NOT FOR PUBLICATION

OPINION

KEVIN MCNULTY, District Judge.

Now before the Court is the motion (ECF no. 121) of the plaintiff, ADP, Inc. ("ADP") for reconsideration of the Court's decision denying ADP's motion to dismiss the counterclaims of defendant Ultimate Software Group, Inc. ("USG"). As I write for the parties, this opinion assumes familiarity with the Court's prior Order (ECF no. 120) and Opinion ("Op.", ECF no. 124).1

The standards governing a motion for reconsideration are well settled. See generally D.N.J. Loc. Civ. R. 7.1(i). Reconsideration is an "extraordinary remedy," to be granted "sparingly." NL Indus. Inc. v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J. 1996). Generally, reconsideration is granted in three scenarios: (1) when there has been an intervening 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 WL 1587894, at *1 (D.N.J. May 21, 2004). Local Rule 7.1(i) requires such a motion to specifically identify "the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked." Id.; see also Egloff v. New Jersey Air Nat'l Guard, 684 F.Supp. 1275, 1279 (D.N.J. 1988). Evidence or arguments that were available at the time of the original decision will not support a motion for reconsideration. Damiano v. Sony Music Entm't, Inc., 975 F.Supp. 623, 636 (D.N.J. 1997); see also North River Ins. Co., 52 F.3d at 1218; Bapu Corp. v. Choice Hotels Int'l, Inc., 2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F.Supp.2d 349, 352 (D.N.J. 2001)).

ADP's motion presents no such "overlooked" issue. To read ADP's brief, one would think that the Noerr-Pennington issue had been decided against it. But there is no dispute as to the applicable legal standards under Noerr-Pennington. I merely ruled that I would not dispose of the matter on a motion to dismiss, but would revisit it on summary judgment with the benefit of a record. That was and is the only question presented. I adhere to that ruling.

DISCUSSION

A. Reconsideration

Like many a litigant, ADP brings a motion for reconsideration asserting that the Court, in deciding as it did, must have "ignored" or "overlooked" its submissions or arguments. In particular, ADP says, the Court did not consider the prior cases attached to the Cruz declarations, or rule on its request for judicial notice of them. This reconsideration motion is plainly meritless, in that it can easily be disposed of via quotations from my prior Opinion.

The prior cases are litigations brought by ADP against others. Because it "won" almost all of them, ADP says, the sham litigation exception cannot apply, and Noerr-Pennington must be held to bar the counterclaims as a matter of law. ADP seems to define a win as enforcement, to any degree, of a restrictive covenant.

In fact, I did not miss the citations to the other cases, nor did I believe I was powerless to consider them. My Opinion specifically noted that "I may also take judicial notice of another court's opinion, `not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.' S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999). See generally Fed. R. Evid. 201." (Op. at 4)2

I reviewed the submissions, considered the effect of those thirteen prior cases, and ruled as follows:

(Op. at 8) Indeed, the citation to the plaintiff's brief refers to its discussion of the very cases that the court supposedly "overlooked."

Implicit in ADP's analysis seems to be some notion that, if it has "won" a large majority of prior similar litigations, then the court is compelled to dismiss the counterclaims at the motion to dismiss stage. Not so. A court may, in a sufficiently clear case, decide a Noerr-Pennington issue at the motion to dismiss stage. (ADP seems to read "may" as "must.") Alternatively, it may often present a jury question, or at least a summary judgment question. I acknowledged, and did not "overlook," that principle in my earlier Opinion:

(Op. at 6 n.3)

As pointed out in my prior Opinion, the applicability of the doctrine is not just a matter of compiling a won/lost record. That history of litigation against others is of course relevant, but it is not necessarily dispositive. As pointed out in my prior Opinion,

(Op. at 6)(emphasis added)

That "holistic review" is one which "may include," but is not limited to, the success, or not, of the actions. (Id.) "This inquiry asks whether a series of petitions were filed with or without regard to merit and for the purpose of using the governmental process (as opposed to the outcome of that process) to harm a market rival and restrain trade." Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162, 180 (3d Cir. 2015) (emphasis added). The counterclaim complaint alleges such misuse of the litigation process.

The Court will consider the other factors identified in California Motor in assessing whether litigation was brought in bad faith simply to intimidate or discourage competition. I hasten to state that I am not finding that it was; all I have ruled is that the determination will be made later in the process.

The motion for reconsideration is denied.

B. Certification for Interlocutory Appeal

A district court may, within its discretion, certify an interlocutory order for immediate appeal:

28 U.S.C. § 1292(b). See also Simon v. United States, 341 F.3d 193, 199 (3d Cir. 2003). Thus to certify an order for appeal, the court must find "(1) that the order of appealability involves a controlling question of law, (2) as to which there is a substantial ground for a difference of opinion, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation." Ensey v. Gov't Employers Ins. Co., No. CV 12-7669 (JEI/KMW), 2014 WL 12613400, at *2 (D.N.J. Aug. 18, 2014) (citing Katz v. Carte Blanche Corp., 496 F.2d 747, 753 (3d Cir. 1974)). Certification is not mandatory, however; even if the three criteria are met, it is discretionary. Id. (citing Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976); P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F.Supp.2d 355, 358 (2001)). My order, a routine application of the Rule 12(b)(6) standard, serves only to delay consideration of the substantive issue until the completion of discovery and summary judgment. It does not present grounds for an interlocutory appeal.

I first consider in order the purportedly controversial, appeal-worthy "controlling questions" as presented by ADP:

The court did not rule that it was entitled to "fail to consider crucial evidence." Nor did it in fact fail to consider that evidence. The "evidence" here consists of thirteen prior decisions in cases brought by ADP. As outlined above, I read and considered them.

The court did not "fail to consider and rule on a request for judicial notice." Once again, the "crucial evidence" consists of the thirteen prior decisions. Not only did the court's Opinion specifically provide that "I may also take judicial notice of another court's opinion. . . ." I did take notice of those prior decisions; I specifically cited to pages 18-21 in ADP's brief, where they were discussed; and I dealt with ADP's argument that this won/lost record entitled it to the relief requested.

This court's prior opinion cited and followed the standards set forth in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162, 178 (3d Cir. 2015). Hanover, however, partially reversed the dismissal of an antitrust suit, and also found that there was sham litigation, disentitling the defendant to assert the Noerr-Pennington defense. The case went up to the Court of Appeals on an ordinary appeal from a final decision. The particular issue here — whether it is error to deny a motion to dismiss on Noerr-Pennington/sham litigation grounds — was not presented. That issue involves no more than an application of agreed-upon standards to the facts, and a judgment call about whether further discovery is required. As such, it is not really a "question of law" requiring appellate guidance at all. See Ahrenholz v. Bd. Of Trustees, 219 F.3d 674, 676-77 (7th Cir. 2000) (looking to whether a putative § 1292(b) appeal concerns a "pure question of law," such as the "meaning of a statutory or constitutional provision, regulation, or common law doctrine").4

In addition, a § 1292(b) appeal is appropriate for an order which, at least, "if erroneous, would be reversible error on final appeal." Katz, 496 F.2d at 755. This order, denying a motion to dismiss, would have little if any significance on a final appeal; it is the kind of interlocutory issue which, if incorrect, is likely to be corrected or mooted by subsequent developments in the litigation. It can most profitably be heard in the usual course, on appeal from a final decision. See 28 U.S.C. § 1291. An interlocutory appeal may also be appropriate where resolution of the question is of great consequence to the litigation. Katz, supra. This question, however, implicates only the usual inconvenience of litigating an issue on which ADP believes it will prevail.

Nor is this a disputed or controversial question. "Substantial grounds for difference of opinion" exist, for purposes of section 1292(b), when the courts that have examined an issue reach "conflicting and contradictory opinions . . . upon the particular question of law." Ensey v. Gov't Employers Ins. Co., No. CV 12-7669 (JEI/KMW), 2014 WL 12613400, at *2 (D.N.J. Aug. 18, 2014) (quoting Kolbeck v. General Motors Corp., 702 F.Supp. 532, 542 (E.D. Pa. 1988)). See also Cuttic v. Crozer-Chester Med. Ctr., 806 F.Supp.2d 796, 804-05 (E.D. Pa. 2011) ("[S]ubstantial grounds for difference of opinion exist where there is general doubt or conflicting precedent as to the correct legal standard."). There is no disagreement, doubt, or dispute in the case law as to the applicable standards under California Market or Hanover. The only question is whether those standards will be applied now, or later, to achieve a substantive result.

On that score, I consider whether an interlocutory appeal would materially advance the ultimate termination of the litigation. That question must be considered in the context of the general policy against piecemeal litigation that is embodied in 28 U.S.C. § 1292 and the final-decision rule of 28 U.S.C. § 1291. This litigation will go forward in any event, and the counterclaims will probably involve contentions and witnesses that to some extent will overlap with the merits of the main claims. Interrupting the progress of the case for a round-trip to the Court of Appeals is as likely to delay as to hasten the day when the merits can finally be resolved. And ADP is frank about its desire to stay all proceedings on the counterclaims pending the outcome of this motion and any resulting interlocutory appeal.

For all of the foregoing reasons, a certificate of appealability pursuant to 28 U.S.C. § 1292(b) is denied.

C. Stay/Extension of time

ADP seeks to stay proceedings on the counterclaim pending resolution of this motion and, if the motion is granted, pending the outcome of any interlocutory appeal. In light of my rulings, that application is moot, and therefore is denied.

ADP also seeks a stay of its time to answer the Counterclaims pending resolution of this motion for reconsideration. That application, too, is denied as moot.

CONCLUSION

For the reasons stated above ADP's motion for reconsideration and associated relief (ECF no. 121) is denied.

An appropriate order follows.