The opinion of the court was delivered by: Norma L. Shapiro, S.J.
In this action arising out of the dissolution of the law partnership of
Haymond and Lundy, LLP, ("H&L"), judgment was entered on a jury verdict
for John Haymond ("Haymond") and against Marvin Lundy ("Lundy"), on
August 31, 2001.*fn1 The court also issued a permanent injunction
prohibiting Robert Hochberg ("Hochberg") from practicing, or holding
himself out to practice law, in this Commonwealth.*fn2
Timely post-trial motions followed: Lundy's Motion for a New Trial,
Mistrial, or Modification (#310) of the Judgment Opinion; Lundy's Motion
for "Specification" (#326) of the Injunction; and Hochberg's Motion for
Post-Trial Relief from the Injunction (#308). The court held oral
argument on November 16, 2001, and now denies each of these post-trial
motions. The court also resolves a motion to intervene filed by Don
Manchel ("Manchel"), a former partner of Lundy. There are other pending
motions to be addressed by the court after the filing of this opinion and
The facts and procedural history of this action are comprehensively set
forth in three of the court's previous opinions: Judgment Opinion, 1-8;
the Injunction Opinion, 1-13; Haymond v. Lundy, No. 99-5015 & 99-5048,
2000 WL 804432, *1-4 (E.D.Pa. June 22, 2000).
A. Lundy's Omnibus Post-Trial Motions #310-1, -2, and -3
Lundy cites to neither authority nor federal rule in his Omnibus
Post Trial Motions.*fn4 The court has construed these motions as
having two grounds. First, Lundy seeks a new trial under F.R.C.P.
59(a).*fn5 Second, Lundy seeks a modification of judgment under
1. F.R.C.P. 59(a) Motion for a New Trial
Lundy's F.R.C.P. 59(a) motion argues the trial was flawed because
Haymond's counsel argued to the jury that his client wished to enforce
the Partnership Agreement ("Agreement"), but after trial argued to the
court that the firm's resources should be distributed under the Uniform
Partnership Act ("UPA") instead. Lundy alleges that had his counsel known
of Haymond's real demand, the trial strategy and the outcome would have
been different, because Haymond concealed this strategic decision to
portray himself to the jury in a more favorable light than was warranted
by the facts.
Lundy does not attack the sufficiency of the evidence. Cf. Blum v.
Witco Chemical Corp., 829 F.2d 367, 372 (3d Cir. 1987) (jury verdict
upheld when reasonable basis exists for verdict). Rather, he cites to what
he perceives to be misconduct by Haymond and his counsel. In these
circumstances, a new trial is warranted under F.R.C.P. 59 only when
"improper assertions have made it `reasonably probable' that the verdict
was influenced by prejudicial statements." Fineman v. Armstrong Indus.,
Inc., 980 F.2d 171, 207 (3d Cir. 1992) (citations omitted), cert.
denied, 507 U.S. 921 (1993). Lundy has the burden of meeting this test.
Here, Lundy can establish neither misconduct nor prejudice. The
purported misconduct was Haymond's argument to the jury that the
partnership should be dissolved according to the Agreement, but later
arguing to the court that dissolution should occur under the UPA.
Utilizing the UPA would have provided Haymond with a significantly
greater share of partnership assets than he will receive under the
Lundy's argument that had the jury known of Haymond's later contention
it would not rendered judgment against Lundy is frivolous. First, the
jury was exposed to Lundy's argument that Haymond wanted more than his
share of the partnership assets, even though this argument was irrelevant
to the issues before the jury. See Tr., January 25, 2001, at 164, 175
(Lundy's closing argument to the jury). Second, the court bifurcated the
liability and damage phases of the action: at no time was the jury
deciding to award damages for any party. It was contemplated that after
the jury verdict the parties would argue to the court its effect on
damages. Third, Haymond did argue to the court that Lundy's material
breach made the Agreement a nullity, see Tr.,
January 25, 2001, at
192-194, so Lundy did have notice of Haymond's intention to seek an
equitable division of the partnership assets among the parties. Lundy has
cited no authority in his post-judgment motions, and no relevant
authority in the earlier Motion for Mistrial,*fn6 to establish
misconduct in these circumstances.
Even if there were misconduct, Lundy suffered no prejudice. In the
Judgment Opinion, the court rejected Haymond's argument that the
partnership should be liquidated according to the UPA. See Judgment, at
9-15. The relief awarded was then "determined by examining dissolution
under the Partnership Agreement and addressing each breach found by the
jury and how it effects those terms." Judgment at 14-15.
Because Haymond's post-trial strategy won him nothing, Lundy suffered
no prejudice under F.R.C.P 59(a). See F.R.C.P. 61 ("The court at every
stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties."); see also 11 Charles Alan Wright & Arthur R. Miller et al.,
Federal Practice and Procedure 2d § 2805 ("[I]t is only those errors
that have caused substantial harm to the losing party that justify a new
trial. Those errors that are not prejudicial do not call for relief under
Rule 59"). This is a case of, at best, harmless error. See McQueeney v.
Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir. 1985) (holding error is
harmless when there is a "high probability" it did not affect the outcome
of the action).
Finally, it is not "reasonably probable" Haymond's allegedly
duplicitous trial strategy led to the jury's verdict in his favor.
Lundy's claim the jury would have found for him had it known of Haymond's
true demands is fanciful speculation in view of the evidence at trial.
There was substantial evidence, credited by the jury, supporting
Haymond's assertion Lundy was the first to breach the Agreement. See,
e.g., Judgment, at 6-8, 19-23. To the extent there was a "reasonable
basis" for the jury verdict, it must be upheld. See Blum, 829 F.2d at
372. The verdict does not shock the conscience of the court and a new
trial on liability will not be granted.
2. Rule 59(e) Reconsideration
Lundy petitions the court, in the alternative, to amend the judgment
to: (1) require Haymond to "zero out" his Capital Account; and (2)
transfer to Lundy all fees from ML&L cases handled by Haymond
Because Lundy asks the court to amend its judgment, in part, see
Judgment, at 18, 30-35, F.R.C.P. 59(e), and not F.R.C.P. 59(a), applies.
A motion for reconsideration will be granted if: (1) new evidence becomes
available; (2) there has been an intervening change in controlling law;
or (3) a clear error of law or manifest injustice must be corrected. See
NL Indus. v. Commercial Union Ins. Co., 65 F.3d 314, 324 n. 8 (3d Cir.
1995); Jubilee v. Horn, 959 F. Supp. 276, 278 (E.D.Pa. 1997; Smith v.
City of Chester, 155 F.R.D. 95, 96-97 (E.D.Pa. 1994). Motions for
reconsideration are not to be used to reargue or relitigate matters
already decided. See Waye v. First Citizen's Nat'l Bank, 846 F. Supp. 310,
314 n. 3 (M.D.Pa.), aff'd, 31 F.3d 1175 (3d Cir. 1994). Lundy does not
meet this burden.
Lundy first argues that Haymond must "zero out" his Capital Account
rather than have its balance credited to him. Cf. Judgment, at 18
(requiring Haymond to be paid the balance of his account, if any, at
liquidation). Whether Haymond's Capital Account contains a positive
balance, requiring repayment under the Judgment, or a negative one, as
presumed by Lundy, is yet to be determined by the Receiver and approved by
the court on a final accounting of former partnership debts and
liabilities. This issue is not ripe until the Receiver presents a
supplemental report, objections have been heard and ruled on, and a final
Second, Lundy reargues a matter decided by the court in paragraph
3[F] of its order, and in its Judgment at page 30-32. There, the
court held that:
Net fees received by Haymond, or his new firm, from
ML&L [Manchel, Levin and Lundy] cases settled or
litigated to verdict shall be placed in escrow. These
fees shall be distributed 80% to Haymond, or his new
law firm, and 20% to Lundy, or his new law firm . . ..
Lundy believes that this ruling transfers to Haymond fees the Agreement
reserves for Lundy. However, he provides no new evidence for
interpretation of the Agreement or new authority resulting in a
conclusion different from that reached by the court: he articulates no
reason why the court's judgment results in manifest injustice. Lundy's
position, if accepted, would allow him to recover all fees from cases
litigated by Haymond after dissolution, even though former H&L clients
chose Haymond personnel as their lawyers. Cf. Kenis v. Perini Corp.,
682 A.2d 845, 849 (Pa.Super.Ct. 1996) (clients have absolute right to
terminate attorney-client relationship in Pennsylvania).
Lundy also argues that because Haymond is not now practicing law in
Pennsylvania, he is prohibited under § 9.02(e)(I)(B) of the Agreement
from recovering fees on the ML&L cases. This argument was not made during
or after the trial, and may not be raised on post-trial motions. See
Federal Deposit Ins. Corp. v. World University, Inc., 978 F.2d 10, 16
(1st Cir. 1992) ("Rule 59(e) motions are ...