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Michael Dermo v. Jerry Isaacson

September 19, 2012


The opinion of the court was delivered by: Buckwalter, S. J.


Currently pending before the Court is the Motion for Reconsideration*fn1 of Plaintiff Michael Dermo ("Plaintiff" or "Dermo"). For the following reasons, the Motion is denied.


The factual background of this case is one familiar to all relevant parties and the Court, and is detailed in the Court's prior Memorandum Opinion published on August 21, 2012 ("the Memorandum Opinion")*fn2 denying Plaintiff's request for partial summary judgment as to Defendant Spring Creek Holdings LLC ("Spring Creek" or "Defendant"). The Court will therefore only discuss the facts and procedural history relevant to the instant Motion.

On July 10, 2012, Plaintiff filed a Motion for Partial Summary Judgment Against Defendant, Spring Creek Holdings, LLC (Docket No. 24).*fn3 In this Motion, Plaintiff moved for summary judgment against Spring Creek on the grounds that it breached its Employment Agreement with him. More specifically, Dermo was guaranteed two years of initial employment under the Agreement, but was terminated after only eight months with Spring Creek. Dermo claims that he was terminated without cause, and that he was never provided with appropriate written notice as was required by the contract. He therefore seeks his outstanding accrued salary, severance pay, bonus, and reimbursement for the expenses he incurred while at the company. On July 30, 2012, Defendant filed a Response in Opposition (Docket No. 32), in which it alleged that it did, in fact, have cause to terminate Dermo because he failed to meet his expected job potential. Defendant further asserted that Dermo received appropriate written affirmation of his termination in the form of e-mails written by Isaacson.

On August 21, 2012, the Court entered a Memorandum Opinion (Docket No. 46) denying Plaintiff's request for summary judgment. Specifically, the Court found that genuine issues of material fact remain in the record as to whether or not Dermo was terminated with or without cause. The Court also held that it could not ascertain from the factual record before it whether the form of written notice given to Dermo regarding his termination was sufficient under the Employment Agreement, and that this issue was best left to the discretion of a reasonable jury at trial.

Less than one day after entry of the Memorandum Opinion, Plaintiff immediately filed the present Motion for Reconsideration (Docket No. 47). The basis of Plaintiff's Motion is that the Court "erred as a matter of law by overlooking the written notice requirement in subparagraph 7(f)(i) of the Employment Agreement." (Pl.'s Mot. Reconsideration 1 (original emphasis & alteration of text omitted).) Defendant filed its Response in Opposition on September 5, 2012. This matter is now ripe for judicial review.


A motion for reconsideration filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure is "'a device to relitigate the original issue decided by the district court, and [it is] used to allege legal error.'" Simms v. Phelps, No. Civ.A.09-87, 2012 WL 831841, at *1 (D. Del. Mar. 9, 2012) (quoting United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003)). Such motions may be granted if the moving party shows:

(1) an intervening change in controlling law; (2) the availability of new evidence that was not available when the court initially issued its order; 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). Motions for reconsideration are granted sparingly. Cont'l Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995). The grant of such a motion is improper where it simply asks the court to "rethink what [it] had already thought through-rightly or wrongly." Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993) (internal quotations omitted). Moreover, motions for reconsideration may not be used "as a means to argue new facts or issues that inexcusably were not presented to the court in the matter previously decided." Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990). "Nor may a motion for reconsideration be used to revisit or raise new issues with the benefit of 'the hindsight provided by the court's analysis'" or to advance arguments that would not change the result of the court's initial ruling. Marshak v. Treadwell, No. Civ.A.95-3794, 2008 WL 413312, at *7 (D.N.J. Feb. 13, 2008), aff'd in part & remanded by 595 F.3d 478 (3d Cir. 2009) (quoting United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994)), .


In his Motion for Reconsideration, Plaintiff asserts that the Court overlooked the written notice requirement found in ¶ 7(f)(i) of the Employment Agreement, and that this apparent omission represents a clear error of law by the Court that must be corrected. On its part, Defendant asserts that because Plaintiff received actual verbal notice of his failure to perform, and because Plaintiff failed to prove damages resulting from not receiving the requisite written notice of his failure, he has not established a cause of action for breach of contract. Both parties' arguments, however, appear to misunderstand this Court's interpretation of the Employment Agreement as set forth in the August 21, 2012 Memorandum Opinion.

Section 7 of the Employment Agreement, entitled "Termination of Employment; Effect of Termination," contains two provisions regarding written notice. The first provision, ¶ 7(a), states the following: "[Dermo's] employment hereunder may be terminated at any time upon written notice by the Company or Executive, with or without cause." (Emp't Agreement ¶ 7(a) (emphasis added).) "Cause" is defined in the Employment Agreement, in relevant part, as a "failure by [Dermo] to perform in any manner under this Agreement after being given notice of such failure by the Company, along with an explanation of such failure of performance[.]" (Id. ¶ 7(f)(i).) The second provision of the Employment Agreement regarding written notice, ¶ 7(f)(i), provides that, in the event that Spring Creek sought to ...

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