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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

LATREICA SMITH, MATTIE HALLEY, 

and BARRY WEIN, On Behalf of 

Themselves and All Others Similarly 

Situated, 

Plaintiffs,

v.

HONEYWELL INTERNATIONAL INC. 

and PPG INDUSTRIES, INC.,

Defendants.

Civil Action No. 2:10-cv-03345 (SDW)

OPINION

 May 13, 2011

WIGENTON, District Judge.

Before the Court is Defendant‟s, Honeywell International Inc. (“Honeywell” or 

“Defendant”), Motion for Reconsideration of February 28, 2011 Order on Motion to Dismiss or, 

in the Alternative, Certification for Interlocutory Appeal (“Motion”). This Court has jurisdiction 

pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b). This Court, 

having considered the parties‟ submissions, decides this matter without oral argument pursuant 

to Federal Rule of Civil Procedure 78. For the reasons stated below, this Court DENIES

Honeywell‟s Motion.

LEGAL STANDARD

Under Local Civil Rule 7.1, a party may serve and file a motion for reconsideration 

“within 14 days after the entry of the order or judgment on the original motion by the Judge or 

Magistrate Judge” and concisely set forth the “matter or controlling decisions which the party 

believes the Judge or Magistrate Judge has overlooked.” L. Civ. R. 7.1(i). In order for a court 

to alter or amend a judgment, the party seeking reconsideration must establish one of the 

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following: “(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.” Max's Seafood Cafe, By 

Lou-Ann, Inc. v. Max Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Reconsideration is granted 

sparingly as it is considered an extraordinary remedy. J.J.C. Boats, Inc. v. Hlywiak, 573 F. Supp. 

2d 871, 873 (D.N.J. 2008). Thus, such a motion will be granted where “dispositive factual 

matters or controlling decisions of law” were previously presented to but not considered by the 

court. Ivan v. County of Middlesex, 612 F. Supp. 2d 546, 551 (D.N.J. 2009); see also Tehan v. 

Disability Mgmt. Servs., 111 F. Supp. 2d 542, 550 (D.N.J. 2000). A motion for reconsideration 

will not be granted where the moving party is simply seeking to set forth the reasons why it 

disagrees with the court‟s decision or is asking “the court to analyze the same facts and cases it 

had already considered in reaching its original decision.” Tehan v. Disability Mgmt. Servs., 111 

F. Supp. 2d at 550. 

DISCUSSION

Motion for Reconsideration

As previously stated in this Court‟s February 28, 2011 Opinion (“Opinion”), when 

dealing with the tolling of environmental claims the question is “whether there are enough 

indications of environmental contamination to put the plaintiff on reasonable notice of a need to 

investigate further.” New W. Urban Renewal Co. v. Viacom, Inc., 230 F. Supp. 2d 568, 573 

(D.N.J. 2002). Defendant agrees that this Court set forth the “the correct legal standard” but 

argues that this legal standard was misapplied. Essentially, Defendant disagrees with this 

Court‟s legal analysis.

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Defendant further contends that this Court inappropriately accepted Plaintiff‟s legal 

conclusions; applied the actual notice test rather than the constructive notice test; and finally 

argues that the documents cited within the February 28, 2011 Opinion are insufficient to support 

this Court‟s conclusions. To clarify, this Court‟s agreement with Plaintiffs‟ legal conclusions is

not due to a misapplication of the law or because Plaintiffs‟ conclusions were simply accepted as 

correct but because this Court‟s legal analysis led to the determination that Plaintiffs‟ claims 

were not barred by statutes of limitations. Therefore, since Defendant has not put forth any legal 

standards that this Court has overlooked but instead disagrees with the application of the law, the 

motion for reconsideration will be denied. Further, Defendant has not detailed “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.”

As far as the legal standard for motions to dismiss, this Court primarily cited Phillips v. 

County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Defendant argues that the Opinion did 

not cite Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 

(2007); Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010); and Fowler v. UPMC 

Shadyside, 578 F.3d 203 (3d Cir. 2009) 1. In addition, Defendant states that “the allegations on 

which the Opinion relied are little more than formulatic recitations of elements” and further 

asserts that the allegations were not well-pleaded. Defendant indicates disagreement with this 

 

1 The United States Court of Appeals for the Third Circuit continues to cite to Phillips in 

conjunction with Twombly and has not indicated that Phillips is not in line with Twombly. See In 

re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010); see also Cotter v. Newark Hous. 

Auth., 2011 U.S. App. LEXIS 7287 (3d Cir. Apr. 6, 2011).

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Court‟s treatment of the conspiracy claim and argues that the use of the word “possibility” in a 

quotation in the Opinion exemplifies the inconsistency with Twombly and the “plausibility” 

standard. 

Defendant chooses to ignore that this Court clearly states in the analysis that “Plaintiffs 

provide enough facts that when coupled with the other assertions raise a plausible claim for 

conspiracy and put Defendants on notice of the underlying wrongs and agreement alleged by 

Plaintiffs.” Defendant does not indicate that the cases cited by this Court have somehow been 

overruled or that they are contrary to the holdings in the above named cases. Defendant‟s 

arguments have already been considered by this Court.

A motion for reconsideration cannot be based merely on a party‟s disagreement with the 

court‟s conclusions. As with the arguments raised in regard to the application of the New Jersey 

legal standard for constructive notice, Defendant has not put forth a change in the controlling 

law, new evidence, or a clear error of law. Therefore, reconsideration is denied as to this point as 

well. 

Request for Interlocutory Appeal

 Generally, “a party is entitled to a single appeal, to be deferred until final judgment has 

been entered.” Mohawk Indus. v. Carpenter, 130 S. Ct. 599, 605 (2009) (quoting Digital 

Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)). The Supreme Court has 

indicated that “[p]ermitting piecemeal, prejudgment appeals, . . . undermines „efficient judicial 

administration‟ and encroaches upon the prerogatives of district court judges, who play a „special 

role‟ in managing ongoing litigation.” Id. The Court further advised that “immediate appeal 

must therefore be sufficiently strong to overcome the usual benefits of deferring appeal until 

litigation concludes.” Id.

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However, 28 U.S.C. § 1292(b) provides for interlocutory appeals when an order 

“involves a controlling question of law as to which there is substantial ground for difference of 

opinion and that an immediate appeal from the order may materially advance the ultimate 

termination of the litigation.” A controlling question of law is one that is “serious to the conduct 

of the litigation, either practically or legally. . . . [a]nd on the practical level, saving of time of the 

district court and of expense to the litigants.” P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 

161 F. Supp. 2d 355, 358 (D.N.J. 2001) (citations omitted). Further, other courts in this District 

have held that not all differences of opinion justify an interlocutory appeal but rather “the second 

Section 1292(b) factor, must arise out of genuine doubt as to the correct legal standard.” Biase v. 

Nevoso, Pivirotto & Foster, P.A., 2010 U.S. Dist. LEXIS 104623 (D.N.J. Sept. 30, 2010) 

(quoting P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F.Supp.2d at 360). 

Disagreement with the district court‟s ruling does not constitute “a substantial ground for 

difference of opinion for Section 1292(b) purposes.” Id. 

As stated above, Defendant has not established divergent legal standards but a 

disagreement with this Court‟s application and analysis. Therefore, in light of the Court‟s 

preference for appeals after final judgments have been rendered, this Court denies Defendant‟s 

request for certification for interlocutory appeal because a “substantial ground for difference of 

opinion” has not been demonstrated.

s/Susan D. Wigenton, U.S.D.J.

Orig: Clerk

cc: Madeline Cox Arleo, U.S.M.J.

Parties 

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