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Thomas P. Jasin v. Dennis Kozlowski and Mark

August 16, 2011


The opinion of the court was delivered by: Chief Judge Kane


Currently pending before the Court are two motions. First, Defendants move for reconsideration of this Court's order granting in part and denying in part Defendants' motion for summary judgment. (Doc. No. 169.) Second, Defendants move for summary judgment on the ground that the judgment reduction rule would reduce any potential recovery in this matter to $0, thus vitiating the need for trial. (Doc. No. 188.) For the reasons stated more fully herein, the Court will grant Defendants' motion for reconsideration.


Plaintiff, pro se, filed a writ of summons in the Court of Common Pleas of Dauphin County, Pennsylvania, against Defendants Tyco International, Dennis Kozlowski, Mark Swartz, and Juergen Gromer on July 23, 2004. (Doc. No. 1-9.) The complaint was filed September 2, 2004. (Id.) Shortly after Defendants removed the case to federal court, the case was transferred to the District of New Hampshire to be adjudicated with other similar cases as part of Multi-District Litigation. (Doc. No. 9.) After nearly four years of litigation, including disposition of motions to dismiss, completion of discovery, and a class-wide settlement of which Plaintiff Jasin opted out, the case was remanded to this Court. (Doc. No. 13.)

Following unsuccessful attempts at settlement, the parties filed cross motions for summary judgment.*fn2 (Doc. Nos. 127, 154.) The Court denied Plaintiff's motion for summary judgment in full and granted Defendants' motion for summary judgment in part on November 17, 2010. (Doc. No. 169.) Defendants moved for reconsideration, in part, of the Court's order on November 17, 2010. (Doc. No. 169.) While briefing on the motion for reconsideration was ongoing, the parties agreed to proceed to mediation, and on December 9, 2010, Magistrate Judge Smyser ordered the parties to appear for a settlement conference on January 20, 2011. (Doc. No. 172.) Magistrate Judge Smyser held discussions with the parties on January 20, 2011, January 28, 2011, and January 31, 2011. (Doc. Nos. 173, 178, 179.) During settlement discussions a discovery dispute arose, which the Court resolved on March 14, 2011. (Doc. No. 187.) Defendants then filed a new motion for summary judgment on March 23, 2011. (Doc. No. 188.)

Following briefing on Defendants' latest motion for summary judgment, on June 8, 2011, the Court ordered the parties to submit status reports indicating whether continued settlement discussions were warranted or if the Court should proceed to resolve the outstanding motions. (Doc. No. 194.) Plaintiff indicated that further settlement discussions may be warranted provided that Defendants were willing to offer a "reasonable" settlement amount. (Doc. No. 196.) Defendants, however, advised the Court that it did not desire to engage in further settlement discussions. (Doc. No. 195.) Accordingly, on June 17, 2011, the Court concluded that further settlement talks are unlikely to be successful and that it would proceed to consider the outstanding motions. (Doc. No. 197.) However, before resolving the motions, the Court requested the parties provide additional briefing. (Id.) The supplemental briefs having been submitted, both motions are now ripe for disposition.


Defendants move for reconsideration of the portion of this Court's November 3, 2010 order, in which the Court relied on the expert report of Dr. Gregg Jarrell in finding that Plaintiff had submitted evidence of loss causation and that accordingly summary judgment was not warranted on that issue. On reconsideration, there are two issues before the Court: (1) whether the Court erred in considering Dr. Jarrell's report; and (2) assuming the Court did err in considering Dr. Jarrell's report, whether the Court should have granted summary judgment on Plaintiff's 10(b), 14(a), and 20(a) claims. After reviewing the standard of review on motions for reconsideration, the Court will consider these issues.

A. Standard of Review

A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has "patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Rohrbach v. AT & T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996) (citation omitted).

It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Cont'l Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995) (citation omitted).

B. Whether the Court Erred in Considering Dr. Jarrell's Report

In Defendants' brief in support of their motion for summary judgment, Defendants argued that Plaintiff could not identify any evidence of loss causation. (Doc. No. 128 at 8, 11-12). Likewise in their statement of undisputed material facts, Defendants stated that "Plaintiff has not identified any expert witnesses or served any expert reports in this action." (Doc. No. 129 ¶ 50.) Defendants went on to note that the deadline for submitting such reports was December 21, 2007. (Id. ¶ 51.) Plaintiff responded with a brief in opposition to which he attached exhibits totaling 2,884 pages. (Doc. No. 154.) In addition, the brief itself referred, albeit obliquely, to the attached exhibits as evidence supporting a finding of loss causation. (Id. at 4-5.) Notably, however, in his brief in opposition Plaintiff did not: (1) specifically identify Dr. Jarrell's report beyond noting the existence of Exhibits C through G; (2) dispute Defendants' contention that no expert reports were submitted during discovery; or (3) make any arguments relying on Dr. Jarrell's expert report. In their reply, Defendants once again reiterated their position that Plaintiff had "failed to proffer any evidence to satisfy the 'loss causation' element of his claims for securities fraud, common law fraud[,] and misrepresentation." (Doc. No. 160 at 2-4.)

In considering Defendants' motion for summary judgment, the Court reviewed the voluminous exhibits attached to Plaintiff's brief in opposition to Defendants' motion for summary judgment. After reviewing the standard for establishing loss causation at the summary judgment stage, the Court concluded that it would consider the exhibits attached to Plaintiff's brief because Defendants did not object to them. (Doc. No. 168 at 13-14.) The Court then acknowledged that the expert report of Dr. Jarrell was material to the issue of loss causation and was ...

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