United States District Court, W.D. Pennsylvania
TRAVIS MICJAN and STEPHANIE MICJAN, Co-administrators of the Estate of DYLAN MICJAN, a deceased minor and in their own right, Plaintiffs,
WAL-MART STORES, INC., GARAN, INC., and GARAN SERVICES CORP., Defendants,
TRIBORO QUILT MANUFACTURING CORP., Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
C. MITCHELL United States Magistrate Judge.
before the Court is a motion for reconsideration (ECF No.
147) of this Court's Memorandum Opinion and Order (ECF
No. 146) which granted in part and denied in part the motion
for summary judgment pursuant to Federal Rule of Civil
Procedure 56 (ECF No. 123), filed by Defendant Wal-Mart
Stores, Inc. (Wal-Mart) and later joined in by Defendants
Garan, Inc., and its subsidiary, Garan Services Corp.
(together, Garan) (ECF No. 128) and joined in by Third-Party
Defendant Triboro Quilt Manufacturing Corp. (Triboro) (ECF
No. 127). The motion was filed by Wal-Mart and then joined in
by Triboro (ECF No. 148) and Garan (ECF No. 149). It has been
fully briefed and oral argument has been held on it. For the
reasons that follow, the motion will be denied.
Travis Micjan and Stefanie Micjan,  co-administrators of the
estate of Dylan Micjan, a deceased minor and in their own
right, bring this action alleging various Virginia state
common law and statutory tort claims against Wal-Mart and
Garan, arising out of the tragic death of their 3-month old
son, Dylan Micjan, on March 25, 2012. Dylan died of probable
asphyxia, which Plaintiffs contend occurred when his face
became wedged in a defective and dangerous crib bumper pad
that was manufactured by Triboro, licensed by Garan and sold
by Wal-Mart. Defendants impleaded Triboro as a Third-Party
Defendant to this action, although Wal-Mart subsequently
dismissed its Third-Party Complaint.
motion for summary judgment, Wal-Mart contended that:
Plaintiffs could not maintain their remaining survival
actions (for negligence, breach of express warranties, breach
of implied warranties, fraud by concealment, negligent
misrepresentation, and violations of the Virginia Consumer
Protection Act) because Virginia law permits them to pursue
only wrongful death claims; that they could not recover on
the wrongful death claim because of their own contributory
negligence; that they could not maintain any claims alleging
fraud because Wal-Mart made no representations and they did
not rely on any; that Wal-Mart made no express warranties;
that Plaintiffs did not rely on any implied warranties; that
the estimates of Dylan's earning potential were based on
pure speculation; and that Plaintiffs pointed to no evidence
to support a request for punitive damages. Plaintiffs
responded that they had presented sufficient evidence to
recover on their claims, that the estimates of Dylan's
earning potential were calculated with reasonable certainty
and that Wal-Mart's actions were sufficient to support a
request for punitive damages.
Memorandum Opinion and Order entered on December 13, 2016,
the Court granted Wal-Mart's motion in part and denied it
in part. Specifically, the motion was granted with respect to
Counts V (breach of express warranties), VII (fraud by
concealment), VIII (negligent misrepresentation) and XIX
(Virginia Consumer Protection Act), granted in part and
denied in part with respect to Count VI (breach of implied
warranty of fitness for a particular use dismissed, breach of
implied warranty of merchantability retained) and denied with
respect to Counts IV (negligence), XX (wrongful death),
Plaintiffs' request for damages based on their deceased
child's earning potential and Plaintiffs' request for
punitive damages. As applied to Garan, the motion for summary
judgment was granted with respect to Count XVII (negligent
misrepresentation), granted in part and denied in part with
respect to Count XV (breach of implied warranty of fitness
for a particular use dismissed, breach of implied warranty of
merchantability retained) and denied with respect to Counts
XIII (negligence), XXI (wrongful death), Plaintiffs'
request for damages based on their deceased child's
earning potential and Plaintiffs' request for punitive
damages. Triboro's motion was denied, because it could
only be dismissed if all claims against Garan were dismissed
and that was not the situation.
result, the remaining claims are: Count IV (negligence by
Wal-Mart), Count VI (breach of the implied warranty of
merchantability by Wal-Mart), Count XIII (negligence by
Garan), Count XV (breach of the implied warranty of
merchantability by Garan), Count XX (wrongful death claim
against Wal-Mart) and Count XXI (wrongful death claim against
December 22, 2016, Wal-Mart filed the instant motion for
reconsideration (ECF No. 147) and both Garan (ECF No. 149)
and Triboro (ECF No. 148) have joined in it. On January 17,
2017, Plaintiffs filed a brief in opposition (ECF No. 153).
On January 31, 2017, Wal-Mart filed a reply brief (ECF No.
158), which was joined in by Garan (ECF No. 156) and Triboro
(ECF No. 157). On March 2, 2017, oral argument was held on
Court of Appeals has stated that:
“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 Café ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “It
is improper on a motion for reconsideration to ask 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 citation and quotes omitted). In this case,
Wal-Mart cites no intervening change in the law or
availability of new evidence, so its motion raises only a
claim that the Court committed a “clear error of law or
cites Qazizadeh v. Pinnacle Health Systems, for the
standard that a court may permit reconsideration of orders
granting partial summary judgment whenever “consonant
with justice to do so.” 2016 WL 5787352, at *2 (M.D.
Pa. Oct. 4, 2016). However, in that case, the court observed
that there was a split of opinion among district courts
within the Third Circuit as to the appropriate standard of
review, and the court sided with those courts that had
accepted the broader “consonant with justice”
standard. In this Court, most cases have cited the three
factors from Max's Seafood Café and held
that “a motion for reconsideration that
“essentially restates, with added vigor, the arguments
made previously” does not satisfy this
“substantial standard.” Peerless Ins. Co. v.
Pennsylvania Cyber Charter Sch., 19 F.Supp.3d 635, 651
(W.D. Pa. 2014) (Hornak, J.) (citation omitted).
other cases have indicated that, when the order at issue is
interlocutory (such as an order granting in part and denying
in part a motion for summary judgment), the greater
discretion of the applying “consonant with
justice” standard applies. See Sampath v.
Concurrent Tech. Corp., 2006 WL 2642417, at *2
(W.D. Pa. Sept. 13, 2006) (Gibson, J.); Square D Co. v.
Scott Elec. Co., 2008 WL 4877990, at *1 (W.D. Pa. Nov.
12, 2008) (Fischer, J.) (same).
even those courts that have applied the more lenient standard
have held that “[w]hile a district court has the
inherent power to reconsider an interlocutory order,
‘[c]ourts tend to grant motions for reconsideration
sparingly and only upon the grounds traditionally available
under Fed.R.Civ.P. 59(e).'” Morgan v. Hawthorne
Homes, Inc., 2010 WL 1286949, at *2 (W.D. Pa. Mar. 31,
2010) (Cohill, J.) (quoting A & H Sportswear Co. v.
Victoria's Secret Stores, Inc., 2001 WL 881718, at
*1 (E.D. Pa. May 1, 2001)). See also Sampath, 2006
WL 2642417, at *2 (rejecting motion that merely restated some
argument that had previously been rejected). ...