Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Frisof v. Swift Transportation Co.

July 28, 2008


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are Plaintiff Marie Frisof's motion for reconsideration (Doc. 28) of this Court's Order (Doc. 27) dismissing Plaintiff's Complaint and motion to amend her Complaint (Doc. 29). Plaintiff's motions will be denied because it would be inefficient and unjust for Plaintiff's claim to be litigated in two (2) distinct district courts.


After she was a victim in a hit-and-run car accident involving a tractor trailer, Plaintiff Marie Frisof filed a Complaint against Defendants Swift Transportation Co., Inc.; Swift Transportation Corp.; Swift Leasing Co., Inc.; Sparks Finance Co., Inc., d/b/a Swift Transportation Co.; Saint Corp; John Doe; and Francisco Aguilar.(Doc. 1.) Plaintiff filed her Complaint in the Middle District of Pennsylvania on December 27, 2007. (Br. in Supp., Doc. 30, at 5.) On the following day, December 28, Plaintiff filed an identical complaint in the Supreme Court of New York. (Id.) On February 8, 2008, Plaintiff's New York case was removed to the Eastern District of New York. (Id. at 6.) Defendants filed a motion to dismiss based on forum non conveniens in the New York matter on April 30, 2008, and Plaintiff indicates that this matter remains unresolved. (Id.) On April 28, 2008, Defendants filed a partial motion to dismiss in the instant action, but on June 23, 2008, this Court dismissed Plaintiff's Complaint for lack of jurisdiction because the presence of a John Doe Defendant destroyed complete diversity. (Doc. 27.) On June 27, 2008 Plaintiff filed a motion for reconsideration of this decision and a motion to amend her Complaint.


I. Motion to Amend

Under Rule 15(a) of the Federal Rules of Civil Procedure, "a party may amend the party's pleadings . . . by leave of court . . . and leave shall be freely given when justice so requires." FED. R. CIV. P. 15(a).

While Rule 15 liberally allows leave to amend be "freely given," district courts have the discretion to deny a motion for leave to amend where it is apparent from the record that: (1) there is undue delay, bad faith or dilatory motive; (2) the amendment would be futile; or (3) the amendment would prejudice the other party. See Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).

It is within the sound discretion of the trial court to determine whether a party shall have leave to amend pleadings out of time. See Foman v. Davis, 371 U.S. 178, 182 (1962); Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir. 1981). However, "[i]n the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of the amendment, etc. -- the leave sought should, as the rules require, be 'freely given.'" Foman, 371 U.S. at 182.

In the Third Circuit, the touchstone for the denial of leave to amend is undue prejudice to the non-moving party. See Heyl, 663 F.2d at 425; Cornell & Co., Inc. v. OSHRC, 573 F.2d 820, 823 (1978). Merely claiming prejudice, however, is not enough to prevent the leave from being granted. See Heyl, 663 F.2d at 426. The non-moving party "must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the [moving party's] amendments been timely." Id. When the motion for leave to amend is made before trial begins, prejudice vel non generally turns on whether the non-moving party would be able, without undue burden, to conduct any additional discovery necessitated by the amendment. See, e.g., Dole v. Arco Chem. Co., 921 F.2d 484, 488 (3d Cir. 1990) (possibility that some additional discovery would be required was not unduly prejudicial).

II. Motion for Reconsideration

A motion for reconsideration is governed by Rule 59(e) of the Federal Rules of Civil Procedure, which allows a party to move to alter or amend a judgment within ten days of entry. FED. R. CIV. P. 59(e). The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). A judgment may be altered or amended if the party seeking reconsideration establishes at least one of the following: "(1) an intervening change in controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Café, by Lou-Ann, Inc., v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). "A motion for reconsideration is not to be used as a means to reargue matters already argued and disposed of or as an attempt to relitigate a point of disagreement between the Court and the litigant." Ogden v. Keystone Residence, 226 F. Supp.2d 588, 606 (M.D. Pa. 2002). "[R]econsideration motions may not be used to raise new arguments or present evidence that could have been raised prior to the entry of judgment." Hill v. Tammac Corp., Civ. A. No. 05-1148, 2006 WL 529044, at *2 (M.D. Pa. Mar. 3, 2006). Lastly, the reconsideration of a judgment is an extraordinary remedy, and should be granted sparingly. D'Angio v. Borough of Nescopeck, 56 F. Supp.2d 502, 504 (M.D. Pa. 1999).


I. Motion to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.