Civ. No. 11-1679 and on behalf of PARAMUS MALL

CHEVROLET-GEO, INC. AND PARAMUS

HUMMER, LLC (KM)(SCM)

Plaintiff,

v. OPINION

THE ESTATE OF EUGENE C. MEYERS,

ET AL.,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

This Court entered an Opinion and Order (ECF’ Nos. 109 and 110) in this

case on November 21, 2014 deciding several motions and cross motions for

summary judgment. That Order and Opinion ruled in favor of the plaintiff on

certain issues, and against him on others. The plaintiff, Thomas H. Mann, hasnow filed a motion for reconsideration with respect to two of the Court’s

determinations: (1) The Court’s decision to deny preclusive effect to anarbitrator’s decision that defendant PAM wrongfully withheld profits from

shareholders in 2010; and (2) The Court’s decision to deny preclusive effect to

the arbitrator’s valuation of the Hummer franchise, at least pending the result

of a state court appeal. Mann’s motion for reconsideration will be denied.

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brought an action asserting claims similar to those asserted by Mann here.

Barna obtained an arbitration award, which was confirmed by the New Jersey

Superior Court, Law Division, a decision that is currently on appeal. That

confirmed arbitration award is the basis for Mann’s applications to precludethe Estate Defendants 2from litigating certain issues here.

Local Rule 7.1(i) governs motions for reconsideration. Such a motion

must specifically identify “the matter or controlling decisions which the partybelieves the Judge or Magistrate Judge has overlooked.” Id. Reconsideration is

granted sparingly, and only in three situations: (1) when there has been anintervening change in the law; (2) when new evidence has become available; or

(3) when necessary to correct a clear error of law or to prevent manifest

injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194,

1218 (3d Cir. 1995); Carmichael v. Everson, 2004 U.S. Dist. LEXIS 11742

(D.N.J. May 21, 2004). “A motion for reconsideration is improper when it is

used ‘to ask the Court to rethink what it had already thought through — rightly

or wrongly.”’ Oritani Say. & Loan Ass’n v. Fidelity & Deposit Co., 744 F. Supp.

1311, 1314 (D.N.J. 1990) (quoting Above the Belt v. Mel Bohannan Roofing, Inc.,

1 Citations to the record will be abbreviated as follows:

“Complaint” -Second Amended Complaint and Jury Demand, ECF No. 41.“Mot.” -Plaintiff, Thomas H. Mann’s Brief in Support of Motion for Partial

Reconsideration of the Court’s November 21, 2014 Order, ECF No. 113.

“Opinion” — Opinion dated November 21, 2014, ECF No. 10. — Estate Defendants’ Brief in Opposition to Motion for Reconsideration, ECF No.

119.

2 The Estate Defendants consist of the Estate of Eugene C. Meyers; the Eugene C.

Meyers Revocable Trust, and Melody Paton as Executrix and Trustee.

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arbitrator’s ruling on the 2010 profit distribution (or bonuses). It was clear that

the arbitrator had decided that issue. Nevertheless, Mann’s complaint, in thisaction, does not assert an analogous claim. Because the issues in the prior

arbitration and in this lawsuit are not “identical,” they fail to meet the basic

test for application of collateral estoppel. 3

Mann’s complaint in this action does not assert a claim that the 2010

bonuses were wrongfully withheld. As the earlier Opinion noted, the complaint

generally requests, in its prayer for relief, “all bonuses and company profits

wrongfully withheld him by Meyers, Paramus Chevrolet, and Paramus

Hummer.” (Opinion, 15). But, as the Opinion explained, that is a generaldemand, not a factual allegation: the Complaint does not specifically allege“that Paton or PAM wrongfully withheld profits, in 2010 or at other times, in

order to retaliate against Barna.” (Opinion, 15).

In his motion for reconsideration, Mann points to two additional

passages in the Complaint. These, he says, sufficiently state a claim that PAMwrongfully withheld profits in 2010. He refers to Count Two, which asserts that

“the actions of defendant, Meyers, constitute unlawful conduct,

mismanagement of Paramus Chevrolet, abuse of authority, ultra virus [sic]

3 In New Jersey, a party seeking to invoke preclusion must show that:

(1) the issue to be precluded is identical to the issue decided in the prior

proceeding;

(2) the issue was actually litigated in the prior proceeding;(3) the court in the prior proceeding issued a final judgment on the

merits;

(4) the determination of the issue was essential to the prior judgment;

and

(5) the party against whom the doctrine is asserted was a party to or in

privity with a party to the earlier proceeding.

Winters v. N. Hudson Reg’l Fire & Rescue, 50 A.3d 649, 659 (N.J. 2012)

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for the benefit of third parties in complete disregard of Mann and the minorityowners.” (Complaint, ¶ 101).

These allegedly “neglected” statements make no difference. Alone or

together, they come nowhere near stating a claim that PAM wrongfully refused

to distribute profits in 2010—let alone that it did so to retaliate against Barna

or anyone. The complaint makes no mention of the 2010 profit distribution. It

makes no mention of PAM’s use of the 2010 profits to make a loan to the

Meyers estate. It likewise makes no mention of Melody Paton’s

misrepresentation to PAM shareholders that the company would instead use

the profits to comply with a GM mandate that dealerships improve theirfacilities. A court or a defendant reading these generalized accusations—it ishard to even call them allegations—would get no notion of the factual grounds

for Mann’s claim. The reader could not even glean that it was the 2010 bonus

money that Mann was demanding. Such statements lack the specificityrequired to state a claim for relief. See generally Bell Atl. Corp. v. Twombly, 550U.S. 544, 555 (2007) (explaining that Fed. R. Civ. P. 8(a)(2) requires that the

complaint “give the defendant fair notice of what the claim is and the grounds

upon which it rests.” (internal quotations and alterations omitted)). While it is

certainly true that a Complaint need not provide “detailed factual allegations,”

it does require “more than labels and conclusions.” Twombly, 550 U.S. at 555.

The Complaint here does not meet the basic requirement of stating facts with

respect to the 2010 bonus claim.

Mann’s reconsideration motion also builds on the arbitrator’s conclusion

that Paton had withheld profits to retaliate against Barna. Mann takes issue

with the Court’s remark in its November 2014 Opinion, that this finding was

“to some degree, unique to Barna.” (Opinion, 14-15). In Mann’s view, although

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Complaint in this action says nothing about the withholding of the 2010bonuses, and certainly does not allege they were withheld as an act of

retaliation against Barna. Because Mann does not, in this action, assert a claimwith respect to the 2010 bonus, there is nothing for the preclusion doctrines to

preclude. The deficiencies in the Complaint are, alone, enough to rule out issue

preclusion.

As to the 2010 bonus issue, the motion for reconsideration will be

DENIED.

II. Valuation of the Hummer Franchise

Mann also asks the Court to reconsider its decision with respect to the

valuation of the Hummer franchise at the time of the transfer. In Barna’s

action, the arbitrator found that the transfer of the Hummer franchise

constituted misappropriation of a corporate asset. In my November 2014

Opinion, I examined the factors governing offensive collateral estoppel, andruled that the arbitrator’s decision precluded the Estate Defendants from

arguing to the contrary vis-à-vis Mann. (Opinion, 17).

More specifically, I gave preclusive effect to the ruling of the arbitrator,

identified as Ruling no. 1 and summarized in my Opinion as follows:

(1) With respect to the moving of the Hummer franchise (see Section

II.B. 1, supra), Judge Keefe found that General Motors had, in fact,

granted the Hummer franchise to PAM, not to Meyers. Because thefranchise. was the property of PAM, transferring it to anothercorporation without compensating PAM constituted misappropriationof a corporate asset and oppression of PAM’s minority shareholders.

See Interim Award, 16. At the time that Meyers misappropriated the

Hummer franchise from PAM, Barna had owned a 19.277% interest inPAM. Id. Judge Keefe therefore ordered that Barna be awarded

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short of granting the full relief he requests. The dispute revolves around the

valuation phase of the arbitration:

Part of the arbitrator’s decision ordered the Estate defendants topay Barna approximately 19% of the value of the Hummerfranchise as of the date it was transferred out of PAM. See Interim

Award, 16-17. The decision provided that the value of the franchise

as of that date, January 1, 2007, would be estimated by a

valuation expert, and evaluated by the arbitrator. Id. at 17. That

valuation was subsequently performed. The arbitrator issued a

final award incorporating the valuation, and that award wasconfirmed by the New Jersey Superior Court. See 104-1, Exhs. A,

B.

(Opinion, 7)

Mann asks that the Court give preclusive effect to: (a) the portion of the

Interim Award that stated that Mann (like Barna) was entitled to a share of the

Hummer franchise’s value in proportion to his ownership interest in PAM; (b)

the dollar amount of the arbitrator’s valuation of the Hummer franchise.

As to (a), it is implicit in my earlier ruling that the Estate Defendants are

liable to Mann, as they are to Barna, for a proportionate share of the value of

the Hummer franchise. That proportionate share corresponds to Mann’sownership percentage of PAM, some 9.638% (Mot., 3).

As to (b), in general the dollar valuation, too, would extend to Mann’s

case via offensive collateral estoppel. The Estate Defendants had a full and fairopportunity to arbitrate the issue as to Barna, and it makes no sense that the

Hummer franchise could have one value as to Barna, but another as to Mann.

But my Opinion noted that the valuation issues (and therefore the value ofMann’s share) would soon be the subject of an appeal. That appeal, I am

informed, was filed on October 24, 2014, and there is a briefing schedule.

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I adhere to that ruling. Once the issue of the valuation of the Hummer

franchise has been finally resolved and confirmed in state court, Mann may file

a simple motion to fIx the value of his share. In the meantime, I exercise my

discretion and decline to give collateral estoppel effect to the valuation unless

and until it is confirmed on appeal.

CONCLUSION

The motion for reconsideration will be denied. As to the valuation aspect,

however, that denial is without prejudice to a later application after resolution

of the state-court appeal. A separate order will issue.

Dated: March 11, 2015Newark, New Jersey /$J(

HON. KEVIN MCNU Y

United States District Ju

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