IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ROBERT MITCHELL,

 Plaintiff,

v.

TOWNSHIP OF WILLINGBORO

MUNICIPALITY GOVERNMENT, et

al.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-1664 (JBS/JS)

MEMORANDUM OPINION

SIMANDLE, Chief District Judge:

This matter is before the Court upon the motion of Defendant

Jeffrey Perez to alter judgment. [Docket Item 56.] Specifically,

Defendant Perez asks the Court to reconsider its denial of his

motion for summary judgment [Docket Items 54 & 55] and instead

enter an order granting summary judgment and dismissing Plaintiff

Robert Mitchell's complaint. The Court finds as follows:

1. The instant action arises out of a traffic stop on July

3, 2010 when Defendant Officer Jeffrey Perez ("Defendant")

stopped Plaintiff Robert Mitchell ("Plaintiff") after receiving a

9-1-1 dispatch with a description of a suspicious vehicle. 

According to the 9-1-1 dispatch transcript, on July 3, 2010 at

approximately 7:32 PM, a resident on Hampton Lane in Willingboro

made a 9-1-1 call and reported that a dark blue Acura with no

license plates had been speeding up and down Hampton Lane. 

Officer Perez then received a call from dispatch which relayed

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 1 of 11 PageID: 702
the information from the 9-1-1 call. Specifically, dispatch told

the Defendant that "a dark blue Acura with no plates" was driving

up and down Hampton Lane at a high rate of speed. Within

seconds, Defendant Perez observed a "teal Honda Accord" with no

front license plate, which passed him on Harrington Lane. 

Defendant Perez reported to dispatch that there were "three or

four occupants" in the car and that the vehicle had a

Pennsylvania license plate. Defendant Perez noted the vehicle

"looks like a blue Honda Accord." Defendant Perez then initiated

an investigatory stop of the Plaintiff's vehicle. This stop

resulted in Plaintiff's arrest because Plaintiff had two

outstanding warrants and had a suspended Pennsylvania driver's

license. 

2. Plaintiff filed the instant action alleging his Fourth

Amendment rights were violated. Plaintiff is an African American

and alleges the 9-1-1 dispatch did not create the requisite

reasonable suspicion to stop his car because his vehicle did not

match the given description. 

3. The Court dismissed several defendants after its sua

sponte screening of the complaint pursuant to 28 U.S.C. §

1915(e). However, the Court found the Plaintiff had sufficiently

stated a viable Fourth Amendment claim against Defendant Perez. 

[Docket Item 5.] Defendant Perez answered the complaint and

subsequently moved to dismiss the complaint on the basis of

2

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 2 of 11 PageID: 703
qualified immunity. [Docket Item 34.] The Plaintiff then moved

for summary judgment. [Docket Item 37.] In response, Defendant

Perez filed a cross motion for summary judgment which also argued

he was entitled to qualified immunity. [Docket Item 40.]

4. The Court issued an opinion and order denying all three

motions. [Docket Item 54 & 55.] The Court denied Defendant

Perez's motion to dismiss because the Plaintiff's complaint

sufficiently stated a claim against Defendant Perez for violating

his Fourth Amendment rights and qualified immunity was not

established on the face of the complaint. The Court then denied

Plaintiff's motion for summary judgment because it was in essence

seeking discovery sanctions against Defendant Perez and the

Plaintiff did not establish the requisite factors under Fed. R.

Civ. P. 37(b) for the imposition of default judgment. Finally,

the Court denied Defendant Perez's motion for summary judgment

because the record did not establish that he was entitled to

qualified immunity.

5. Specifically, in denying summary judgment, the Court

concluded that the Plaintiff alleged a deprivation of his Fourth

Amendment rights and that it would have been clear to a

reasonable officer in Defendant Perez's situation that reasonable

suspicion did not exist and consequently, stopping Plaintiff's

vehicle would be unlawful. In reaching this conclusion, the

Court reasoned: 

3

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 3 of 11 PageID: 704
[S]ince the law was clear at the time of the

incident that reasonable suspicion was required to

conduct an investigatory stop, Defendant Perez can be

granted qualified immunity only if his conduct in

stopping Plaintiff's car was a violation a reasonable

officer could have committed. Viewing the facts in the

light most favorable to Plaintiff as the non-moving

party, the court concludes a reasonable officer would not

have conducted an investigatory stop of the Plaintiff in

this situation and a jury could conclude reasonable

suspicion did not exist. 

In looking at the factual record in the aggregate,

there are several inconsistencies between the suspicious

vehicle reported to dispatch and the Plaintiff's car such

that a reasonable officer could conclude that reasonable

suspicion did not exist to conduct an investigatory stop. 

First, the record establishes that, in communicating to

Officer Perez before any vehicle was pulled over,

dispatch described the offending vehicle as a dark blue

Acura with no license plates which was driving up and

down Hampton Lane at an excessive rate of speed. By

Defendant's own admission, he saw Plaintiff's vehicle

"seconds" after the dispatch call. (Statement of Material

Facts not in Dispute ¶9.) It is undisputed by the

parties that Plaintiff's vehicle was not speeding. If a

reasonable officer did see Plaintiff's car just seconds

after the dispatch call, he would have expected the

vehicle to be traveling at a high rate of speed as that

was the unlawful conduct reported by dispatch. Since

Plaintiff's car was traveling within the speed limit, a

reasonable officer would have concluded that this car was

not the offending vehicle reported to dispatch and would

not have conducted an investigatory stop.

This is not the only inconsistency between

Plaintiff's vehicle and the description of the vehicle

given by dispatch. Plaintiff's vehicle was teal, not

dark blue, and was a Honda Accord, not an Acura. 

Plaintiff's vehicle was not on Hampton Lane but he was

driving on an adjacent street, which is not probative

either way. Plaintiff's vehicle had a rear Pennsylvania

license plate whereas the offending car was reported to

have no tags. Finally, Plaintiff was traveling with two

passengers (his son and son's girlfriend) and dispatch

did not report that the driver of the offending vehicle

had any additional occupants.

[Docket Item 54 at 19-21.] Therefore, the Court concluded that a

4

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 4 of 11 PageID: 705
reasonable officer under these circumstances would have known

that stopping Plaintiff's vehicle was unlawful because reasonable

suspicion did not exist. 

6. Defendant Perez then filed the instant motion to alter

judgment pursuant to Fed. R. Civ. P. 59(e). Defendant Perez

argues that the opinion by the Court contained "several

oversights with respect to the factual review of the evidence in

the record." (Def.s' Br. at 1.) Defendant Perez contends that

the Court's view of the facts in the record created an artificial

picture of what happened during the vehicular stop. In addition,

Defendant Perez argues the Court misapplied the applicable legal

standard to the facts at issue. Defendant Perez does not

maintain that the Court cited or relied on inapplicable case law. 

Rather, Defendant Perez relies on a New Jersey Supreme Court

case, State v. Golotta, 178 N.J. 205, 213 (2003), and argues that

a police officer in a similar situation to Defendant Perez was

entitled to qualified immunity. Consequently, Defendant Perez

now contends that this Court held him "to a higher standard than

those who have been excused before him for the same or similar

actions." (Def.'s Br. at 8.) Defendant Perez did not make this

argument in his initial moving papers or analyze the factual

scenario in Golotta as compared to his own case when he filed his

initial motion for summary judgment. Defendant Perez urges the

Court to reverse its denial of summary judgment and grant him

5

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 5 of 11 PageID: 706
qualified immunity.

7. Local Civil Rule 7.1(i) governs the Court’s review of

Plaintiff’s motion for reconsideration. Rule 7.1(i) requires the

moving party to set forth the factual matters or controlling

legal authorities it believes the Court overlooked when rendering 

its initial decision. L. Civ. R. 7.1(i). To prevail on a motion

for reconsideration, the movant must show: 

(1) an intervening change in the controlling law; (2)

the availability of new evidence that was not

available when the court . . . [rendered the judgment

in question]; or (3) the need to correct a clear error

of law or fact or to prevent manifest injustice. 

Max’s Seafood Café ex rel. Lou-Ann, Inc., v. Quinteros, 176 F.3d

669, 677 (3d Cir. 1999); see also Tehan v. Disability Management

Services, Inc., 111 F. Supp. 2d 542, 549 (D.N.J. 2000). To

prevail under the third prong, the movant must show that

“dispositive factual matters or controlling decisions of law were

brought to the court’s attention but not considered.” P.

Schoenfeld Asset Management LLC v. Cendant Corp., 161 F. Supp. 2d

349, 353 (D.N.J. 2001) (internal quotations and citations

omitted). The standard of review involved in a motion for

reconsideration is high and relief is to be granted sparingly. 

United States v. Jones, 158 F.R.D. 309, 314 (D.N.J.1994);

Maldonado v. Lucca, 636 F. Supp. 621, 629 (D.N.J. 1986). 

8. As an initial matter, Defendant Perez improperly filed

this motion as a motion to alter or amend a judgment pursuant to

6

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 6 of 11 PageID: 707
Rule 59(e). The provisions of Rule 59 are designed to address

orders rendering a final judgment, not interlocutory orders

denying summary judgment. Because no final judgment has been

entered in this action pursuant to Rule 54(b), the provisions of

Rule 59, and its 28-day time limit, are inapplicable here. 

Juzwin v. Amtorg Trading Corp., 718 F. Supp. 1233, 1235 (D.N.J.

1989). The proper procedural mechanism for reconsideration of

this interlocutory order is Local Civil Rule 7.1(i). Motions

under L. Civ. R. 7.1(i) must be served and filed within 14 days

after the entry of the order. In this case, the Defendant filed

his motion for reconsideration 28 days after the court entered

its order denying summary judgment. Consequently, Defendant

Perez's motion for reconsideration is untimely as it was filed

outside the fourteen-day period prescribed by L. Civ. R. 7.1(i)

and can be denied on this ground alone. United States v. Balter,

No. 93-536-01, 2010 U.S. Dist. LEXIS 75334 (July 26, 2010), aff'd

410 Fed. App. 428 (3d Cir. 2010)(denying motion for

reconsideration which was filed 30 days after order was entered

and 17 days after order was received by the pro se party moving

for reconsideration). Therefore, the court will deny Defendant's

motion as untimely.

9. Notwithstanding the timeliness issue, the Defendant's

motion for reconsideration lacks merit. The Defendant does not

point to any intervening change in the law or new evidence that

7

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 7 of 11 PageID: 708
was not available when the court rendered its decision. Further,

the Defendant does not argue that the court overlooked important

facts or controlling decisions. 

10. Rather, Defendant Perez argues the court improperly

considered Plaintiff's allegation in his complaint that dispatch

identified a four-door vehicle and Plaintiff's vehicle was twodoors when in actuality the record showed the 9-1-1 caller did

not identify the number of doors on the vehicle. This argument

is without merit as the court considered this allegation only in

deciding Defendant's motion to dismiss [Docket Item 34]. On a

motion to dismiss, the court must take all allegations in the

pleadings as true. The court did not consider this allegation in

deciding Defendant Perez's motion for summary judgment and

therefore this is not a proper basis for reconsideration.

11. Defendant Perez next argues that the following facts,

while true, do not support the court's denial of qualified

immunity: (1) the offending vehicle described by dispatch had no

tags whereas Plaintiff's vehicle had a rear Pennsylvania license

plate; (2) Plaintiff's vehicle was not observed speeding by

Defendant Perez whereas the offending vehicle was reported

speeding down an adjacent street; (3) the offending vehicle was

described as a dark blue Acura and the Plaintiff's vehicle was a

teal Honda Accord; (4) Plaintiff's vehicle had 2 passengers in it

while dispatch did not indicate that the offending vehicle had

8

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 8 of 11 PageID: 709
any passengers. The Defendant does not argue that these facts

are not true or unsupported by the record. Instead, Defendant

Perez disagrees with the court's analysis of these facts and the

court's conclusion that "[t]here were essentially no similarities

between the Mitchell Honda and the Acura the police were

seeking." [Docket Item 54 at 21.] The Defendant argues that the

offending vehicle described by dispatch was not so dissimilar to

Plaintiff's vehicle and that a reasonable officer would have

conducted an investigatory stop. 

12. Ultimately, the Defendants disagree with the court's

interpretation of the evidence. This is insufficient to support

a motion for reconsideration. "A party seeking reconsideration

must show more than a disagreement with the Court's decision, and

recapitulation of the cases and arguments considered by the court

before rendering its original decision fails to carry the moving

party's burden." See G-69 v. Degnan, 748 F. Supp. 274, 275

(D.N.J. 1990).

12. To the extent the Defendant makes new arguments for

qualified immunity based on State v. Golotta, this is improper

for a motion for reconsideration. This case was decided by the

New Jersey Supreme Court in 2003 and was readily available to the

Defendant when he filed his brief for summary judgment. The

Defendant offers no explanation for his failure to make these

arguments in his initial moving papers. 

9

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 9 of 11 PageID: 710
13. In addition, Golotta is distinguishable from the facts

of this case. The officer in Golotta stopped a vehicle pursuant

to a 9-1-1 call and the New Jersey Supreme Court held there was

sufficient corroboration between the suspicious vehicle pulled

over by the officer and the vehicle described by the 9-1-1 caller

to justify the stop. In particular, the 9-1-1 caller identified

a blue pick up truck driving erratically on Route 206 with a

license plate number VM-407B. As the police officer approached

Route 206, the officer observed a blue-pick up truck with the

license plate number VM-407V. The Supreme Court found there was

reasonable suspicion to conduct an investigatory stop even though

the officer did not observe the vehicle driving erratically

because the vehicle matched the 9-1-1 caller's description of the

color of the vehicle, type of vehicle, license plate number (with

the minor exception of the last letter) and approximate location. 

Golotta, 178 N.J. at 209-212; 223-224. In the instant matter,

Officer Perez received a dispatch call identifying a dark blue

Acura with no license plates speeding up and down Hampton Lane. 

Defendant Perez then pulled over a vehicle which was a teal Honda

Accord with a rear Pennsylvania license plate on an adjacent

street that was not speeding. Unlike Golotta, where there were

several strong similarities between the description of the

vehicle and its license plate number and the vehicle ultimately

stopped by the police, here Defendant Perez pulled over a vehicle

10

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 10 of 11 PageID: 711
which did not match any of the descriptive features identified by

the 9-1-1 caller. The basic similarity was that the Mitchell

vehicle was an automobile being driven on a nearby street. 

Therefore, Defendant's reliance on Golotta is without merit.

14. Accordingly, the Defendant's motion for reconsideration

will be denied. Ultimately, based on facts to be addressed at

trial, a jury will determine whether the police officer had a

reasonable, though mistaken, basis for stopping the Mitchell

vehicle. This Court makes no determination. The accompanying

Order will be entered.

March 22, 2013 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge 

11

Case 1:11-cv-01664-JBS-JS Document 59 Filed 03/22/13 Page 11 of 11 PageID: 712