Reconsideration of Final Orders vs. Reconsideration of Interlocutory Orders

Lawson v. Dewar, ___ N.J. Super. ___ (App. Div. 2021). This opinion by Judge Fisher was made on summary disposition, a rare occurrence in our appellate courts. In the first paragraph of the opinion, Judge Fisher emphasized that the opinion was written, and published, “chiefly to point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders” (emphases by Judge Fisher). The facts of the case, though important to the parties, are not significant to the legal principles expressed, and so this post will not address the facts.

The issues arose because plaintiff, having lost on a motion for discovery and other relief that was indisputably interlocutory in nature, sought reconsideration. The case had been transferred from one county to another in the interim, so a new judge heard the motion for reconsideration. That second judge denied denied the motion, citing multiple grounds.

Those grounds included that the judge was “being asked to reconsider the decision of a coequal member of the judiciary,” that “nothing new . . . [was] presented . . . that hadn’t been available” on the original motion, that plaintiff had not shown that the first judge “acted in an arbitrary, capricious, or unreasonable manner,” that plaintiff’s motion did not fall within the “narrow corridor’ for motions for reconsideration under Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996), and “the overlay [of] the law of the case” doctrine, citing Lombardi v. Masso, 207 N.J. 517 (2011). None of those reasons, Judge Fisher said, applied to the interlocutory order at issue. They were relevant only to reconsideration of final orders.

At bottom, Judge Fisher’s analysis relied on the distinction between Rules 4:49-2 and 4:42-2. The former (including its 20-day time limit for filing a motion for reconsideration) applies to reconsideration of final orders. The Cummings standard, the “nothing new” idea, and the “arbitrary and capricious” test are all likewise limited to final orders. For interlocutory orders, reconsideration motions are governed by the “far more liberal approach” of Rule 4:42-2, which says that a motion interlocutory orders “shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” And Lombardi said that “[i]nterlocutory rulings are not considered law of the case and are always subject to reconsideration up until final judgment is entered,” Judge Fisher said, quoting Lombardi.

The concern about reconsidering a ruling of a coequal jurist was not well-founded. The first judge was owed “respect but not deference…. The polestar is always what is best for the pending suit; it is better to risk giving offense to a colleague than to allow a case to veer off course.”

Judge Fisher urged trial judges “not to view reconsideration motions as hostile gestures. To be sure, some are frivolous, vexatious or merely repetitious, and some constitute an unwarranted attempt to reverse matters previously decided solely because the prior judge is no longer available. But some reconsideration motions– those that argue in good faith a prior mistake, a change in circumstances, or the court’s misappreciation of what was previously argued – present the court with an opportunity to either reinforce and better explain why the prior order was appropriate or correct a prior erroneous order.”

This opinion thus should not be read as inviting baseless motions for reconsideration or altering the Appellate Division’s prior cases that often frown on such motions. The takeaway for practitioners is the difference in standards as to interlocutory orders, such as the one in this case, and final orders. Judge Fisher’s opinion tells pretty much everything that one needs to know on that subject.