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Strayer v. Bare

April 28, 2010

BRIAN STRAYER AND THE PENNSYLVANIA LAWYERS FUND FOR CLIENT SECURITY, PLAINTIFFS
v.
DOUGLAS BARE, ESQ. AND DARRYL CUNNINGHAM, ESQ., DEFENDANTS
DOUGLAS BARE, ESQ. AND DARRYL CUNNINGHAM, ESQ., THIRD-PARTY PLAINTIFFS
v.
STEVEN STAMBAUGH, ESQ. AND ANITA LIVADITIS, THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM and ORDER

Before the court are the defendants' motions for reconsideration (Docs. 181, 183) of our order (Doc. 180) granting, in part, and denying, in part, the defendants' motions for summary judgment.

LEGAL STANDARD

"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 799 F.2d 906, 909 (3d Cir.1985); Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The movant must demonstrate one of three grounds in order for such a motion to be granted: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or to prevent manifest injustice. Max's Seafood Cafe, 176 F.3d at 677. A motion for reconsideration is not a proper vehicle to merely attempt to convince the court to rethink a decision it has already made. Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993).

DISCUSSION

The defendants do not point to a change in controlling law or the availability of new evidence, therefore we will treat their motions as seeking correction of a clear error of law. The court will address the claims of each defendant, in turn.

A. Defendant Douglas Bare

1. RICO

Defendant Bare argues that no genuine issue of material fact exists as to whether he violated 18 U.S.C. § 1962(c) the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Bare claims that the court improperly relied on the prior criminal trial testimony of Mark David Frankel, Anita Livaditis, and Steven Stambaugh, in finding a genuine issue of material fact. Bare argues that this testimony is inadmissible under Federal Rule of Evidence 804(b)(1). We decline to rule at this juncture whether or not the prior criminal trial testimony will be admissible at trial, but note that the transcripts were made a part of the record at summary judgment. It would have been premature, at the summary judgment stage, to rule that prior sworn testimony was inadmissible hearsay without knowing the purpose for which the testimony was being offered or whether or not the declarant was available. Accordingly, Bare's motion for reconsideration will be denied on this point.

Bare further argues that there is nothing improper, per se, with Bare allegedly setting up automated clearinghouse ("ACH") software to pay tax obligations from the interest-on-lawyers'-trust account ("IOLTA"). Whether or not that statement is accurate, the significance of Bare allegedly directing the ACH software to pay the firm's tax obligations from the IOLTA account is that it involves the use of interstate wire communications-- an element of a RICO violation. See United States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001). Because the court has already decided the issue of Bare's RICO violation, Bare's motion for reconsideration will be denied. See Glendon Energy, 836 F. Supp. at 1122.

Finally, Bare argues that Mark David Frankel made all financial decisions to the exclusion of Bare, despite Bare's official titles. The court has already decided that a reasonable jury could find that Bare participated in the operation of the enterprise, for RICO purposes, regardless of the fact that Mark David Frankel exercised more control. Bare merely seeks to have the court rethink a decision it has already made. Thus, Bare's motion for reconsideration is inappropriate. See Glendon Energy, 836 F. Supp. at 1122.

2. Statute of Limitations

Defendant Bare next argues that Christina M. Stark, an individual claimant of the Plaintiff Pennsylvania Lawyers Fund for Client Security ("the Fund "), is barred by the statute of limitations for tort claims. Bare points to Stark's statement of claim where she indicates that she knew of her injury as of November 5, 2004. (Doc. 151-7 at 6). Bare is correct-- the court made a clear factual error in its order denying summary judgment on Stark's claim. Stark discovered her loss more than two years before the Fund filed suit on January 11, 2007-- therefore her claim is barred. See Dalrymple v. Brown, 701 A.2d ...


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