Searching over 5,500,000 cases.


searching
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.

Calhoun v. Mann

January 22, 2009

DAVID CALHOUN PLAINTIFF,
v.
KENYA MANN, JOEL GOLDSTEIN, AND CYNTHIA DAUB, DEFENDANTS.



The opinion of the court was delivered by: Buckwalter, S. J.

MEMORANDUM

Presently before this Court is Plaintiff's Motion for Reconsideration as well as the Response of Defendants Kenya Mann and Joel Goldstein. For the reasons discussed below, Plaintiff's Motion for Reconsideration is denied in part.*fn1

I. LEGAL STANDARD

Local Rule 7.1(g) permits motions for reconsideration. E.D. PA CIV. P. 7.1(g).

Such motions are analogous to those brought under Federal Rule of Civil Procedure 59(e) whose purpose 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); see Kennedy Indus. v. Aparo, Civ. A. No. 04-5967, 2006 WL 1892685, at *1 (E.D. Pa. Jul. 6, 2006).

Given a court's interest in the finality of it judgments, "[m]otions for . . . reconsideration should be granted sparingly and may not be used to rehash arguments which have already been briefed by the parties and considered and decided by the Court." Ciena Corp. v. Corvis Corp., 352 F. Supp. 2d 526, 527 (D. Del. 2005). Reconsideration is not permitted simply to allow a "second bite at the apple." See Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995). Litigants who fail in their "first attempt to persuade a court to adopt its position may not use a motion for reconsideration either to attempt a new approach or correct mistakes it made in its previous one . . . . [or] to argue new facts or issues that inexcusably were not presented to the court in the matter previously decided." Kennedy Indus., 2006 WL 1892685, at *1 (quotation omitted); see also Brambles USA Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990) (it is not appropriate to relitigate issues already decided by a court on a motion for reconsideration).

The Third Circuit has stated that the party seeking reconsideration must demonstrate "at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion . . .; 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).

II. DISCUSSION

A. Motion for Reconsideration

Plaintiff's Motion for Reconsideration presents two arguments: (1) this Court should have granted him leave to amend in lieu of dismissing his claim; and (2) the Motions to Dismiss should have been treated as Motions for Summary Judgment.

1. Plaintiff Should Not Be Granted Leave to Amend

In his Response to the AUSA Motion to Dismiss, Plaintiff requested that "[i]f this Court finds that there does not exist sufficient specificity for a cognizable claim of conspiracy Plaintiff requests leave to amend the complaint on the grounds that his pro se status and absence of any formal legal education in law has prevented him from formulating the allegations properly on the first attempt." (Pl.'s Mot. for Recons. ¶ 1 (citing Pl.'s Resp. to Mot. To Dismiss, Calhoun v. Daub, 08-458, Doc. No. 21, p. 20.)) Plaintiff asserts that this Court should have construed this statement as a request for "Motion for Leave to Amend the Complaint in Order to allow greater specificity of the allegations." (Id. at ¶ 2.) In his Motion, Plaintiff seeks this Court's reconsideration of its "December 18th Order by allowing Plaintiff leave to amend his complaint and allowing a refiling of Plaintiff's Motion for Extension of Time." (Id. at 2.)

This Court has provided Plaintiff with considerable latitude: granting him leave to file an Amended Complaint, and providing him with additional time to respond to the AUSA Motion to Dismiss (Docs. No. 10, 19). Granting Plaintiff's present Motion would permit an unwarranted "second bite at the apple." Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995). Plaintiff provides no new evidence, or intervening changes in the controlling law. Regarding Defendants Mann and Goldstein, Plaintiff provides no new facts. See Jackson v. Rohm & Haas Co., Civ. A. No. 06-1540, 2007 WL 579662, *2 (3d Cir. Feb. 26, 2007) (granting motions for reconsideration only to "correct manifest errors of law or fact or to present newly discovered evidence") (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). As it pertains to Defendants Mann and Goldstein, Plaintiff's Motion for Reconsideration is denied.

Regarding Defendant Daub, Plaintiff present new facts justifying further consideration of his Motion. Based on the court docket, this Court previously determined that Plaintiff did not timely respond to the Parole Board Motion to Dismiss. But Plaintiff now asserts that his court filing was lost in the mail and provides an affidavit stating that he "timely filed a Motion for Expansion of Time to File Response to Defendant Cynthia Daub's Motion to Dismiss." (Mot. to Recons., Ex 5.) He also attached, as an exhibit, an October 16, 2008 letter written by Toby D. Slawsky, Circuit Executive for the Third Circuit, addressed to Plaintiff stating that "an investigation of your complaint revealed a problem with the mail ...


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.