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Fortunato v. May

December 16, 2009

JAMES FORTUNATO, DOROTHY FORTUNATO, HUSBAND AND WIFE AND, JENNIFER FORTUNATO, DAUGHTER PLAINTIFFS,
v.
DAVID MAY, NAGLE TOLEDO, INC., NAGLE LINE, INC., NAGLE EQUIPMENT COMPANY, NAGLE TRUCKING, MARK NEWTON DBA SPYDER ENTERPRISES, INC., SPYDER ENTERPRISES, INC., SUN AIRE TRANSPORT CORPORATION, DEFENDANTS, THIRD-PARTY PLAINTIFFS
v.
JOHN A RICHARDSON, D/B/A J&J AMUSEMENTS, INC. THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION

Introduction

Pending before the court is a motion for reconsideration (Docket No. 75) filed by third-party plaintiffs requesting that this court reconsider its memorandum opinion*fn1 (Docket No. 73) and order (Docket No. 74), dated March 16, 2009. In the memorandum opinion, the court dismissed third-party plaintiffs' complaint without prejudice. The court concluded that third-party plaintiffs did not set forth a proper claim pursuant to Rule 14 of the Federal Rules of Civil Procedure. Third-party plaintiffs did not set forth derivative claims against third-party defendant because third-party plaintiffs failed to allege a basis for a right of indemnification or contribution. On April 15, 2009, third-party plaintiffs filed the instant motion for reconsideration and supporting brief (Docket No. 76). On June 11, 2009, the court heard oral argument on the motion for reconsideration and directed the parties to submit supplemental briefing in support of their positions. In their supplemental brief (Docket No. 80) third-party plaintiffs do not set forth any additional facts to establish a basis for indemnification or contribution. Third-party plaintiffs state in a conclusory fashion that it is possible third-party defendant could be a joint tortfeasor. Third-party plaintiffs argue that conclusion is sufficient to cure the deficiencies of their third-party complaint. Because third-party plaintiffs did not provide the court with a factual basis upon which it can determine that there is a plausible claim against third-party defendant for contribution or indemnification, the motion for reconsideration will be denied.

Legal Standard

"'The purpose of a motion for reconsideration,'. . . 'is to correct manifest errors of law or fact or to present newly discovered evidence.'" Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986). A judgment may be altered or amended only if the party seeking reconsideration shows one of the following: (1) an intervening change in controlling law; (2) the availability of new evidence that was not previously available; or (3) the need to correct a clear error of law or to prevent manifest injustice. Id. (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).

Because of the interest in finality, at least at the district court level, motions for reconsideration should be granted sparingly; the parties are not free to relitigate issues the court has already decided. . . . Stated another way, a motion for reconsideration is not properly grounded in a request for a district court to rethink a decision it has already made, rightly or wrongly. . . .

Williams v. Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998) (internal citations omitted).

Discussion

Third-party plaintiffs failed to show the availability of new evidence not previously available or an intervening change in controlling law to support their motion for reconsideration. Third-party plaintiffs' motion, therefore, is best understood as premised on a need to correct a clear error of law or to prevent manifest injustice.

As the court pointed out in its memorandum opinion dated March 16, 2009, a third-party claim pursuant to Rule 14(a) of the Federal Rules of Civil Procedure can only be asserted if it is based upon a theory of secondary or derivative liability of the third-party defendant to the third-party plaintiff. FDIC v. Bathgate, 27 F.3d 850, 873 (3d Cir. 1994). In Bathgate, the United States Court of Appeals for the Third Circuit quoted:

"A third-party claim may be asserted under Rule 14(a) only when the third party's liability is in some way dependent on the outcome of the main claim or when the third-party is secondarily liable to defendant. If the claim is separate or independent from the main action, impleader will be denied."

Id. (quoting 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE §1446 (2d ed. 1990)). It is improper for a third-party complaint to set forth a claim of the third-party defendant's liability to the plaintiff. Toberman v. Copas, 800 F. Supp. 1239, 1242-43 (M.D. Pa. 1992). A proper third-party complaint must set forth a claim of secondary liability, i.e., the third-party defendant must be liable under a theory of derivative liability recognized by relevant substantive laws such as indemnification or contribution. Id. (citing JACK FRIEDENTHAL, MARY KANE AND ARTHUR MILLER, CIVIL PROCEDURE § 6.9 at 362 (1st ed. 1985)).

Contribution is available among joint tortfeasors under the Pennsylvania Contribution Among Tortfeasors Act, 42 PA. CONS. STAT. ANN. ยง 8321 et ...


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