NOT FOR PUBLICATION 

 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY

_____________________________________ 

 : 

JAMES VANDER VEER and ILELE : Civil Action No. 11-3951 (PGS) 

STERN, on behalf of themselves and : 

all others similarly situated, : 

 : MEMORANDUM AND ORDER 

 Plaintiffs, : 

 : 

v. : 

 : 

MAIBEC INCORPORATED, : 

 : 

 Defendant. : 

_____________________________________: 

SHERIDAN, U.S.D.J.

This matter comes before the Court on a motion for reconsideration of the Court=s 

November 5, 2012 Memorandum and Order denying in part and granting in part Defendant, 

Maibec Incorporated, motion to dismiss Plaintiff=s first amended complaint (ECF No. 27). 

Defendant Maibec argues that Athis Court correctly dismissed Counts One (New Jersey 

Consumer Fraud Act), Six (Negligence), Seven (Strict Products Liability), Eight (Unjust 

Enrichment), and Nine (Sections 349 and 350 of New York=s General Business Law)@ but Athere 

was no basis to allow the remaining counts to stand.@ The remaining Counts Two, Three, Four, 

and Five allege breaches of contract, express warranty, and the implied warranties of fitness for a 

particular purpose and merchantability, respectively. Rather than repeating all of the facts, the 

Court relies on the facts presented in its Memorandum and Order (ECF 27). 

Defendant=s chief argument is that the Court improperly employed the Conley v. Gibson

standard rather than the Twombly/Iqbal standard in deciding the motion to dismiss. More 

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particularly, Defendant argues that the Court relied on, and based its decision solely upon the 

conclusory allegations, and that Athe product warranty simply does not cover the alleged cupping 

of natural wood shingles.@ 

Motions for reconsideration are governed by Fed. R. Civ. P. 59(e) and L. Civ. R. 7.1(I). 

The Aextraordinary remedy@ of reconsideration is Ato be granted sparingly.@ A.K. Stamping Co., 

Inc., v. Instrument Specialties Co., Inc., 106 F. Supp. 2d 627, 662 (D.N.J. 2000) (quoting NL 

Indus., Inc., v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)). The Rule 

Adoes not contemplate a Court looking to matters which were not originally presented.@ Damiano 

v. Sony Music Entertainment, Inc., 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Florham Park 

Chevron, Inc., v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988)). 

The Third Circuit has held that the Apurpose of a motion for reconsideration is to correct 

manifest errors of law or fact or to present newly discovered evidence.@ Harsco Corp. v. 

Zlotincki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986). 

AReconsideration motions, however, may not be used to relitigate old matters, nor to raise 

arguments or present evidence that could have been raised prior to the entry of judgment.@ NL 

Indus., Inc., 935 F. Supp. at 516; See Wright, Miller & Kane, Fed. Practice and Procedure: 

Civil 2d ' 2810.1. Such motions will only be granted where (1) an intervening change in the 

law has occurred, (2) new evidence not previously available has emerged, or (3) the need to 

correct a clear error of law or prevent a manifest injustice arises. See, North River Ins. Co. v. 

CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). 

In applying the reconsideration standard to the Court=s Memorandum and Order, it is clear 

that the Court applied the Twombly/Iqbal standard (See Memorandum and Order, ECF No. 27). 

 The decision does not mention the Conley case which the Defendant infers that the Court had 

applied. That assertion is incorrect, and the Twombly/Iqbal standard is mentioned a number of 

times. Although the Court cited an outdated case (Semerenko v. Cendant Corp., 223 F.3d 165, 

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173 (3d Cir. 2000), that section of the memorandum principally refers to the Twombly/Iqbal

standard. 

The Defendant argues that the Acupping@ of shingles is not covered by the warranty, but the 

motion to dismiss analyzes the plausibility of the alleged claims, and the continued cupping or 

buckling of shingle, as alleged, plausibly breaches a contract or warranty. 

The notion that cupping is different from other defects is an issue that must be assessed 

during discovery and with expert testimony. 

Maibec is attempting to convert the standard to dismiss into a more rigid standard. Such 

is not appropriate here where there are plausible claims seeking relief. As such, the motion for 

reconsideration is denied. 

ORDER 

IT IS on this 12th day of April, 2013 

ORDERED that the motion for reconsideration (ECF No. 28) is denied. 

 s/Peter G. Sheridan 

 PETER G. SHERIDAN, U.S.D.J. 

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