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Estate of Brewington v. Lombardo

November 3, 2010

THE ESTATE OF PERRY BREWINGTON DECEDENT, BY AND THROUGH THE ADMINISTRATOR OF THE ESTATE, JAMES D. ROSEN
v.
POLICE OFFICER LOMBARDO AND POLICE OFFICER HORNER AND CITY OF PHILADELPHIA



The opinion of the court was delivered by: Thomas J. Rueter Chief United States Magistrate Judge

MEMORANDUM OF DECISION

Presently before the court is plaintiff's Motion For Reconsideration of the Court's Order Denying Plaintiff's Motion For A New Trial Pursuant to Federal Rules of Civil Procedure 59(a) and 60(b) (the "Motion") (Doc. No. 78). For the reasons that follow, the Motion is DENIED.

I. FACTS

Plaintiff, the Estate of Perry Brewington, filed this action against Philadelphia Police Officers Joseph Lombardo and Richard Horner alleging that decedent Perry Brewington's constitutional rights were violated when he was shot and killed by Ramon Mills on November 16, 2003. Specifically, plaintiff alleges that the decedent's Fourteenth Amendment Due Process Rights were violated when the two defendant officers failed to seize a firearm that Ramon Mills allegedly had on his possession at the time the officers served Mills with a Protection From Abuse Order ("PFA Order").

A jury trial was held before the undersigned from August 11, 2010 to August 13, 2010. The evidence at trial was as follows.*fn1

On November 16, 2003, the decedent was shot and killed by Ramon Mills. Ramon Mills was the boyfriend of the decedent's sister, Syeta Brewington, and the father of her child. Ramon Mills co-habitated with Syeta and allegedly had physically abused her. On November 13, 2003, after a fight, Syeta Brewington obtained a PFA Order against Ramon Mills. In her application for the PFA Order, Syeta Brewington claimed that Ramon Mills physically abused her and owned a firearm.

On November 16, 2003, at the request of Syeta Brewington, Philadelphia Police Officers Richard Horner and Joseph Lombardo served the PFA Order on Mills. After the PFA Order was served, a verbal argument occurred between Ramon Mills, Syeta Brewington, Syeta's mother, Dolores Burnett, and her sister, Krystle Brewington. Although the decedent was not present during this argument, Syeta testified that during the argument Mills told her he was going to kill her and her brother, Perry. At trial, both police officers denied having heard any threats made by Mills toward anyone, although they did say both Mills and the Brewington family were yelling and cursing at each other.

In an attempt to break up the argument, Officers Horner and Lombardo asked the parties to leave the scene. Eventually, all parties dispersed and the police officers left to resume their normal duties. Approximately one hour later, Ramon Mills shot and killed Perry Brewington. The two defendant police officers were not present at the shooting.

At trial, plaintiff argued that the police officers created an immediate danger to Perry Brewington by not seizing the firearm from Ramon Mills, or otherwise arresting him when they allegedly heard Mills tell Syeta that he was going to kill her and decedent. After several days of trial, the jury returned a verdict in favor of the two police officers, finding that they were not deliberately indifferent to decedent's constitutional rights.

After the verdict, plaintiff filed a motion pursuant to Fed. R. Civ. P. 60(a) claiming that the court should order a new trial because the two officers allegedly lied at trial when they testified that the PFA Order served upon Mills did not require the officers to seize any firearms on his possession. By Memorandum Order dated September 29, 2010, the court denied the motion finding that plaintiff had not shown by clear and convincing evidence that the two defendants engaged in fraud or misrepresentation. On October 8, 2010, plaintiff filed a motion for reconsideration of this court's September 29, 2010 Order. In support of the motion for reconsideration, plaintiff raises two new arguments not previously raised in the motion for a new trial. First, plaintiff argues that because the Honorable Edmund V. Ludwig denied summary judgment to defendants, under the "law of the case doctrine" the defendant police officers cannot testify that the PFA Order did not require them to seize any firearms from Ramon Mills. Second, plaintiff argues that under the doctrine of judicial estoppel, the police officers cannot now claim that they were not required by the PFA Order to seize a weapon from Ramon Mills.

II. DISCUSSION

A. New Issues Raised In The Motion For Reconsideration

The two issues raised in the motion for reconsideration - - the law of the case and judicial estoppel doctrines - - were not raised in the original motion for a new trial. This is improper. Plaintiff's motion for reconsideration is an impermissible attempt at a "second bite at the apple." Having had its motion for a new trial denied, plaintiff now has advanced two new issues not previously raised to the court. A motion for reconsideration cannot be used as a means to argue new issues that "inexcusably were not presented to the court in the matter previously decided." Bhatnagar v. Surrendra Overseas, Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995) (quoting Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D. Del. 1990)). Thus, the Motion is denied on this basis. Nonetheless, the court also will deny the Motion on the merits of the two new issues.

B. The Merits of the Two New Issues

1. Law of the Case Doctrine

In the first issue raised in the Motion, plaintiff argues that Judge Ludwig previously ruled that the PFA Order required the officers to remove any firearms from Ramon Mills and the law of the case doctrine precludes the officers from testifying or arguing that the PFA Order did not require them to immediately seize the weapons.

The law of the case doctrine "limits relitigation of an issue once it has been decided" in an earlier stage of the same litigation. In re Continental Airlines, Inc., 279 F.3d 226, 232 (3d Cir.), cert. denied, 537 U.S. 944 (2002). The law of the case doctrine, however, "does not restrict a court's power but rather governs its exercise of discretion." In re City of Philadelphia Litigation, 158 F.3d 711, 718 (3d Cir. 1998). Thus, a court may reconsider a previously decided issue "in extraordinary circumstances such as where: (1) new evidence is available; (2) a supervening new law has been announced; or (3) the earlier decision was clearly erroneous and would create manifest injustice." Id. (citation omitted).

In the instant case, Judge Ludwig denied the defendants' motion for partial summary judgment by Order dated September 15, 2008. In his memorandum supporting his ...


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