The opinion of the court was delivered by: DuBOIS, J.
Presently before the Court is the Motion of Defendants Michael Slawter and TalkPoint Holding, L.L.C., d/b/a TalkPoint Communications for Relief from Judgment Pursuant to Rule 60(b), seeking relief from the Court's denial of defendants' motion for summary judgment. Defendants argue that PrecisionIR, Inc.'s ("PrecisionIR") withdrawal of its Virginia Uniform Trade Secrets Act ("VUTSA") claim in a related case pending in the Southern District of New York, PrecisionIR v. Clepper and Talkpoint Holdings, L.L.C. d/b/a TalkPoint Communications, precludes PrecisionIR's similar VUTSA claim against defendant TalkPoint Communications ("TalkPoint") in the instant case.*fn1 For the reasons set forth below, defendants' Motion for Relief from Judgment Pursuant to Rule 60(b) based on issue preclusion is denied.
The history of this case is set forth in the Court's Order of November 25, 2009 denying the parties' cross-motions for summary judgment. The Court will refer in this Memorandum only to those facts which are relevant to deciding the present motion.
In Clepper, PrecisionIR asserted claims under Virginia law against Brent Clepper and Talkpoint that are similar to the claims in this case. Count IV of the original complaint in Clepper alleged that Clepper and Talkpoint violated the Virginia Uniform Trade Secrets Act. Specifically, PrecisionIR claimed that Clepper learned trade secrets while employed at PrecisionIR, and later utilized these secrets as an employee at TalkPoint, a competitor company. In the case before this Court, PrecisionIR has also alleged that a former employee, Michael Slawter, together with Talkpoint, misappropriated its trade secrets.
In the course of the Clepper case, PrecisionIR filed an Amended Complaint in which it withdrew its VUTSA claim against both Clepper and Talkpoint. Defendants seek relief from this Court's denial of its motion for summary judgment, arguing that plaintiff's withdrawal of the VUTSA claim in the Clepper case precludes plaintiff from asserting the claim in the instant case. The Court concludes that defendants' motion is procedurally improper and, in any event, lacks substantive merit, and therefore denies the motion.
III. Rule 60(b) Does Not Provide Relief from the Denial of a Motion for Summary Judgment
As a threshold matter, Rule 60(b) does not apply to a denial of a motion for summary judgment. Rule 60(b) provides that a "court may relieve a party or its legal representative from a final judgment, order, or proceeding." Fed. R. Civ. P. 60(b). The language of the rule itself make clear that the rule only affords relief from a final order. The Advisory Committee Notes further explain that "the word 'final' emphasizes the character of the judgments, orders, or proceedings from which Rule 60(b) affords relief." Fed. R. Civ. P. 60(b), 1964 Advisory Committee Note.
A denial of a motion for summary judgment is not a final or appealable decision. See, e.g., New York Football Giants, Inc. v. Cmm'r, 349 F.3d 102, 105 (3d Cir. 2003) (citing Ryan v. Cmm'r, 680 F.2d 324, 326 (3d Cir. 1982)); Hart v. Overseas Nat. Airways, Inc., 541 F.2d 386, 394 (3d Cir. 1976). Because the Court's November 25, 2009 Order denying the parties' cross-motions for summary judgment was not a final order, Rule 60(b) is not applicable, and defendants' Rule 60(b) motion must be denied.
Even if Rule 60(b) were an appropriate vehicle to challenge a denial of a motion for summary judgment, defendants would not be entitled to relief. That is so because the issues in Clepper are not identical to the issues in this case.*fn2
The defense of issue preclusion requires that three elements be satisfied: 1) the issue decided in the earlier action must be identical to the one presented in the later action, 2) there must be a final judgment on the merits in the earlier action, and 3) the party against whom preclusion is being applied must have had a full and fair opportunity to litigate the issue in the previous action. See Dici v. Pennsylvania, 91 F.3d 542, 548 (3d Cir. 1996).
The Court concludes that the first of these three elements -- identity of issues -- is not satisfied in this case. The issues relating to the VUTSA claims in Clepper and this case, while similar, are not identical. The Restatement (Second) of Judgments sets forth four factors to consider in determining whether issues are identical: 1) substantial overlap between the evidence or argument to be advanced in the two proceedings, 2) application of the same rule of law, 3) overlap in discovery and pretrial preparation, and 4) how closely related the claims are. Restatement (Second) of Judgments § 27 cmt. c (1982). When two issues involve different facts, issue preclusion will ...