Reconsidering Summary Judgment: The Propriety of Revisiting Dispositive Motions
Reconsidering Summary Judgment: The Propriety of Revisiting Dispositive Motions
Parties that have lost motions for summary judgment are, with some frequency, requesting courts to reconsider the motion. A number of recent decisions have evaluated the propriety of reconsidering motions for summary judgment. This article will provide an analysis of these decisions.
The propriety of and the procedures for reconsideration vary on whether the court's initial decision results in an interlocutory order or a final judgment. The grant of summary judgment usually results in a final judgment only if the grant resolves all issues as to all parties.1 An order for summary judgment is interlocutory if it does not entirely end the proceedings before the trial court.2 A summary judgment is interlocutory even if it results in the dismissal of all the claims against one party, so long as other claims against other parties remain in the case.3 Necessarily, the denial of a motion for summary judgment is in all instances an interlocutory determination.4
Generally, a trial court has the inherent power to "review, revise, reconsider and modify" its interlocutory orders at any time prior to the entry of final judgment.5 Indeed, the rules specifically provide that "any order or form of decision which adjudicates fewer than all the claims as to all the parties ? shall be subject to revision at any time before the entry of final judgment."6 This power is often defined as "discretionary,"7 a designation that suggests that a court has substantial leeway to reconsider its own interlocutory decisions.8
Indeed, a court may invite a party to resubmit a motion for summary judgment after it has been denied. Such an invitation is frequently extended if summary judgment is denied because the court believes that the opposing party should be given additional time for discovery. The common practice is for the court to deny the motion "without prejudice" pending the completion of the relevant discovery. It should be noted that R. 4:46-5(a) specifically permits a court to deny a motion for summary judgment pending further discovery proceedings.
A motion for reconsideration of an interlocutory order can be brought at any time before the conclusion of the case.9 The 10-day time limitation of R. 4:49-2, which deals with motions to alter or amend judgments, does not apply to motions for reconsideration of interlocutory orders.10R. 4:49-2 applies only to final judgments or final orders.11
Similarly, the constraints of R. 4:50, the rule for "Relief from Judgment or Order," do not apply to a court's reconsideration of an interlocutory order for summary judgment.12 (Those constraints are described elsewhere in this article.) R. 4:50 applies only to final orders and judgment.
The court rules provide that, to the extent possible, applications for reconsideration of interlocutory orders should be made to the trial judge who entered the order.13 Nonetheless, motions for reconsideration are often heard by a judge different than the deciding judge. In such cases, the judge's discretion to modify the order is more circumscribed. Judges should not vacate orders of judges of co-ordinate jurisdiction unless there are exceptional circumstances.14 This principle seems to be a particular application of the doctrine of "law of the case."15
The doctrine of law of the case is not an absolute ban on multiple considerations of the same motion by different judges.16 Nonetheless, such reconsideration is appropriate only under narrow circumstances. Among those circumstances is new controlling authority or an intervening or retroactive change in the law.17
In addition, one judge may correct the "clear error" in an earlier decision by another judge,18 a standard that suggests only a judge's notably egregious mistakes are subject to revision by another co-equal judge. In another context, one court has suggested that a decision of one judge is subject to revision by another judge only if the first court "acted in an arbitrary, capricious or unreasonable manner."19
New factual material may also serve as a basis to revise a decision.20 Hence, if a party discovers genuinely new evidence that is critical to an already-decided summary judgment motion, a court should generally reconsider the motion.21
The doctrine of "judicial estoppel" is another limitation on the reconsideration of summary judgment. That doctrine provides that a party is barred from making a particular factual assertion if that party successfully made an inconsistent factual assertion in a prior proceeding.22 The doctrine is intended to protect the integrity of the judicial system by preventing litigants from "playing fast and loose" with the court to "suit the exigencies of self interest."23
Some courts have refused to reconsider a motion for summary judgment on the basis of the doctrine of judicial estoppel. Thus, in Bahrle v. Exxon Corp.,24 the trial court entered summary judgment dismissing all claims against the Exxon Corporation and Richard and Susan Ritchie, who were defendants in the case. The court noted that all of the expert reports then before it demonstrated that the Exxon/Ritchie defendants could not have been the source of the ground water contamination that was the subject of the case.25 Another defendant, Texaco, did not oppose the motion, and hence the trial court also dismissed Texaco's cross claims against the Exxon/Ritchie defendants.26
Eighteen months later, Texaco offered at trial an expert whose testimony suggested the Exxon/Ritchie defendants had contributed to the ground water contamination.27 The Appellate Division determined that Texaco was estopped from asserting this "newly-found" theory.28 The Appellate Division determined that "Texaco should not have been permitted to shift gears and focus on Exxon/Ritchie's liability at trial when it had made a tactical choice not to oppose Exxon/Ritchie's summary judgment motions by submitting a competing ? [expert's] report."29
Similarly, in Cummings v. Bahr,30 the plaintiff admitted that she was a social licensee when she was present on certain real property.31 The trial court entered summary judgment dismissing the plaintiff's negligence complaint on the basis that the land owner did not breach the limited duty of care owed to licensees.32 The plaintiff then filed two consecutive motions for reconsideration. As part of the second motion for reconsideration, the plaintiff now claimed that she was an invitee, a status that imposed a higher standard of care upon the defendant landowner.33
The Appellate Division determined that the trial court was correct in its refusal to reconsider the grant of summary judgment on the basis of judicial estoppel. The Appellate Division stated that a court need not consider "a new and contradictory theory" of liability.34 "Plaintiff should not be permitted to pick and choose alternative theories of liability and assert them ad seriatim in separate proceedings in the same litigation."35
Both the Cummings and Bahrle decisions suggest that a new theory of either defense or liability is an insufficient basis to review a grant of summary judgment. It should be noted that in neither case did the party requesting reconsideration submit new facts.
The availability of review of a final order for summary judgment is more limited than the review of interlocutory orders. In the case of a final judgment, the losing party has two principal methods of seeking reconsideration by the trial court. First, that party has available R. 4:49-2. That rule permits a party to move for rehearing or reconsideration of a final judgment or order. The party must, however, make the motion within 10 days of the "service of the judgment or order upon all parties by the party obtaining it."36 Hence, it is the date of service of the order, not entry, that determines the 10-day period. Nonetheless, one court has described the 10-day limitation as "unrelaxable."37
R. 4:49-2 further suggests that reconsideration is only available if the deciding court has "overlooked" or committed error as to controlling decisions or other "matters." One court has imposed a notably limiting interpretation on the availability of reconsideration under this rule:
Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. Said another way, a litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process. The arbitrary or capricious standard calls for a less searching inquiry than other formulas relating to the scope of review. Although it is an overstatement to say that a decision is not arbitrary, capricious, or unreasonable whenever a Court can review the reasons stated for the decision without a loud guffaw or involuntary gasp, it is not much of an overstatement. The arbitrary, capricious or unreasonable standard is the least demanding form of judicial review.38
At least one Appellate Division decision viewed this analysis of the rule with favor.39
The second method of reconsideration is R. 4:50, which prescribes the mechanism for obtaining relief from a final judgment or order. The rule provides 6 bases for relief:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time?; (c) fraud ?, misrepresentation or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.40
A party must bring a R. 4:50 motion within a certain period of time. The rule provides that motions based upon grounds (a), (b) and (c) must be brought within one year after the judgment. Motions which are based on any of the remaining grounds must be brought within a "reasonable time".41
The remedy created by R. 4:50 is extraordinary.42 A court should not lightly invoke the unusual relief afforded by the rule, especially given the strong public policy favoring the finality of judgments.43 Even under the "catch all" provision of R. 4:50-1(f), that permits a remedy for any "reason justifying relief," a court should grant the motion "only when truly exceptional circumstances are present."44
The bases for relief available under R. 4:50 are different and more limited than the reasons for relief under the reconsideration rule, R. 4:49-2, or for relief from interlocutory orders. Thus, for example, under the reconsideration rule, a party may obtain relief if it can demonstrate that the deciding court committed error. R. 4:49-2. Errors, even gross errors, committed by a court in reaching a decision do not offer a reason for relief under R. 4:50.45
Similarly, an intervening change in the law may be a basis for relief from an interlocutory order for summary judgment47 and is, presumably, a valid ground for reconsideration under R. 4:49-2. A change in law or the judicial view of an established rule of law does not, however, justify relief under R. 4:50. Such an interpretation of R. 4:50 is required by the strong public policy in favor of bringing finality to litigation.48 Any other rule would result in a continuous revival of a multitude of cases. Every time the Supreme Court modifies a rule of law, the trial courts would be confronted with a host of litigants seeking to use R. 4:50 to reopen previously decided cases.49
This policy of finality does not, of course, apply to the reconsideration of interlocutory orders. Such orders are, by definition, not final. As for R. 4:49-2, a motion for reconsideration must be brought within 10 days of service of the final order or judgment upon all parties. Thus, although R. 4:49-2 does effect the finality of a judgment, the effect is negligible given the 10-day time limitation. This notably strict time limit contrasts with the time limitations for motions under R. 4:50-1(f), which can be brought at any reasonable time.
Lastly, the doctrine of judicial estoppel applies to the reconsideration of a final judgment as well as the review of interlocutory motions for summary judgment.50
Of course, the ultimate procedural tool for revisiting a trial court's summary judgment decision is an appeal. If, however, the circumstances or the inclination of the litigant demands that the trial court review the matter, then counsel should consider the particular rules and decisions that deal with reconsidering summary judgment.
Dated: July 1, 1997
See, e.g., Appelstein v. United Board & Carton Corp., 35 N.J. 343, 351 (1961).
See Appelstein, 35 N.J. at 351.
See Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250 (App. Div. 1987), certif. denied 110 N.J. 196 (1988).
See Southport Development Group, Inc. v. Township of Wall, 295 N.J. Super. 421, 429 (Law Div. 1996).
Cylkop, 220 N.J. Super. at 257.
R. 4:42-2. See, also, R. 1:7-4, which provides that motions for reconsideration of interlocutory orders shall be determined pursuant to R. 4:42-2.
Southport Development, 295 N.J. Super. at 429-430; Cyklop, 220 N.J. Super. at 257; R. 4:42-2.
Cyklop, 220 N.J. Super. at 263-64. See, also, R. 4:42-2.