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Keel-Johnson v. Amsbaugh

July 7, 2009

JILLIAN KEEL-JOHNSON, AND SCOTT COREY JOHNSON, PLAINTIFFS
v.
GLENN A AMSBAUGH, M.D. ET AL. DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On March 10, 2009, the Court issued an order denying Defendants' separate Rule 41(b) motions to dismiss Plaintiffs' complaint. (Doc. No. 65.) Defendants timely filed a joint motion for reconsideration of the Court's order or, in the alternative, a motion that the Court's order be certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (Doc. Nos. 66-67.)

A. Reconsideration

The typical motion for reconsideration is made pursuant to Rule 59(e) as a motion to alter or amend judgment. See Carrascosa v. McGuire, 520 F.3d 249, 253 n.3 (3d Cir. 2008). Here, no judgment has been entered by the Court's March 10 order and it is interlocutory, so any reconsideration must be considered under authority granted by Rule 54. Fed. R. Civ. P. 54(b). As the Defendants point out, however, courts have tended to analyze motions for reconsideration of interlocutory orders similarly to final orders: "[r]egardless of the subject order, 'the purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.'" Confer v. Custom Engineering Co. Employee Health Ben. Plan, 760 F. Supp. 75, 77 (W.D. Pa. 1991) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir. 1985)).

Motions for reconsideration are granted sparingly in the interest of finality. Dayoub v. Penn-Del Directory Co., 90 F. Supp. 2d 636, 637 (E.D. Pa. 2000). Of course, dissatisfaction with the Court's ruling is not a proper basis for reconsideration; a party may not use the motion to reargue matters already argued or relitigate a point of disagreement between the Court and the party. Lester v. Percudani, No. 04-CV-0832, 2008 WL 4722749, *3 (M.D. Pa. 2008) (quoting Abu Jamal v. Horn, No. Civ. A. 99-5089, 2001 WL 1609761, *9 (E.D. Pa. 2001)).

The Defendants argue that the Court should grant their motion because the Court's order is based upon clear errors of law in that it: (1) allows the outcome of two identical cases, applying the same substantive state law, to be determined by whether the case was filed in state or federal court; (2) is in conflict with other holdings from the Middle District and Third Circuit on the same issue; (3) incorrectly applies state procedural rules to a federal case; and (4) misapprehends the intent of the state procedural rules being applied.

(Doc. No. 67 at 2.) After careful review of the Defendants' arguments in support of both their motion for reconsideration and original motion to dismiss, the Court must agree with the Plaintiffs that "the defendants have repeated arguments based on abrogated law and have provided no basis for this Court to question its initial analysis . . . ." (Doc. No. 69 at 6.) The Defendants largely repeat the same arguments made in support of their original motion, adding mainly that the Court's failure to adopt these arguments was a clear error of law. In fact, entire sections of the Defendants' briefs in support of the motion for reconsideration and original motion to dismiss are nearly identical. (See Doc. No. 53 at 4-6; Doc. No. 67 at 6-8.) As has been recognized, "[t]o the extent that a party simply repeats itself, it may be in serious danger of displaying nothing more than its dissatisfaction with the court's ruling." A&H Sportswear Co., Inc. v. Victoria's Secret Stores, Inc., No. Civ. A. 94-7408, 2001 WL 881718, *1 (E.D. Pa. 2001).

Further, the Defendants have not persuasively shown that the Court has committed a clear or manifest error of law in its order such that the interests of finality should be disturbed by granting reconsideration. Accordingly, the Defendants' motion for reconsideration will be denied.

B. Certification for Appeal

In support of certification, the Defendants rely principally on their arguments in support of reconsideration and also point to the Court's statement in the March 10 order that "application of the COM rule in federal court is complicated by the procedural differences between state and federal court systems." (Doc. No. 67 at 12.) Defendants also point to other district court opinions that, in a similar context, seemingly did not address or discuss the amended certificate of merit rules. (Doc. No. 72 at 6.)

An interlocutory order that is not otherwise appealable, such as the Court's March 10 order, can be certified for a potential appeal under 28 U.S.C. § 1292(b), which provides in pertinent part:

[w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. § 1292(b). Despite this statute, "[i]t is well established that federal law expresses a strong policy against piecemeal appeals." Zygmuntowicz v. Hospitality Investments, Inc., 828 F. Supp. 346, 353 (E.D. Pa. 1993) (citing Freeman v. Kohl & Vick Machine Works, Inc., 673 F.2d 196, 201 (7th Cir. 1982)). The Third Circuit has stated that such certification should be granted sparingly and "used only in exceptional cases." Id. (citing ...


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