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Cheryl A. Harris, Co-Administratrix of the Estate of Ryan D. Maseth, Deceased, and Douglas Maseth v. Kellogg

September 23, 2011

CHERYL A. HARRIS, CO-ADMINISTRATRIX OF THE ESTATE OF RYAN D. MASETH, DECEASED, AND DOUGLAS MASETH, CO-ADMINISTRATOR OF THE ESTATE OF RYAN D. MASETH, DECEASED,
PLAINTIFFS,
v.
KELLOGG, BROWN & ROOT SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court are Defendant Kellogg, Brown & Root Services, Inc.'s ("KBR") motion for reconsideration of the Court's June 17, 2011 Memorandum Opinion and Order denying its motion for the application of Iraqi law to this case (Docket No. 241) and Plaintiffs Cheryl A. Harris and Douglas Maseth's ("Plaintiffs") response thereto (Docket No. 244). KBR asserts that the Court committed numerous errors in resolving its motion for the application of Iraqi law, while Plaintiffs find no errors in the Court's discussion. (Docket Nos. 242, 244). Upon consideration of the parties' submissions and the relevant standard governing motions for reconsideration, and for the following reasons, KBR's motion [241] is denied.

II. BACKGROUND*fn1

This action arises out of the tragic death of Staff Sergeant Ryan D. Maseth, who was electrocuted while showering at a military base in Iraq. Harris, 2011 WL 2462486, at *1. His parents, who are administering his estate, brought this action against KBR, the private defense contractor that contracted with the United States Army to provide maintenance services at the base, alleging, among other things, that KBR's negligence in its performance or non-performance of certain maintenance services was the proximate cause of Staff Sergeant Maseth's death. Id. at *1-2.

Pertinent here, KBR filed a motion requesting that Iraqi law be applied to this case, citing three separate provisions of the Iraqi Civil Code. (Docket No. 215). After considering the parties' extensive briefing, evidentiary submissions and hearing oral argument from counsel at a motion hearing on April 5, 2011, the Court denied KBR's motion for the application of Iraqi law on June 17, 2011. Harris v. Kellogg, Brown and Root Services, Inc., --- F.Supp.2d ----, 2011 WL 2462486 (W.D.Pa. Jun. 17, 2011). In its decision, the Court denied KBR's motion on two, alternative bases, holding that: (1) KBR failed to meet its burden under Rule 44.1 to present evidence of the potentially applicable Iraqi law and to persuade the Court that such law should apply; and (2) after applying Pennsylvania choice of law rules, and weighing the interests of the potentially interested jurisdictions, Iraq, Pennsylvania, Texas and Tennessee, the proffered Iraqi laws would not be applied. Id. The Court also expressly reserved ruling as to which of the interested states' laws will apply to Plaintiffs' claims and KBR's defenses. Id. at *21.

Dissatisfied with the Court's decision, KBR filed the instant motion for reconsideration on July 1, 2011. (Docket No. 241). Along with its motion, KBR submitted a brief in support, a third affidavit from Professor Hamoudi and an amicus brief submitted by the Solicitor General's Office to the Supreme Court in Saleh et al. v. Titan Corp. et al. (Docket No. 242). KBR alleges that the Court committed numerous errors in its decision and also requested that the Court schedule oral argument on its motion. (Id.). Plaintiffs filed their brief in opposition to KBR's motion for reconsideration on July 11, 2011, opposing both reconsideration and the request for an additional hearing. (Docket No. 244). The Court denied KBR's request for a hearing on August 24, 2011 (Docket No. 245) and notified the parties that the motion would be submitted on the briefs. As all briefing has concluded, the motion is now ripe for disposition.

III. LEGAL STANDARD

It is well settled that reconsideration of a prior order is only warranted if the moving party demonstrates: (1) an intervening change in the controlling law; (2) the availability of new evidence which was not available when the court issued its order; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice. Max's Seafood Cafe by Lou-Ann, Inc. 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)); see also Bootay v. KBR, Inc., No. 10-4028, 2011 WL 2713804, at *5 (3d Cir. 2011) (noting same legal standard on a motion for reconsideration).

A party's mere disagreement with the Court does not translate into the type of clear error of law which justifies reconsideration of a ruling. Miller v. Lamas, 2011 WL 398408, at *1, Civ. Act. No. 10-51 (M.D.Pa. Feb. 2, 2011) (citing Dodge v. Susquehanna Univ ., 796 F.Supp. 829, 830 (M.D.Pa.1992)). Furthermore, "because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Id. (quoting Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D.Pa. Mar. 27, 1995)). It is evident that a motion for reconsideration is not a tool to re-litigate and reargue issues which have already been considered and disposed of by the Court. Id. (citing Dodge, 796 F.Supp. at 830). Rather, such a motion is appropriate only where the court misunderstood a party or where there has been a significant change in law or facts since the Court originally ruled on that issue. Id. (citing Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. Sept. 1, 1983)).

IV. DISCUSSION

In light of the aforementioned legal standard, the Court will first address the alleged changes in law and/or new evidence presented by KBR and will then discuss KBR's claims that the Court committed legal and factual errors.

A.Changes in Law / New Evidence

First, the Court finds that the two documents KBR has attached to its motion for reconsideration, i.e., the Solicitor General's Brief for the United States as Amicus Curiae filed with the Supreme Court in Saleh et al. v. Titan Corp. et al., and a third affidavit from Professor Hamoudi, do not constitute new evidence or represent changes in the controlling law which would warrant reconsideration. (Docket Nos. 242-1, 242-2).

To this end, the Solicitor General's brief in the Saleh case was filed in May of 2011. (Docket No. 242-2). Thus, it was available prior to the Court's disposition of the motion for application of Iraqi law on June 17, 2011. Harris, 2011 WL 2462486. Although the brief is filed by the Solicitor General on behalf of the United States, it is not binding authority. It simply represents the position of that Office on behalf of the United States in the Saleh litigation. (See Docket No. 242-1). Specifically, it addresses the issue of whether the Supreme Court should grant a writ of certiorari and review the Saleh decision. (Id.). Therefore, the Solicitor General's brief constitutes neither a change in the law nor new evidence that was unavailable prior to the Court's disposition of the present motion.*fn2 See Max's Seafood Cafe by Lou-Ann, Inc., 176 F.3d at 677. Accordingly, KBR's motion for reconsideration is denied to the extent that it is based on the Solicitor General's brief.

A third affidavit from Professor Hamoudi is also now before the Court. (Docket No. 242-1). It contains further analysis of CPA Order 17, particularly section 18. (Id.). As the Court noted in the Opinion denying KBR's motion for the application of Iraqi law, Hamoudi's analysis of this section was absent from his first and second affidavits. Harris, 2011 WL 2462486, at *5, 7-8. But, from the Court's view, Hamoudi's analysis could have and should have been included given that the interpretation of section 18 was contested by the parties. Id. at *7-8. Hamoudi actually admits that he previously offered expert opinions in federal litigation about CPA Order 17 prior to his engagement in this case. (Docket No. 242-1). But, Hamoudi explains that he only offered his opinions regarding CPA Order 17 in his second affidavit in this case because he thought that it did not apply in any fashion. (Id.). Therefore, the evidence presented in the third affidavit is not "newly discovered" as it was available prior to the Court's disposition of the subject motion. See Max's Seafood Cafe, 176 F.3d at 677. For reasons left unstated, KBR and Hamoudi apparently decided not to include this information in their earlier submissions. As the evidence is not newly discovered, KBR's reliance on same does not support its motion for reconsideration.

The Court further notes that both KBR and Hamoudi appear to misunderstand why the Court questioned his "credibility" in the Opinion. (Docket Nos. 242, 242-1). It had nothing to do with his qualifications, as they suggest. (Id.). His qualifications were accepted by Plaintiffs and the Court. See Harris, 2011 WL 2462486 at n.1 ("Plaintiffs have not contested that Professor Hamoudi is properly qualified as an expert in Iraqi law."). The Court simply questioned why Hamoudi ignored CPA Order 17 in his initial affidavit and then only addressed two of the three sections which were raised by Plaintiffs in his second affidavit.*fn3 Harris, 2011 WL 2462486, at *7-8. Perhaps Hamoudi's opinions regarding CPA Order 17 and section 18 were left out as a part of KBR's litigation strategy? To this end, KBR argued in its first pleading in this case, its Notice of Removal filed on April 22, 2008, that CPA Order 17 was applicable and controlling in this case. (See Docket No. 1, Notice of Removal, ¶¶ 30, 38). *fn4 However, despite these claims made at the outset of the litigation, KBR's retained expert, Hamoudi, failed to address CPA Order 17, until he was prompted to do so by the Plaintiffs. Indeed, Hamoudi was plainly aware of CPA Order 17 given his significant experience with Iraqi law and his work as an expert in other federal litigation specifically addressing CPA Order 17. He even admitted in his second affidavit that CPA Orders were a valid part of Iraqi law. (Docket No. 220--1 at ¶ 2). As a consequence, the only reasonable conclusion that can be drawn from these facts is that KBR's legal team and its expert witness made deliberate choices to abandon KBR's earlier arguments which relied on CPA Order 17 in favor of what they perceived to be a stronger argument under the Iraqi Civil Code. From the Court's view, the expert's opinions are therefore tainted by KBR's evolving litigation strategy*fn5 enough to question his "credibility" for not apprising the Court of the full body of Iraqi law which was potentially applicable in this case.*fn6

For these reasons, KBR's motion for reconsideration is denied to the extent that it has not sufficiently demonstrated any change in the applicable law or presented any new evidence which support reconsideration of the Court's Memorandum Opinion. See Max's Seafood Cafe, 176 F.3d at 677.

B.Errors of Law / Fact

KBR next claims that the Court made a number of erroneous legal conclusions and factual findings during its analysis of whether Iraqi law should apply to this case. (Docket No. 242). Specifically, KBR challenges the Court's analysis of CPA Order 17, its application of Pennsylvania choice of law rules and essentially all other aspects of the Court's decision. Plaintiffs find no error with the Court's analysis. (Docket No. 244). From the Court's view, KBR "protests too much" and, for the following reasons, has not demonstrated that reconsideration of the Court's decision is warranted.

1. CPA Order 17

i. Improper Interpretation of the Court's Opinion

KBR asserts a number of arguments denigrating the Court's analysis of CPA Order 17. (Docket No. 242). Before addressing KBR's specific positions, the Court notes that KBR's arguments suggest that its counsel simply misreads the Court's June 17, 2011 Memorandum Opinion. The only relief that KBR requested in its motion was that three specific Iraqi legal principles should be applied in this case, i.e., those set forth in Articles 205, 207 and 211 of the Iraqi Civil Code. (Docket No. 215). As a result, the Court limited its holding to whether the three provisions of the Iraqi Civil Code cited by KBR applied to this litigation. See Harris, 2011 WL 2462486, at *1 ("In this Memorandum Opinion, the Court addresses the narrow question of whether Iraqi law should be applied to certain of Plaintiffs Cheryl Harris and Douglas Maseth's ("Plaintiffs") claims in this case, as requested by Defendant Kellogg, Brown & Root Services, Inc. ("KBR")); Id. at *21 ("Based on the foregoing, KBR's motion to apply Iraqi is denied. The Court's holding is limited to this issue"). The Court concluded that these three provisions did not apply and then "expressly reserve[d] ruling as to which of the interested states' laws [will] apply to Plaintiffs' claims and KBR's defenses in this action going forward." Id. at 21.

KBR claims that the Court's reasoning offered in support of its holding is "internally inconsistent"*fn7 but fails to recognize that the Memorandum Opinion actually sets forth alternative rulings: (1) that KBR failed to meet its burden under Rule 44.1 to present the Court with applicable Iraqi law because KBR only presented the Court with Iraqi Civil Code provisions and failed to thoroughly address the relevant sections of CPA Order 17; and (2) that under a Pennsylvania choice of law analysis, the provisions of the Iraqi Civil Code proffered by KBR would not apply when compared with parallel provisions under the laws of Texas, Pennsylvania, and Tennessee. (Docket No. 235). The Rule 44.1 issue was not raised by either party and was considered sua sponte. Although the Court found against KBR on the Rule 44.1 issue, the Court assumed that KBR had met its burden under Rule 44.1 and fully analyzed the choice of law issues under Pennsylvania law in the second portion of the Memorandum Opinion. See Harris, 2011 WL 2462486, at *9. As a consequence, KBR's protestations are without merit.

ii. CPA Order 17 is "Merely a Part of Iraqi Law" and cannot supplant Pennsylvania Choice of Law Rules

KBR further claims that the Court's analysis of CPA Order 17 ignored Pennsylvania choice of law rules. (Docket No. 242 at 2). However, KBR presented this identical argument in its Reply Brief, submitted before ...


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