).

“Such motions are not to be used as an opportunity to relitigate the case; rather, they may

be used only to correct manifest errors of law or fact or to present newly discovered evidence.”

Id. A court commits clear error of law “only if the record cannot support the findings that led to

the ruling.” ABS Brokerage Servs. v. Penson Fin. Servs., Inc., Civ. No. 09-4590, 2010 WL

3257992, at *6 (D.N.J. Aug. 16, 2010) (citing United States v. Grape, 549 F. 3d 591, 603-04 (3d

Cir. 2008)). “Thus, a party must . . . demonstrate that (1) the holdings on which it bases its request

were without support in the record, or (2) would result in ‘manifest injustice’ if not addressed.”

Id. In short, “[m]ere ‘disagreement with the Court’s decision’ does not suffice.” ABS Brokerage

Servs., 2010 WL 3257992, at *6 (quoting P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161

F. Supp. 2d 349, 353 (D.N.J. 2001)); see also United States v. Compaction Sys. Corp., 88 F. Supp.

2d 339, 345 (D.N.J. 1999) (“Mere disagreement with a court’s decision normally should be raised

through the appellate process and is inappropriate on a motion for [reconsideration].”); Florham

Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988); Schiano v. MBNA

Corp., No. 05-1771, 2006 WL 3831225, at *2 (D.N.J. Dec. 28, 2006) (“Mere disagreement with

the Court will not suffice to show that the Court overlooked relevant facts or controlling law, . . .

and should be dealt with through the normal appellate process . . . .”) (citations omitted).

III. ANALYSIS

Defendants argue that this Court should reconsider its order granting a preliminary

injunction. This Court disagrees.

A. Motion for Reconsideration vs. Motion for a Preliminary Injunction

First, Defendants argue that this Court should not have treated the motion for

reconsideration as a motion for a preliminary injunction. This Court disagrees. This Court looks

to a motion’s substance, not its form, to determine whether to treat a filing as a motion for

reconsideration or a motion for a preliminary injunction. See Ortho Pharm. Corp. v. Amgen, Inc.,

887 F.2d 460, 463 (3d Cir. 1989); see also Fed. R. Civ. P. 1 (“These rules . . . should be construed,

administered, and employed by the court and the parties to secure the just, speedy, and inexpensive

determination of every action and proceeding.”). Altice’s motion for reconsideration was, in

substance, a motion for a preliminary injunction: the motion expressly contemplates that the Court

grant a preliminary injunction if the Court finds that sovereign immunity does not bar the action.

(ECF No. 18-1, at 11-12.) Because Altice’s motion requested preliminary injunctive relief, this

Court rejects Defendants’ argument that the Court should not have treated the motion for

reconsideration as a motion for a preliminary injunction.

Defendants also argue that they were not given an opportunity to brief the preliminary

injunction issue. The Court disagrees. First, Defendants briefed the appropriateness of a

preliminary injunction when they initially responded to Altice’s original complaint. (ECF No. 8,

at 10-14.) Second, the Court explicitly granted Defendants an opportunity to make arguments in

writing after Altice filed its motion for reconsideration. (ECF No. 16.) Defendants did not make

any new written arguments concerning the issuance of a preliminary injunction, but did incorporate

arguments from their prior filing (“Defendants otherwise rely on the original opposition [(ECF No.

8)] to the Motion for Injunctive Relief . . . .”) which did argue that the Court should not grant a

preliminary injunction. (ECF No. 19.) Finally, Defendants spoke at length during oral argument

concerning why this Court should not grant Altice’s request for a preliminary injunction. (ECF

No. 23.) The Court considered all of Defendants’ arguments—both their written briefs and their

presentation at oral argument—before deciding to issue a preliminary injunction. Given the

multiple opportunities1 the Court provided Defendants to brief the Court concerning the issuance

of a preliminary injunction, this Court cannot agree that Defendants were denied an opportunity to

be heard on the issue.

B. Amended Complaint vs. Original Complaint

Defendants also argue that the Court should not have considered the amended complaint

when it decided the Altice’s motion for reconsideration, because the Court’s order—from which

Altice moved for reconsideration—concerned only the original complaint, not the amended

complaint. This fact does not entitle Defendants to relief. Altice’s request (ECF No. 15) to file an

amended complaint, combined with this Court’s order (ECF No. 16) permitting Altice to do so and

directing Altice to move for reconsideration, clearly contemplate that the amended complaint

would serve as a cure for the Young Exception deficiency this Court identified in its first opinion.

Defendants also argue that this Court could not have considered the amended complaint

1 The Court notes that Defendants spent considerable time arguing that President Fiordaliso’s

appearance was inappropriate. (ECF No. 20.) The Court ultimately excused President Fiordaliso

from attending proceedings in his capacity as an “individual[] with settlement/decision making

authority.” (ECF No. 21.) However, President Fiordaliso is still a named party.

until it was properly served. This argument is waived because Defendants failed to timely

challenge service of process, despite litigating the issue of the preliminary injunction against

unserved defendants. See Fed. R. Civ. P. 12(h)(1); cf. In re Asbestos Prods. Litig. Liab. Litig. (No.

VI), 921 F.3d 98, 106 (3d Cir. 2019) (holding, with regard to a different defense which is also

waivable under Rule 12(h)(1), that “Behavior that is consistent with waiver, and which indicates

an intent to litigate the case on the merits, is sufficient to constitute waiver, regardless of whether

the parties also express an intent to preserve the defense.”); In re Tx. E. Transmission Corp. PCB

Contamination Ins. Coverage Litig., 15 F.3d 1230, 1236 (3d Cir. 1994) (holding that a party waives

a personal jurisdiction defense—which, like improper service of process, is also waivable under

Rule 12(h)(1)—by “actually litigat[ing] the underlying merits”).

Even if not waived, Altice’s compliance with Rule 5’s procedures for service of process

on BPU and President Fiordaliso, combined with the close relationship between the properly

served defendants and the un-served new defendants, creates a poor case for vacating the

preliminary injunction for improper service of process on the un-served new defendants. “[A]

pleading filed after the original complaint” has less strict rules for service than the original

complaint. Fed. R. Civ. P. 5(a)(1)(B). Service of an amended complaint may be made by “sending

it to a registered user by filing it with the court’s electronic-filing system.” Fed. R. Civ. P.

5(b)(2)(E). “[S]ervice is complete upon filing or sending . . . .” Id.; see also La. Counseling &

Family Servs., Inc. v. Mt. Fuji Japanese Restaurant, Civ. No. 08-6143, 2012 WL 4049937, at *6

(D.N.J. Aug. 9, 2012) (“Plaintiff’s electronic filing of the Amended Complaint was sufficient to

effectuate service.”). Electronic service of the complaint is therefore appropriate as to BPU and

President Fiordaliso. Rule 5 service does not apply to the other board members, who were not

previously served with a summons. See Linwood Trading Ltd. v. E.S. Recycling Express Corp.,

Civ. No. 14-6332, 2017 WL 1882490, at *4 (D.N.J. May 9, 2017). However, given that the new

defendants have the same counsel as the existing defendants BPU and President Fiordaliso, are all

board members of the agency (BPU) that did receive proper service, and are joined as defendants

merely as a formality to satisfy the strictures of the Young Exception, improper service of process

does not require this Court to vacate its preliminary injunction.

C. Opportunity to Present Evidence Concerning Security for Potentially

Wrongful Injunction

Defendants also contend that they were not given an opportunity to present evidence on

the amount of any monetary bond or the need for other non-monetary conditions to be imposed on

Altice following the grant of a preliminary injunction. The Court rejects this argument. As

discussed above, Defendants both had notice and were actually aware that Altice was seeking a

preliminary injunction. See part III.A., supra. Any order granting a preliminary injunction

necessarily carries with it the attendant requirement that the movant provide security against a

potentially wrongful injunction. See Fed. R. Civ. P. 56(c); Tilden Rec. Vehs., Inc. v. Belair, 786

F. App’x 335, 343 (3d Cir. 2019). In fact, Defendants brought up security at oral argument. See

Altice USA, 2020 WL 359398, at *10 n.12. Had Defendants wanted to present evidence

concerning the amount of any bond or request that the Court impose non-monetary conditions on

Altice before granting the preliminary injunction, Defendants could have requested to do so either

in their written briefing or at oral argument when counsel stated “that perhaps there would be

necessarily some type of financial ramification to that that should be considered by the Court.”

(ECF No. 34, at 23:25-24:1.) Defendants’ failure to do so is not a ground for vacating the

preliminary injunction.

D. Reargument of Other Matters

Finally, Defendants ask the Court to vacate its preliminary injunction because the Court’s

decision erred on the merits. (ECF No. 33, at 11-23). Defendants either could have made, or

actually made, each of these arguments before the Court issued the preliminary injunction. None

of these arguments constitute valid grounds for reconsideration. See Compaction Sys., 88 F. Supp.

2d at 345; Florham Park Chevron, 680 F. Supp. at 163 (D.N.J. 1988); Schiano, 2006 WL 3831225,

at *2.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion for reconsideration is DENIED. An

appropriate order accompanies this Opinion.

Dated: March 10, 2020 /s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE