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Buschmeier v. G&G Investments

May 6, 2009

PETRA BUSCHMEIER, PLAINTIFF / JUDGMENT CREDITOR,
v.
G&G INVESTMENTS, INC., DEFENDANT / JUDGMENT DEBTOR.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court is the MOTION FOR RECONSIDERATION filed by Plaintiff / Judgment Creditor Petra Buschmeier (Document No. 203) and the REPLY IN OPPOSITION filed by Respondents John J. Ghaznavi and Patrick T. Connelly (Document No. 205). For the reasons that follow, the Motion will be denied in part and granted in part.

Background

Plaintiff / Judgment Creditor Petra Buschmeier ("Buschmeier") requests that the Court reconsider its Memorandum Opinion and Order dated January 14, 2009, which dismissed Buschmeier's Complaint in Contempt against John J. Ghaznavi ("Ghaznavi") and Patrick T. Connelly ("Connelly") in their capacities as corporate officers of Defendant / Judgment Debtor G&G Investments, Inc. ("G&G").

Buschmeier argues that reconsideration is appropriate because the Court made a finding which is "plainly contradicted by the evidence of record" and that the Court "made a clear error of law by imposing upon Buschmeier the burden of showing by clear and convincing evidence that Respondents Ghaznavi and Connelly did not take all reasonable steps to comply with this Court's Order of July 15, 2004 directed to G&G."

Not surprisingly, the Respondents contend that the Memorandum Opinion and Order of January 14, 2009 properly dismissed Plaintiff's Complaint in Contempt and denied Plaintiff's Motion for Sanctions.

Legal Standard

Generally, a motion for reconsideration will only be granted if: (1) there has been an intervening change in controlling law; (2) new evidence, which was not previously available, has become available; or (3) necessary to correct a clear error of law or fact or to prevent manifest injustice. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 47 U.S. 1171 (1986).

There is no dispute that there has been no intervening change in controlling law or that new evidence has become available. Rather, Buschmeier argues that reconsideration is necessary to correct a clear error of law and/or fact.

Discussion

A. Alleged Error of Fact

In making its Findings of Fact, the Court considered the entirety of the evidence and found that Buschmeier's prior counsel had made a misrepresentation that "was plainly inaccurate insofar as the correspondence of July 29, 2004, advised counsel for Buschmeier of the sixty-three boxes of documents available for inspection, which was reconfirmed by Stanley J. Parker's correspondence of September 30, 2004, in which he advised of the flood destruction of records at G&G's offices at 3140 William Flynn Highway, while the boxes at 4790 William Flinn Highway were unaffected by the flood and available for review." Memorandum Op., at ¶ 26. Furthermore, the Court's finding is clearly supported by the March 8, 2006, correspondence from Buschmeier's current counsel, Timothy J. Cornetti, Esquire, to Attorney Parker which states, in pertinent part, "[o]f those 63 boxes, 15 were labeled as being produced by G&G Investments. . . ." Ex. 27 (emphasis added).

Furthermore, the Court relied upon the unrebutted testimony of Connelly who testified that after learning of the Court's July 15, 2004 Order(s),*fn1 he charged his staff with compiling responsive documents and that it was his understanding that the production constituted "full compliance with the Order of the Court to produce records . . . and to comply with the Order to provide that by July 31st." (Vol. II, p. 45). Significantly, Connelly also testified that the sixty-three (63) boxes contained documents of G&G Investments, Inc., and of the Subpoenaed Entities.

Also of import to the Court's finding was Connelly's unrebutted testimony that in October 2005 he returned, at the request of counsel, to 4790 William Flinn Highway to inspect the sixty-three (63) boxes and discovered that most of the responsive documents of G&G Investments had been assembled for production in July 2004, had been moved from 3140 William Flinn Highway to ...


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