IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
February 7, 2011
ACE USA, ET AL.
The opinion of the court was delivered by: O'neill, J.
Now before me is plaintiff Paula Brandl's motion for reconsideration of my Order of January 14, 2011 to the extent that it granted defendant Life Insurance Company of North America's December 7, 2010 Rule 12 Motion and dismissed plaintiff's Short Term Disability, Pennsylvania Wage Payment and Collection Act and Breach of Contract claims against LINA, dismissed plaintiff's first amended complaint against CIGNA Group Insurance for lack of personal jurisdiction, and struck Plaintiff's jury trial demand as to all claims asserted against LINA. Plaintiff never responded to LINA's Rule 12 motion and asserts that reconsideration is warranted because she was not served with the motion. For the reasons that follow, I will deny plaintiff's motion.
On July 16, 2010, plaintiff filed a complaint against ACE USA; ACE INA Holding, Inc. (collectively, the ACE Defendants); ESIS, Inc.; LINA; and Cigna Group Insurance, a subsidiary of Cigna. On October 11, 2010, the ACE defendants filed a motion to stay and compel arbitration. According to the certificate of service filed with the motion, the motion was served electronically on counsel for plaintiff (no other form of service was noted). Plaintiff electronically filed a timely response to the ACE defendants' motion on October 29, 2010, after electronically filing a stipulation for extension of time in which to respond. The ACE defendants filed a reply brief on November 24, 2010. According to the certificate of service filed with the reply brief, it was served electronically on counsel for plaintiff. On November 24, 2010, plaintiff electronically filed a motion seeking leave to file a further response to the ACE Defendants' motion. I granted plaintiff's motion for leave to file a response on November 29, 2010. On December 7, 2010, LINA filed a Rule 12 Motion seeking to dismiss as to LINA plaintiff's Short Term Disability, Pennsylvania Wage Payment and Collection Act and Breach of Contract claims, to dismiss plaintiff's first amended complaint against CIGNA group insurance for lack of personal jurisdiction, and to strike Plaintiff's jury trial demand as to all claims asserted against LINA. According to the certificate of service filed with the motion, the motion was served electronically on counsel for plaintiff. Plaintiff failed to respond to LINA's motion. On January 6, 2011, plaintiff electronically filed a motion for leave to amend her answer to the ACE Defendants' motion to stay and compel arbitration. On January 14, 2011, I issued an Order and Memorandum Opinion granting both LINA's Rule 12 motion and the ACE Defendants' motion to compel arbitration and for a stay. Plaintiff electronically filed the instant motion for reconsideration on January 24, 2011.
A party may "move for reconsideration or reargument of any judicial ruling within 10 days after the entry of the judgment, order or decree concerned." Local R. Civ. P. 7.1(g). A party seeking reconsideration may prevail if it can establish "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion . . . ; or (3) the need to correct a clear error of law or to prevent manifest injustice." Shaw v. Parker Hannifin Corp., No. 08-1204, 2008 WL 2609827, at *2 (E.D. Pa. Jun. 27, 2008) (citations omitted).*fn1 Plaintiff fails to establish any of the foregoing circumstances in her motion for reconsideration.
Plaintiff, through her attorney, asserts that she failed to respond to LINA's Rule 12 motion "not because of any oversight," but because she "has not agreed to be served electronically" and further she "never received any electronic communication from counsel for LINA giving notice of the filing of the subject motions." Pl.'s Mot. for Reconsid. at ¶ 5. Plaintiff's specious argument clearly disregards Local Rule 5.1.2. "Unless otherwise excused, attorneys admitted to the bar of this court . . . are required to register as ECF Filing Users of the court's ECF system." Local Rule Civ. P. 5.1.2(4)(a) (emphasis added). Once registered, an ECF filing user must provide a written request to the clerk of court request in order to withdraw from participation in the ECF System. Local Rule Civ. P. 5.1.2(2)(c). Plaintiff does not contend that her attorney ever sought to withdraw from participation in the ECF System. Indeed, plaintiff filed docket entries 7, 9, 15, 17, 19, 20, 21, and 25 -- the latter being the instant motion for reconsideration -- using the ECF System and could not have done so if her attorney were not a registered ECF Filing User.
Notwithstanding plaintiff's counsel's contention to the contrary, he agreed to electronic service of LINA's Rule 12 motion. Local Rule 5.1.2(4)(c) provides that "[r]egistration as an ECF Filing User constitutes agreement to receive and consent to make electronic service of all documents . . . . This agreement and consent is applicable to all future cases until revoked by the ECF Filing User." Local Rule Civ. P. 5.1.2(4)(c).*fn2 Plaintiff has not provided any evidence that her attorney revoked his consent to electronic service prior to December 7, 2010.
Further, LINA was not required to give plaintiff notice of the filing of its Rule 12 motion where her attorney had consented to electronic service. Local Rule 5.1.2(8) provides that [w]hen an ECF filing user electronically files a pleading or other document using the ECF system, a Notice of Electronic Case Filing shall automatically be generated by the system, and shall be sent automatically to all parties entitled to service under the Federal Rules of Civil Procedure . . . who have consented to electronic service. Electronic Service of the Notice of Electronic Case Filing constitutes service of the filed document to all such parties and shall be deemed to satisfy the requirements of Rule 5(b)(2) of the Federal Rules of Civil Procedure . . . ."
Local R. Civ. P. 5.1.2.(8)(a). When LINA filed its Rule 12 Motion via the ECF system on December 7, 2010, it received a court-generated ECF confirmation of service email which provided that notice of the filing had been electronically mailed to Leo A. Hackett, counsel for plaintiff, at firstname.lastname@example.org. Plaintiff has provided me with no reason to believe that this notice should not be deemed to satisfy the requirements of Rule 5(b)(2). "Relief from an actual failure to receive electronic service, of a motion for example, may be granted in the court's discretion, but a mere claim that an attorney was unaware that he had consented to electronic service despite the language in the ECF user agreement will not be excused." Shaw v. Parker Hannifin Corp., No. 08-1204, 2008 WL 2609827, at *4 (E.D. Pa. Jun. 27, 2008) (citation omitted).
Finally, plaintiff argues that a manifest injustice will result if she is not given an opportunity to respond to LINA's Rule 12 motion. I disagree. Plaintiff's reconsideration motion appears to challenge only my dismissal of Cigna Group Insurance and not my other substantive rulings. In its Rule 12 motion, LINA represented that CIGNA Group Insurance is not a distinct legal entity capable of being sued as it is merely "a registered service mark of CIGNA Intellectual Property, Inc." In her motion for reconsideration, plaintiff has not supplied me with reason to believe that she would be able to establish that CIGNA Group Insurance is a person over whom I have jurisdiction pursuant to Rule 17(b) if I were to provide her with an opportunity to file a response to LINA's motion.
An appropriate Order follows.