The opinion of the court was delivered by: ROBERT KELLY, Senior District Judge
Presently before this Court is Regulus Group LLC's Motion for
Reconsideration of the Court's Order Granting a New Trial. For the
reasons that follow, the Motion is granted.
On October 1, 2003, the Court granted Plaintiff, David B. Still
("Still"), a new trial on the Pennsylvania Uniform Commercial Code
("UCC") issues of "commercial reasonableness" and "manifest
unreasonableness" ("UCC issues") with respect to his claims for
Conversion and Wrongful Seizure set forth in Counts XX and XXII of the
Second Amended Complaint.*fn1 See Still v. Regulus Group LLC, No.
00-6053, 2003 WL 22249198 (E.D. Pa. Oct. 1, 2003). Defendant, Regulus
Group LLC ("Regulus"), argues that reconsideration of the Court's Order
and Opinion granting a new trial is necessary to correct clear errors and
to prevent prejudice to
Regulus. Specifically, Regulus argues that Still's purported UCC claims
should never have been submitted to the jury because Still was improperly
permitted to amend his pleadings during trial to include the UCC claims.
Regulus asserts that this amendment was improper because it neither
expressly nor impliedly consented to trial of Still's purported UCC
claims. In addition, Regulus asserts that the amendment was erroneous
since Regulus was prejudiced because it had neither the opportunity to
depose Still's expert nor retain its own expert on the UCC issues. The
Court agrees with Regulus and, therefore, grants its Motion for
A motion for reconsideration is appropriate only where: (1) there has
been an intervening change in controlling law; (2) new evidence is
available; or (3) there is need to correct a clear error of law or
prevent manifest injustice. N. River Ins. Co. v. Cigna Reinsurance Co.,
52 F.3d 1194, 1218 (3d Cir. 1995). "The purpose of a motion for
reconsideration is to correct manifest errors of law or fact or to
present newly discovered evidence." Drysdale v. Woerth, 153 F. Supp.2d 678,
682 (E.D. Pa. 2001)(citation omitted). However, motions for
reconsideration should be granted sparingly "[b]ecause federal courts
have a strong interest in the finality of judgments." Id. (citation
Still's Second Amended Complaint did not include any claim under the
Although Still's pleadings did not include any UCC claims, Still
was permitted to amend his pleadings during trial to include the UCC
issues of "commercial reasonableness" and "manifest unreasonableness"
with respect to his claims for Conversion and Wrongful Seizure set forth
in Counts XX and XXII of the Second Amended Complaint. This amendment was
pursuant to Federal Rule of Civil Procedure 15(b).*fn3
A. Amendment Pursuant to Federal Rule of Civil Procedure 15(b)
Under Federal Rule of Civil Procedure 15(b), "the district court
may . . . permit amendments to conform to the evidence only if an issue
has been tried with the express or
implied consent of the parties and the opposing party will not thereby be
prejudiced." Evans Prods. Co. v. W. Am. Ins. Co. 736 F.2d 920, 924 (3d
Cir. 1984). Regarding the pivotal role played by consent, either express
or implied, to a Rule 15(b) amendment, the Court of Appeals for the Third
Circuit has stated that "[i]f the issue . . . has not been tried with the
consent of the parties, then an amendment to conform to the pleadings
will not be permitted no matter when made." Douglas v. Owens, 50 F.3d 1226,
1236 (3d Cir. 1995) (quotation and internal quotation marks omitted).
Determining whether an issue has been tried by implied consent depends
upon "whether the parties recognized that the unpleaded issue entered the
case at trial, whether the evidence that supports the unpleaded issue was
introduced at trial without objection, and whether a finding of trial by
consent prejudiced the opposing party's opportunity to respond." Id.
(quoting Portis v. First Nat'l Bank, 34 F.3d 325, 332 (5th Cir.
1994))(internal quotation marks omitted). "The primary consideration in
determining whether leave to amend under Fed.R.Civ.P. 15(b) should be
granted is prejudice to the opposing party." Evans Prods, 736 F.2d at 924
(citation omitted). "The principal test for prejudice in such situations
is whether the opposing party was denied a fair opportunity to defend and
to offer additional evidence on that different theory." Id. (citation
The Court concludes that the UCC issues of "commercial reasonableness"
and "manifest unreasonableness" were not expressly tried with Regulus'
consent. Regarding the issue of express consent, Regulus argues, and the
Court agrees, that it consistently and repeatedly objected to Still's
attempts to assert the UCC issues. (See N.T. 2/6/03, p. 2-6
(regarding the UCC issue of "manifest unreasonableness," defense counsel
stated that Still "never raised this issue in twenty-nine counts, never.
It's not in this case"); N.T. 2/10/03, p. 127-33 (defense counsel
objected to Still's filing of a supplemental expert report by Gilbert
Matthews regarding the UCC issue of "commercial reasonableness" stating
that "it's late, we think it's prejudicial, we think it should be
stricken");*fn4 N.T. 2/12/03, p. 5-8 (when Still's counsel tried to
argue that the UCC claims were tried with Regulus' express consent, the
Court reminded counsel that Regulus objected to Still's supplemental
expert report regarding the UCC issues), p. 5-6 (during a discussion
about amending the pleadings, Regulus' counsel pointed out that the UCC
issues were "not in the case. And [Still] moved to amend the evidence to
conform to the
trial. We objected to it")). The clearest example of a lack of express
consent by Regulus is found in the trial transcript where Regulus'
counsel stated that Regulus opposed Still's motion to amend the pleadings
to conform to the evidence under Rule 15(b). (N.T. 2/11/03, p. 150, lines
In light of the aforementioned, Regulus clearly opposed amendment of
Still's pleadings to include issues under the UCC. In this same vein,
Regulus also opposed the introduction of Gilbert Matthews' supplemental
report based, in part, upon the premise that it improperly addressed the
UCC issue of "commercial reasonableness" which, Regulus argued, was not
in the case. As a result, the record does not support a finding that the
UCC issues were tried with the ...