The opinion of the court was delivered by: Terrence F. McVerry United States District Judge
Pending before the Court is the MOTION FOR RECONSIDERATION FILED ON BEHALF OF THE PLAINTIFF (Document No. 32). Defendants filed a response in opposition to the motion and it is ripe for disposition.
This case involved constitutional claims brought by a municipal employee. Gawlas was (and still is) employed as a police officer by the Borough of Jefferson Hills, Pennsylvania (the "Borough"). He had been the K-9 officer. On December 13, 2010 the Borough Council unanimously adopted a 2011 budget which eliminated funding of the K-9 program in the borough. Gawlas remains employed as a police officer in the Borough. Plaintiff alleges that Defendants made this decision in retaliation for his (unspecified) "union activity and/or political affiliations" and failed to give him notice and an opportunity to be heard prior to the budget vote. Gawlas further alleges that he was subjected to a financial audit (the "CSI investigation") after the K-9 program was eliminated and that the resulting report, which portrayed him in an unflattering light, was made public.
On September 27, 2011, the Court granted Defendants' motion to dismiss the original Complaint but permitted Gawlas an opportunity to file an amended complaint. However, the Court cautioned: "If Plaintiff chooses to file an amended complaint, it will be important to address all of these alleged shortcomings to assure that the amended complaint contains sufficient factual allegations to render the claim(s) "plausible" in compliance with the pleading standard set forth and explained in Twombly, Fowler and Phillips, as a further opportunity to amend is unlikely to be granted."
Gawlas filed an Amended Complaint which asserted claims for (1) First Amendment Retaliation; (2) violation of his right to Procedural Due Process; and (3) "Due Process -- Liberty Interest." Defendants renewed their motion to dismiss. On January 20, 2012, in a lengthy Memorandum Opinion and Order (the "January 20th Opinion") the Court granted Defendants' motion and dismissed the Amended Complaint with prejudice.
Rather than pursuing a direct appeal, Gawlas now seeks reconsideration of the January 20th Opinion. It is well-established that a party must overcome a high hurdle to succeed in such a motion. The purpose of a motion for reconsideration is to "correct manifest errors of law or fact or to present newly discovered evidence." Max's Seafood Cafe ex-rel Lou--Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985)). A court should exercise its discretion to alter or amend its judgment only if the movant demonstrates: (1) a change in the controlling law; (2) a clear error of law or fact or to prevent manifest injustice; or (3) availability of new evidence not available when the judgment was granted. See id. Motions for reconsideration are not intended to provide a "second bite at the apple" (or, in this case, a "third bite") or to provide a mechanism for losing parties to ask the Court to rethink its decision.
Gawlas has not met this standard. He points to no change in controlling law.*fn1 Primarily, Plaintiff's counsel merely rehashes arguments this Court has already rejected. As to the First Amendment Retaliation claim, it is not sufficient to identify alleged allies/opponents or to state that Gawlas held a position as union steward. The Complaint must plead the actual "protected activity" in which Gawlas engaged. It fails to do so. In addition, the Amended Complaint failed to plead the required causal link between any alleged activity and Defendants' actions.*fn2 As to the Procedural Due Process claim, Gawlas reiterates his legal argument based on Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996), which the Court discussed in its January 20th Opinion. No further discussion is warranted.*fn3 As to the Liberty Interest claim, Gawlas re-argues that loss of overtime pay, or any other "adverse employment action" as defined in Title VII case law, may satisfy the "stigma plus" test. The Court previously explained why this position is without merit.
In accordance with the foregoing, the MOTION FOR RECONSIDERATION FILED ON BEHALF OF THE PLAINTIFF (Document No. 32) is DENIED.