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STILL v. REGULUS GROUP LLC

January 5, 2004.

DAVID B. STILL, Plaintiff,
v.
REGULUS GROUP LLC, et al., Defendants



The opinion of the court was delivered by: ROBERT KELLY, Senior District Judge

MEMORANDUM

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.

I. INTRODUCTION

  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 Page 2 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 Reconsideration.

 II. STANDARD

  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 omitted).

 III. DISCUSSION

  Still's Second Amended Complaint did not include any claim under the UCC.*fn2 Page 3 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 Page 4

  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 Page 5 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 omitted).

  B. Analysis of Amendment

  1. Express Consent

  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 Page 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 Page 7 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 17-23).

  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 ...


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