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DODGE v. SUSQUEHANNA UNIV.

June 2, 1992

THOMAS S. DODGE, Plaintiff
v.
SUSQUEHANNA UNIVERSITY, Defendant


McClure, Jr.


The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

June 2, 1992

 BACKGROUND

 Plaintiff Thomas S. Dodge alleged in this ADEA action *fn1" that he was discharged from his employment as business manager at Susquehanna University ("the University") because of his age. 29 U.S.C. § 623(a)(1). Dodge left the University's employ on November 19, 1989. His departure was preceded by a discussion which took place on November 16, 1989, between Dodge and his supervisor, Donald Aungst, about perceived short-comings in his performance and the need for improvement. Plaintiff alleged that Dodge's purported shortcomings are a pretext for discriminatory motives and sought compensatory and liquidated damages pursuant to 29 U.S.C. § 626(b).

 In its defense, the University asserted that: (1) Dodge was not discharged but retired of his own volition; (2) Dodge failed to establish a prima facie case of discrimination; (3) Dodge produced no direct evidence of discrimination; and (4) it had legitimate, non-discriminatory reasons for its conduct. In an order and memorandum dated Marsh 13, 1992, the court entered summary judgment in defendant's favor.

 Plaintiff now seeks reconsideration of that order on three grounds. In his motion for reconsideration (Record Document No. 41, filed March 23, 1991), plaintiff argues that the court erred in: (1) overlooking his breach of contract claim; (2) applying a standard for the review of summary judgment motions in ADEA cases that the Third Circuit has not adopted; and (3) ruling on the motion at a time when plaintiff had not yet completed discovery. For the reasons stated below, we will grant reconsideration, but deny the request to alter or amend the prior order granting summary judgment in defendant's favor and closing the case.

 Standards for motion to alter or amend

 A Rule 59(e) motion to alter or amend a judgment must rely on at least one of three grounds: (1) intervening change in controlling law; (2) availability of new evidence not previously available, or (3) need to correct a clear error of law or prevent manifest injustice. Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990) and Natural Resources Defense Counsel, Inc. v. U.S. E.P.A., 705 F.Supp. 698, 702 (D.D.C.), vacated on other grounds, 707 F.Supp. 3 (1989). "With regard to the third ground, the Court cautions that any litigant considering bringing a motion to reconsider based upon that ground should evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant." Atkins, supra, 130 F.R.D. at 626. Moreover, a Rule 59(e) motion is not to be used as a means "to reargue matters already argued and disposed of" by prior rulings "or to put forward additional arguments which it could have made neglected to make before judgment." Davis v. Lukhard, 106 F.R.D. 317, 318 (E.D.Va. 1984), judgment vacated on other grounds, 788 F.2d 973 (4th Cir. 1986).

 Plaintiff's motion to amend

 We discussed the law and the reasons for the ruling granting summary judgment in defendant's favor in the prior memorandum dated March 13, 1992 and will not repeat them here unnecessarily. Plaintiff's arguments on the ADEA raise few issues not previously addressed by the court, and we will address here only those which warrant further comment.

 Breach of contract

 In his motion for reconsideration, plaintiff argues that the court should not have directed entry of summary judgment in defendant's favor, because plaintiff's breach of contract claim remains. Plaintiff argues that paragraphs five through eight of his complaint allege a claim for breach of contract. They state:

 5. On or about May 24, 1989, Plaintiff and Defendant entered into an employment contract, with an effective date of September 1, 1989, for the term of one year. A true and correct copy of Defendants [sic] memorandum to Plaintiff is attached hereto as Exhibit "A". The final signed document is in the sole and exclusive possession of Defendant.

 7. Under the terms of said contract, Defendant was to contribute $ 2,576 per annum to Plaintiff's retirement annuity.

 8. Defendant has breached its duties under the aforesaid contract in that it ceased to compensate and otherwise terminated Plaintiff's employment on or about February 22, 1990.

 (Plaintiff's complaint, filed November 16, 1990, paras. 5-8). In paragraph nine, plaintiff launches into allegations that his employment was terminated for discriminatory reasons. In paragraph twelve, plaintiff reverts back to allegations relating to his employment contract. It states:

 Plaintiff has demanded that Defendant pay all sums properly due Plaintiff and has demanded of Defendant the right to employment under the terms of said contract, but Defendant has in all manner refused to pay the same or any part thereof or to otherwise employ Plaintiff.

 (Plaintiff's complaint, filed November 16, 1990, para. 12). The allegations relating to the contract are not set forth in a separate count but are simply intermingled with allegations of age discrimination. In the ad damnum clause, plaintiff requests damages consisting of:

 all sums due Plaintiff under the terms of their employment contract, together will [sic] all sums that would have been due Plaintiff had Plaintiff continued to be employed by Defendant to age 65 . . . together with interest . . . costs of this suit, counsel fees, expenses and all other legal and equitable relief which this Honorable Court may deem proper, especially punitive damages.

 (Plaintiff's complaint, filed November 16, 1990, p. 3)

 Plaintiff's complaint does not conform to the Federal Rules of Civil Procedure. Rule 10(b) provides that:

 . . . . Each claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth.

 Fed.R.Civ.P. 10(b). Not only did plaintiff fail to set forth the breach of contract claim as a separate count, he states in the paragraph immediately preceding paragraph 5 that the action is filed under the ADEA, 29 U.S.C. §§ 621-34, giving the impression that this is the sole basis for his action.

 Defendant was apparently litigating this case under the assumption that no separate claim for breach of contract had been pled. Its motion for summary judgment on the ADEA claim was not captioned "motion for partial summary judgment" as would have been the case had it thought that there was an additional claim. Instead of correcting this matter when it first arose, plaintiff waited until the court had ruled on the motion for summary judgment to set the record straight.

 Although plaintiff's lack of vigilance and failure to follow Rule 10 caused the confusion, it is not the type of error which warrants a sanction as harsh as denying plaintiff relief on that claim. At the same time, it would also be inappropriate for this court to retain jurisdiction over the breach of contract claim, the only federal claim having been dismissed and there being no basis' for diversity jurisdiction. *fn2" 28 U.S.C. § 1332. We will, therefore, amend the order of March 13, 1992 to provide that plaintiff's claim for breach of contract be dismissed without prejudice. This gives plaintiff the opportunity to file a breach of contract action in state court. *fn3"

 Summary judgment in discrimination actions

 The court's holding is not inconsistent with Third Circuit precedent. Contrary to plaintiff's assertion, the record contains no evidence which raises a genuine issue of material fact as to the legitimacy of the reasons stated by the University for the events which culminated in Dodge leaving its employ. Although we could have stated this more ...


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