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Not for Publication 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

HEINE, et al., :

:

Plaintiffs, : Civil Action No. 11-2655 (ES) (JAD)

:

v. : MEMORANDUM OPINION

:

CITY OF GARFIELD, et al., :

:

Defendants. :

:

SALAS, DISTRICT JUDGE

This matter comes before the Court on a motion for reconsideration by pro se Plaintiff 

Ellen Heine (“Plaintiff” or “Heine”) of this Court’s June 29, 2016 Order dismissing Count II of 

her Second Amended Complaint with prejudice (for the reasons stated on the record during the 

June 29, 2016 hearing). (See D.E. No. 98). For the reasons below, Plaintiff’s motion is 

DENIED. 

1. The Court provides the background of this action in summary fashion because it 

writes for the parties who are undoubtedly familiar with the procedural and factual background 

of this protracted litigation. In Plaintiff’s Second Amended Complaint, she asserted four causes 

of action. (D.E. No. 11). On June 29, 2016, the Court granted Defendant City of Garfield’s 

(“Garfield” or “Defendant”) motion for judgment on the pleadings under Federal Rule of Civil 

Procedure 12(c). (D.E. No. 97). The Court dismissed Counts One, Three and Four of Heine’s 

Second Amended Complaint without prejudice and Count Two with prejudice. (Id.). Thereafter, 

Heine moved for reconsideration of the Court’s dismissal of her Second Count—which was a 

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claim brought pursuant to the American with Disabilities Act (“ADA”). (See D.E. No. 98). 

Garfield opposed her motion. (See D.E. No. 99). 

2. This District’s Local Civil Rule 7.1 permits motions for reconsideration that set

forth “the matter or controlling decisions which the party believes the Judge . . . has overlooked.” 

L. Civ. R. 7.1(i). “Reconsideration under Local Civil Rule 7.1 is an extraordinary remedy that is 

rarely granted.” Onyx Ins. Co. v. N.J. Dep’t of Banking & Ins. (DOBI), No. 15-3469, 2016 WL 

6986451, at *1 (D.N.J. Nov. 28, 2016) (citing Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 215 

F. Supp. 2d 482, 507 (D.N.J. 2002)). “A party seeking reconsideration must show at least one of 

the 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.’” Cole v. 

Guardian Life Ins. Co. of Am., 594 F. App’x 752, 756 (3d Cir. 2014) (quoting Max’s Seafood 

Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). 

To be sure, “[o]rdinarily, a motion for reconsideration may address only those matters of 

fact or issues of law which were presented to, but not considered by, the court in the course of 

making the decision at issue.” Wisowaty v. Port Auth. Trans-Hudson Corp., No. 11-2722, 2013 

WL 103385, at *2 (D.N.J. Jan. 8, 2013). “Moreover, L. Civ. R. 7.1(i) does not allow parties to 

recapitulate cases and arguments which the court has already considered before rendering its 

original decision.” Id. “In other words, ‘[a] motion for reconsideration should not provide the 

parties with an opportunity for a second bite at the apple.’” Exel v. Govan, No. 12-4280, 2016 

WL 6534396, at *2 (D.N.J. Nov. 1, 2016) (quoting Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 

533 (D.N.J. 1998)); see also Onyx Ins. Co., 2016 WL 6986451, at *1 (“A motion for 

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reconsideration is not an opportunity to raise new matters or arguments that could have been 

raised before the original decision was made.”). 

3. The Court agrees with Garfield (see D.E. No. 99 at 5) that it is unclear from 

Heine’s submission why she feels entitled to reconsideration of the Court’s dismissal of her 

ADA claim. Even giving the benefit of every doubt in light of Heine’s pro se status, the Court 

simply cannot decipher the basis of her request for reconsideration. What seems readily apparent 

from her motion is that she emphasizes her disability and the requirements of the ADA. (See, 

e.g., D.E. No. 98 at 2-4). But the Court fails to understand how this warrants reconsideration of 

its decision. After all, even taking a fresh look at her ADA claim, Heine did not allege any facts 

in her Second Amended Complaint from which the Court could reasonably infer that the 

property-at-issue was a “public accommodation” subject to the ADA. See 42 U.S.C. § 

12182(a).1

 Rather, Heine alleged that she was the owner of the property-at-issue. (See D.E. No. 

11 at 2). So, as Garfield aptly notes, it would appear that if there were any disability-related 

accommodation violations, it would be Heine’s responsibility given her own allegations. To be 

sure, the Court is not considering materials outside the pleadings—as Heine seems to have 

concerns about (see D.E. No. 98 at 5)—in reaching this conclusion. 

 1 “[R]eflecting Congress’s decision to separate the ADA into distinct titles covering different kinds of 

discrimination, the Supreme Court has described the ADA as ‘forbid[ding] discrimination against persons with 

disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public 

services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered 

by Title III.’” Mary Jo C. v. N.Y. State and Local Retirement Sys., 707 F.3d 144, 169 (2d Cir. 2013) (quoting 

Tennessee v. Lane, 541 U.S. 509, 516-17 (2004)). Given the allegations here, it appears indisputable that—at best—

Heine seeks to bring a claim under Title III. 42 U.S.C. § 12182(a) provides that: “No individual shall be 

discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, 

privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases 

(or leases to), or operates a place of public accommodation.” (emphases added). 

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4. Having failed to decipher a legally sufficient basis for reconsideration, and further 

having nevertheless conducted a cursory review of Heine’s allegations in light of her status as a 

pro se litigant and her pending motion for reconsideration, the Court does not see any basis for 

granting Heine’s motion. An appropriate Order accompanies this Memorandum Opinion. 

s/Esther Salas 

Esther Salas, U.S.D.J.

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