United States District Court, M.D. Pennsylvania
October 4, 2005.
JEWELCOR INCORPORATED JEWELCOR JEWELERS AND DISTRIBUTORS, INC., and MARKETING OF JEWEL SERVICES, INC., Plaintiffs
MICHAEL KARFUNKEL and GEORGE KARFUNKEL, individually and as partners trading as M & G EQUITIES, a general partnership, and THE SALVATION ARMY, Defendants.
The opinion of the court was delivered by: WILLIAM NEALON JR., Senior District Judge
MEMORANDUM and ORDER
Presently before the court is a Motion for Reconsideration
(Doc. 206) filed by Plaintiffs on August 19, 2005 following the
court's August 5, 2005 order denying their motions for an
extension of time under Rule 6(b) and Relief from Judgment under
Rule 60(a). (Docs. 189, 204). A supporting brief was filed along
with the motion. (Doc. 207). Defendants field a brief in
opposition to the motion on September 8, 2005, to which
Plaintiffs filed a reply brief on September 14, 2005. (Docs. 210,
213). The motion, which challenges the court's ruling denying prejudgment interest, is
now ripe for disposition and, for the reasons set forth below,
the motion will be denied.
This civil matter involved a commercial lease between Plaintiff
Jewelcor, the lessee, and Defendant M& G Equities, the lessor.
Litigation of the rights and obligations under the lease has been
ongoing since 1991, and has proceeded in this court, the United
States Bankruptcy Court for the Middle District of Pennsylvania
and the Court of Appeals for the Third Circuit. The instant
matter was initiated in this court on July 16, 1999, when
Jewelcor filed a complaint alleging, inter alia, that it had
been evicted from the leased premises by M & G and suffered
monetary damages as a result of the eviction. (Doc. 1). In
addition to denying Jewelcor's claims for damages, M & G
submitted a counterclaim alleging that Jewelcor defaulted under
an obligation in the lease requiring the lessee to make extensive
repairs to the roof of the leased building. (Doc. 27).
After adjudicating dispositive motions by both parties, a
non-jury trial was held in November, 2004. On March 22, 2005 the
court concluded that Jewelcor was entitled to damages for M & G's
breach of the lease consisting of the difference between the fair
rental value of the leasehold, less rent due under the lease, for the period of time that Jewelcor was
dispossessed of the leasehold. It was further determined that M &
G was not entitled to recover on its counterclaim seeking
reimbursement for having replaced the roof. Accordingly, Judgment
was entered in the amount of $448,602.99 in favor of Jewelcor on
Count I of its complaint, and against M & G on its counterclaim.
Subsequently, on April 8, 2005, Plaintiff filed a Motion for
Attorneys' Fees, Interest and Costs pursuant to Rules 54(c) and
59(e), (Doc. 186), which Defendants opposed as untimely filed.
(Doc. 187). Plaintiffs thereafter amended their pleading on April
19, 2005, to a Motion for an Extension of Time pursuant to Rule
6(b) and for Relief from Judgment under Rule 60(a). (Doc. 189).
Following briefing on all issues, it was determined that
Plaintiffs' motion seeking prejudgment interest was governed by
Rule 59(e) and thus improperly characterized as one brought under
Rule 60(a). However, given the failure of Plaintiffs to file the
motion within ten (10) days of the entry of judgment, the court
concluded it lacked jurisdiction over the matter and denied
relief. The present motion followed.
A motion for reconsideration is a device of limited utility. It
may be used only to seek remediation of manifest errors of law or
fact or to present newly discovered precedent or evidence which, if discovered
previously, might have affected the court's decision. Harsco
Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir. 1985). It has also
been held that a motion for reconsideration is appropriate in
instances such as where the court has ". . . misunderstood a
party, or has made a decision outside the adversarial issues
presented to the court by parties, or has made an error not of
reasoning, but of apprehension." See Rohrbach v. AT & T Nassau
Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in
part on other grounds on reconsideration, 915 F. Supp. 712 (M.D.
Pa. 1996) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). "Because federal courts
have a strong interest in the finality of judgments, motions for
reconsideration should be granted sparingly." Continental
Casualty Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943
(E.D. Pa. 1995).
A motion for reconsideration is not to be used as a vehicle for
the losing party to rehash arguments previously considered and
rejected. Voelkel v. GMC, 846 F.Supp. 1482, 1483 (D.Kan. 1994),
aff'd, 43 F.3d 1484 (10th Cir. 1994). Indeed, "[a] party's
failure to present his strongest case in the first instance does
not entitle him to a second chance in the form of a motion to
amend." Paramount Pictures Corp. v. Video Broad. Sys., Inc.,
No. 89-1412-C, 1989 WL 159369, at *1 (D.Kan. Dec. 15, 1989) (citing United
States v. Carolina Eastern Chem. Co., Inc., 639 F.Supp. 1420,
1423 (D.S.C. 1986)). Such motions are therefore not appropriate
if the movant intends only that the court hear new arguments or
supporting facts. Van Skiver v. United States, 952 F.2d 1241,
1243 (10th Cir. 1991), cert. denied, 506 U.S. 828,
113 S.Ct. 89, 121 L.Ed.2d 51 (1992). The only circumstances, therefore, in
which a court may appropriately grant a motion for
reconsideration: (1) where the court made a manifest error of
fact or law; (2) where there is newly discovered evidence; or (3)
where there has been a change in the law. Renfro v. City of
Emporia, Kansas, 732 F.Supp. 1116, 1117 (D.Kan. 1990), aff'd,
948 F.2d 1529 (10th Cir. 1991); Ferguson v. McKune,
55 F.Supp.2d 1189, 1192, (D.Kan., 1999), rev'd on other grounds,
Ferguson v. McKune, 229 F.3d 1163 (10th Cir. 2000). (10th Cir.
In Osterneck v. Ernst & Whinney, 489 U.S. 169,
109 S.Ct., 987, 103 L.Ed. 146 (1989), Justice Kennedy, speaking for a
unanimous court, stated in footnote 3:
We do not believe the result should be different
where prejudgment interest is available as a matter
of right. It could be argued that where a party is
entitled to prejudgment interest as a matter of
right, a reexamination of issues relevant to the
underlying merits is not necessary, and therefore the motion should be deemed
collateral in the sense we have used that term.
However, mandatory prejudgment interest, no less than
discretionary prejudgment interest, serves to "remedy
the injury giving rise to the [underlying] action,"
Budinich v. Becton Dickinson & Co., 486 U.S. 196,
200, 108 S.Ct. 1717, 1721, 100 L.Ed. 2d 178 (1988),
and in that sense is part of the merits of the
district court's decision. Moreover, as we said last
Term in Budinich: "[W]hat is of importance here is
not preservation of conceptual consistency in the
status of a particular [type of motion] as `merits'
or `nonmerits,' but rather preservation of
operational consistency and predictability in the
overall application of the [finality requirement] of
§ 1291." Ibid. "Courts and litigants are best served
by the bright-line rule, which accords with
traditional understanding," ibid., that a motion for
prejudgment interest implicates the merits of the
district court's judgment.
Id. at 176.
While the evaluation of the court in footnote 3 in Osterneck
may be considered as dicta, that doesn't mean it should not be
considered by lower courts. Official Committee of Unsecured
Creditors of Cybergenics Corp., ex rel. Cybegenics Corp. V.
Chinery, 330 F.3d 548 (3d Cir. 2003) (Although the Supreme Court
dicta are not binding on the Court of Appeals, the Court of
Appeals does not view such dicta lightly. The Supreme Court uses
dicta to help control and influence the many issues it cannot
decide because of its limited docket.); In re McDonald, 205 F.3d 606 (3d Cir. 2000)
(Courts should not idly ignore a considered statement that the
Supreme Court makes in dicta.); Deedham v. Cumberland,
972 F.2d 453 (1st Cir. 1992) (Courts often, quite properly, give
considerable weight to dictum, particularly to dictum that seems
considered as opposed to casual.); Town Sound and Custom Tops.
Inc., v. Chrysler Motors Corp., 959 F.2d 468 (3d Cir. 1992)
(Courts of Appeal generally consider and respect Supreme Court
dicta as well as its holdings, because the Supreme Court hears
relatively few cases and only uses dicta to give guidance to the
lower courts.); McCoy v. Massachusetts Inst. Of Technology,
950 F.2d 13 (1st Cir. 1991) (Court of Appeals should ordinarily
respect considered Supreme Court dicta.).
Plaintiff has cited pre-Osterneck cases, viz., Barris v.
Bob Drag Chutes & Safety Equip., Inc., 717 F2d 52 (3d Cir.
1983), Hayder v. Scott Aviation, 684 F2d 270 (3d Cir. 1982) and
Glick v. White Motor Co., 458 F2d 270 (3d Cir. 1982) in support
of its argument that Rule 60(a) is the appropriate vehicle for
seeking an award of prejudgment interest. As noted herein, these
cases predate Osterneck and did not have the benefit of the
court's reasoning in that case. In a post-Osterneck case cited
by Plaintiffs, Pfizer Inc. v. Uprichard, ___ F.3d ___, 2005 WL
2077257 (3d Cir. 2005), the Rule 60(a) motion to correct judgment requested the court to include the
pre-judgment interest previously agreed upon. "It is well
established that where a party seeks to alter a judgment to
reflect the District Courts' grant of prejudgment interest,
Rule 60(a) is the proper avenue for making such a request." Id.
(slip opinion at 10) (emphasis added). Pfizer did not dispute
Uprichard's entitlement to prejudgment interest and the district
courts' judgment, unlike our case, specifically included the
words "plus prejudgment interest." Consequently, although
Plaintiffs maintain that this recent decision constitutes a
"change in the law" so as to enable the court to reconsider its
earlier decision, this case is clearly distinguishable. Whereas
Pfizer determined that a Rule 60(a) motion was the proper
vehicle for a party making a request to alter the court's
judgment to reflect an award of prejudgment interest which had
been stipulated by the parties, the instant case neither had a
stipulation by the parties that there would be an award of
prejudgment interest, or the amount thereof, nor did the court in
it March 22, 2005 order make an award of prejudgment interest.
Although Plaintiffs contend that the court alleged failure to
award prejudgment interest was error, the appropriate vehicle
under the circumstances for Plaintiffs to obtain prejudgment
interest on its award was merely to file a Rule 59(e) motion
requesting such interest in a timely manner. Because the error lies not in the court's Memorandum and Order
but in the timeliness of Plaintiffs' motion, it will decline to
revisit the issue and reconsider the earlier order. To summarize,
therefore, the motion for prejudgment interest was denied, not
because it was not addressed, or failed to be considered in the
March 22, 2005 memorandum and Order, but rather because
Plaintiffs' motion failed to be filed within the statutorily
prescribed time period.
Plaintiff also cites Keith v. Truck Stops Corp. Of America,
909 F2d 743 (3d Cir. 1990) but the language quoted therein merely
identifies the issue, viz., "If the motion here involved was
properly made under Rule 60(a), it would have been timely," but
the court concluded that it was not properly made under Rule
60(a) and should have been made pursuant to Rule 59(e). Thus, the
court determined that the award involved in that case, a
discretionary award, should have been made by a motion under Rule
59(e) and not under Rule 60(a). Similarly, reliance on Rosen v.
Rucker, 905 F2d 702 (3d Cir. 1990), is misplaced. In that case,
the court in considering the issue of an award of delay damages
vis-a-vis discretionary prejudgment interest, made a passing
reference in footnote 2 of the language in Osterneck that Rule
59(e), not Rule 60(a), was applicable even where prejudgment
interest was available as a matter of right. In sum, there has been no case subsequent
to Osterneck in which the Court of Appeals questioned or
refused to adopt the statement in that case that "We do not
believe the result should be different where prejudgment interest
is available as a matter of right." Id. at 176.
Plaintiffs obviously believed that Rule 59(e) was to be
utilized in seeking an award of prejudgment interest because
their initial filing of a Motion for Attorneys' Fees, Interest
and Costs on April 8, 2005 (Doc. 186) was a motion brought under
Rule 59(e), not Rule 60(a). Unfortunately, this filing was
For the reasons herein enumerated, the Motion for
Reconsideration (Doc. 206) will be denied. An appropriate order
AND NOW, THIS 4th DAY OF OCTOBER, 2005, IT IS HEREBY
Plaintiffs' Motion for Reconsideration (Doc.206) Is DENIED.
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