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Gerald Kohn, et al v. School District of the City of Harrisburg

October 31, 2012

GERALD KOHN, ET AL., PLAINTIFFS
v.
SCHOOL DISTRICT OF THE CITY OF HARRISBURG, ET AL., DEFENDANTS
v.
LINDA THOMPSON, ET AL., THIRD-PARTY DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

By memorandum and order, dated August 16, 2012, we denied the motion for judgment on the pleadings filed by third-party defendants, James E. Ellison, Esq., and Rhoads & Sinon, the law firm where he practices. Kohn v. Sch. Dist. of the City of Harrisburg, 2012 WL 3560822 (M.D. Pa.). The motion sought dismissal of the third-party complaint filed against them by the defendant, Harrisburg School District. We are considering Ellison's and Rhoads & Sinon's motion for reconsideration of that order. The issue presented is whether in a 42 U.S.C. § 1983 action defendants can make a claim for contribution. In our August 16 memorandum, we decided that defendants could. That memorandum provides sufficient background, so we deal here solely with the third-party defendants' arguments on reconsideration.

II. Standard of Review

The August 16 order was interlocutory because, having denied the third- party defendants' motion for judgment on the pleadings, it contemplated further proceedings in this court. See Aluminum Co. of America v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir. 1997); In re Anthanassious, 418 F. App'x 91, 95 (3d Cir. 2011) (nonprecedential) (bankruptcy court order granting an extension of time to file objections was interlocutory because the court still had to grant or deny the objections); M.K. v. Tenet, 196 F. Supp. 2d 8, 12 (D. D.C. 2001).

Since it was an interlocutory order, the court may revise it "when consonant with justice to do so." United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973); In re Anthanassious, supra, 418 F. App'x at 95 (quoting Jerry). More specifically, a trial court may revise an interlocutory order if that order "might lead to an unjust result." Anthanassious, supra, 418 F. App'x at 95 (quoted case omitted).

Thus the order is not subject to the stricter standard employed for a challenge under F. R. Civ. P. 59(e) to a final order, In re Anthanassious, 418 F. App'x 91, 96 n.5 (3d Cir. 2011)(nonprecedential), as the parties think.*fn1 Rule 59(e) covers only final judgments or orders. As Rule 59(e) states: "A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment," with "Judgment" being defined as "includ[ing] a decree and any order from which an appeal lies." Fed. R. Civ. P. 54(a). An appeal did not lie from the August 16 order because it adjudicated fewer than all the claims by all the parties. As F. R. Civ. P. 54(b) states:

Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief - whether as a claim, counterclaim, cross-claim, or third-party claim - or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b)(emphasis added). With this understanding of our standard of review, we examine the third-party defendants' motion. That motion is cognizable as a motion for reconsideration under Local Rule 7.10.

III. Discussion

In our August 16 memorandum, we decided that the defendant School District could pursue its contribution claim by reasoning as follows. Section 1983 creates no statutory right to contribution, either express or implied, Kohn, supra, 2012 WL 3560822, at *2 n.5, and there is no federal common-law right to contribution. Id. at *5. However, 42 U.S.C. § 1988(a) authorizes us to borrow Pennsylvania state law on contribution found in The Uniform Contribution Among Tort-feasors Act, 42 Pa. Con. Stat. §§ 8321--8327 (West 2007). In conformity with section 1988's requirement that any borrowed state law not be inconsistent with federal law, we decided that Pennsylvania law was not inconsistent with federal law, more specifically, that state law did not conflict with section 1983's goal of deterring unconstitutional conduct. Id. at 6. We also decided that allowing contribution served the other goal of section 1983, compensation of the victim. Id.

The third-party defendants say that our reliance on section 1988(a) was mistaken. They take the position that section 1988(a) may only be invoked "'for the protection' of the victims of civil-rights violations." (Doc. 146, Supp'n Br. at p. 4). Thus it could not be used to assist a civil-rights defendant in making a claim for contribution. In support of this position, the third-party defendants make three arguments.

First, they quote the statutory language itself, in pertinent part, with ...


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