The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan
MEMORANDUM ORDER ON PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO RULE 59(e)
Currently pending before the Court is Plaintiff's Motion to Alter or Amend Judgment (ECF No. 76) pursuant to Federal Rule of Civil Procedure 59(e) (Motion for Reconsideration) of the Court's Order of March 31, 2012 granting summary judgment in favor of Defendants, and the Judgment entered on April 13, 2012 in favor of Defendants and against Plaintiff. In particular, Plaintiff seeks reconsideration of the Court's rejection of all of his claims other than the breach of fiduciary duty claim.
A motion to alter or amend judgment under Rule 59(e) includes a motion for reconsideration where, as here, the plaintiff is asking the Court to reconsider and vacate the aforesaid Order and Judgment. 11 C. Wright, A. Miller, & M. Kane, FED. PRACTICE & PROCEDURE: CIVIL 2D § 2810.1, p. 122 & n. 8 (2d ed. 1995 & 2011 Supp.) (citing Villanueva- Mendez v. Nieves Vazquez, 360 F.Supp.2d 320 (D. P.R. 2005); Waye v. First Citizen's Nat'l Bank, 846 F.Supp. 310 (M.D.Pa. 1994)) (other citations omitted). The court of appeals for this circuit has delineated the following standard to be applied in deciding motions for reconsideration:
"The purpose of a motion for reconsideration," we have held, "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 judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995).
Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); see also Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 251 (3d Cir. 2010) (citing Max's Seafood Cafe, supra).
A moving party relying on the third ground should carefully consider whether the perceived clear error of law is in reality just a point of disagreement between the court and the party, as the latter is not an appropriate basis for reconsideration. Waye, 846 F.Supp. at 314 n. 3 (citation omitted). In addition, a Rule 59(e) motion may not be employed to reargue matters already decided by the court. Id. at 314 (citation omitted); Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n. 5 (2008) (citing FED. PRACTICE & PROCEDURE § 2810.1, pp. 127-28). Nor may a Rule 59(e) motion be used to raise arguments or present evidence that could have been raised prior to entry of judgment. FED. PRACTICE & PROCEDURE §2810.1 at pp. 127-28 & n. 21 & 22. Granting a motion for reconsideration is an extraordinary remedy, and therefore, is done sparingly. D'Angio v. Borough of Nescopeck, 56 F.Supp. 2d 502, 504 (M.D.Pa. 1999) (citing NL Indus. v. Commercial Union Ins., 935 F.Supp. 513 (D.N.J. 1996) (other citation omitted)); see also FED. PRACTICE & PROCEDURE §2810.1 at p. 124 & n. 13.
In support of his motion for reconsideration, Manning hangs his hat on the third ground, arguing that reconsideration is appropriate here to correct a clear error of law and fact and/or to prevent manifest injustice. However, after reviewing Manning's supporting brief, the Court finds that the alleged clear errors of law and fact are nothing more than a disagreement with the Court's rulings.
With regard to his defamation claims (Counts IV and V), Plaintiff takes issue with the Court's conclusion that "no reasonable jury could find, based on the record evidence, that Defendants abused a conditional privilege. Plaintiff raises three arguments in support of reconsideration of this ruling. First, Plaintiff contends the Court applied a stricter legal standard by not considering whether the publication of the alleged defamatory statement was done negligently. Contrary to Plaintiff's argument, this Court did apply the correct legal standard for abuse of privilege-the Court relied on the standard enunciated by the Pennsylvania Superior Court in Moore v. Cobb-Nettleton, 889 A.2d 1262, 1269 (Pa. Super. Ct. 2005):
Abuse of a conditional privilege is indicated when the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given, or to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, or included defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.
See Opinion dated 3/31/12 at 37 (ECF No. 73). In applying this standard to the summary judgment record in the case at bar, the Court focused on whether Plaintiff had proffered evidence of malice and/or recklessness because that was the focus of Defendants' argument and Plaintiff's response in opposition. Plaintiff did not argue in either of his opposition briefs that publication of the "don't tell Tom" statement was actuated by negligence on Defendants' part.
Indeed, in his memorandum of law in opposition to summary judgment (ECF No. 57), Plaintiff sets forth his argument regarding "privilege" on pages 16-20, and nowhere in that section does he set forth the standard for abuse of privilege,*fn1 let alone argue that he has shown that the publication of the "don't tell Tom" statement was actuated by Defendants' negligence. In his sur-reply brief, Plaintiff again relies on his discussion of privilege at pages 16-20 of his brief in opposition (ECF No. 57), and then goes on to argue that "[i]f the jury believes Angelo that she made no such statement [don't tell Tom] to Holland, then the falsity of Holland's statement is manifest and a jury could find that Holland intentionally or recklessly reported a false account of her conversation with Angelo, with the intent to harm plaintiff." Pl.'s Sur-Reply at 3-4 (ECF No. 68) (emphasis added). Clearly, Plaintiff's use of the words "intentionally," "recklessly" and "with the intent to harm" do not imply a negligence standard. It is not the Court's role to analyze the evidence under standards neither argued nor briefed by the parties. Moreover, this argument was available to Plaintiff at the time he responded to Defendants' summary judgment motion but he failed to raise it. Therefore, he cannot assert this argument for the first time in a motion for reconsideration. Federico v. Charterers Mut. Assur. Ass'n Ltd., 158 F.Supp. 2d 565, 578 (E.D.Pa. 2001) (citations omitted).
Next, Plaintiff attempts to get around his failure to establish that Defendants abused their conditional privilege in publishing the "don't tell Tom" statement by now arguing that a showing of negligence required to prove a defamation claim is also sufficient to overcome the conditional privilege. Plaintiff goes on to argue that the record contains abundant facts from which a finding of negligence can be made on the part of Holland and Flannery. See Pl.'s Mem. in Supp. of Reconsideration at 9-10 ("Pl.'s Reconsid. Mem."), ECF No. 77. Plaintiff's argument is flawed in several respects. Although he correctly states Pennsylvania law on defamation,*fn2 Plaintiff fails to acknowledge that neither he nor Defendants provided any argument to the Court on summary judgment as to whether he had established the prima facie elements of his defamation claims. Rather, the only question raised and briefed on the merits of the defamation claims was whether the "don't tell Tom" statement was capable of defamatory meaning. Thus, because there was no ...