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Black Bear Energy Services, Inc. v. Youngstown Pipe & Steel, LLC

United States District Court, W.D. Pennsylvania

July 13, 2017

BLACK BEAR ENERGY SERVICES, INC. Plaintiff,
v.
YOUNGSTOWN PIPE & STEEL, LLC d/b/a DNV ENERGY, LLC Defendant and Counterclaimant.

          MEMORANDUM OPINION

          JOY FLOWERS CONTI, CHIEF UNITED STATES DISTRICT JUDGE

         Pending before the court is a motion to reinstate complaint filed by plaintiff Black Bear Energy Services, Inc. (“plaintiff” or “Black Bear”), on April 20, 2017 (ECF No. 88). On May 19, 2017, defendant Youngstown Pipe & Steel, LLC (“defendant” or “YPS”) filed a response to plaintiff's motion (ECF No. 93). The court will deny plaintiff's motion to reinstate the complaint, because plaintiff does not cite to a specific rule to support its motion for reinstatement, and the reasoning plaintiff provides in support of its motion does not meet the standards for Federal Rule of Civil Procedure 60(b), 59(e), or 54(b) or for the use of this court's inherent power.

         I. Background

         Plaintiff, a Pennsylvania corporation, brought suit on January 13, 2015 against defendant, an Ohio limited liability company. (ECF No. 1.) Plaintiff's complaint alleges that it ordered certain skid pipings from defendant (ECF No. 1 ¶ 8), which did not conform to the specifications agreed upon by the parties. (ECF No. 1 ¶ 13.) Black Bear brought two counts in its complaint, one count seeking remedy for breach of warranty pursuant to the Uniform Commercial Code (“UCC”) and the second count for breach of contract. (ECF No. 1.)

         Due to an economic downturn in plaintiff's industry and financial loss, Black Bear was unable to pay its counsel to continue prosecuting its claims against YPS. (ECF No. 88 ¶ 2.) At a status conference on June 29, 2016, plaintiff's then-counsel represented to this court that plaintiff had ceased doing business, surrendered its assets to its lender, and hired counsel to discuss the possibility of filing for bankruptcy. (Minute Entry, 6/29/2016.) Plaintiff's then-counsel also stated that he would likely be filing a motion to withdraw shortly thereafter. Approximately three months later, on September 19, 2016, counsel submitted a motion to withdraw as attorney for Black Bear. (ECF No. 56.) On September 30, 2016, this court granted the motion to withdraw. (ECF No. 59.)

         Following the withdrawal of its counsel, this court ordered plaintiff to have new counsel enter an appearance or show cause on or before November 2, 2016, as to why its claims should not be dismissed for failure to prosecute.[1] (ECF No. 61.) Plaintiff failed to respond to this order. On November 22, 2016, defendant filed a motion to dismiss for lack of prosecution. (ECF No. 68.) The court granted defendant's motion and dismissed plaintiff's claims without prejudice on November 28, 2016. (ECF No. 71.) The denial was not on the merits of the claims plaintiff wants to reinstate, and plaintiff may file another suit to pursue those claims.

         On April 20, 2017, nearly five months after this court dismissed plaintiff's claims, plaintiff filed a motion to reinstate its complaint. (ECF No. 88.) Plaintiff claims that reinstatement will cause no delay in litigating the matter, because YPS already answered the complaint and recently joined additional defendants to the suit keeping “this matter open.” (ECF No. 88 ¶ 10.) Defendant argues that the motion should be denied because plaintiff failed to comply with the rules of this court and because plaintiff failed to meet the standards for a motion to reconsider. (ECF No. 94.) Having been fully briefed, this matter is now ripe for disposition.

         II. Discussion

         In its motion to reinstate the complaint, plaintiff cites no procedural rule under which this court should consider its motion. As a preliminary matter, the court must determine whether a procedural rule governs defendant's motion.[2] “[T]he function of the motion, and not the caption, dictates which Rule is applicable.” United States v. Fiorelli, 337 F.3d 282, 287-88 (3d Cir. 2003). Courts considering similar motions have applied Federal Rule of Civil Procedure 60(b), 59(e), or 54(b), or considered the use of the court's inherent power. While a motion for reconsideration may be analyzed under any of these rules, each “has a particular purpose.”[3] Id. at 288. The court will examine each of these rules, as well as the use of the court's inherent power, to determine which, if any, are applicable in this instance.

         A. Federal Rule of Civil Procedure 60(b)

         The court first considers whether plaintiff's motion to reinstate the complaint should be construed under Federal Rule of Civil Procedure 60(b). “Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances….” Atkinson v. Middlesex Cnty., 610 F. App'x 109, 112 (3d Cir. 2015) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528 (2005)).[4] Critically, Rule 60(b) “ ‘applies only to ‘final' judgments and orders.' ” Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118, 125 (3d Cir. 2004) (quoting Torres v. Chater, 125 F.3d 166, 168 (3d Cir. 1997)).

         Here, plaintiff's complaint was dismissed without prejudice on November 28, 2016. (ECF No. 71.) “Ordinarily, an order dismissing a complaint without prejudice is not a final order unless the applicable statute of limitations would not permit the re-filing of the claims.” Core Commc'ns, Inc. v. Verizon Pa., Inc., 493 F.3d 333, 337 (3d Cir. 2007). The Third Circuit Court of Appeals recently explained:

While “an order dismissing a complaint without prejudice is not a final order as long as the plaintiff may cure the deficiency and refile the complaint, ” . . . “[t]his principle . . . does not apply if the statute of limitations has run by the time the court orders dismissal without prejudice” . . . After the statute of limitations has run, an unconditional dismissal without prejudice is considered final.

Atkinson, 610 F. App'x at 111 (citations omitted).

         The operative court order, issued on November 28, 2016, dismissed plaintiff's complaint without prejudice. (ECF No. 71.) In order to determine whether that order constitutes a final order subject to Rule 60(b), the court must determine whether the statute of limitations on plaintiff's claims had run as of that date. See Atkinson, 610 F. App'x at 112 (“[W]e must determine if the statute of limitations on Atkinson's claims had expired as of May 31, 2011, the date of the Dismissal Order.”). As of the date of this opinion the statute of limitations has not run - i.e., December 2014 to June 2017 is less than four years.

         Here, the order dismissing plaintiff's complaint served to dismiss Black Bear's entire complaint against YPS. The complaint alleged a claim for breach of warranty pursuant to the Uniform Commercial Code (“UCC”), as well as a state law breach of contract claim. The statute of limitations for bringing a breach of warranty claim under the UCC, as adopted in Pennsylvania and Ohio, is four years. 13 Pa. Cons. Stat. § 2725; Ohio Rev. Code § 1302.98; see U.C.C. § 2-725 (Am. Law Inst. & Unif. Law Comm'n 1977). The statute of limitations for a breach of contract claim relating to contracts for sale under either Pennsylvania or Ohio law is also four years.[5] 42 Pa. Cons. Stat. § 5525; Ohio Rev. Code § 1302.98. Under all operative statutes, then, the statute of limitations for plaintiff's claims is four years.

         Plaintiff's allegations concern conduct that occurred from in and around December 2014 to in and around January 2015. (ECF No. 1 ¶ 11.) As noted above, the court dismissed this action without prejudice on November 28, 2016. (ECF No. 71.) Less than two years passed between the time at which the alleged conduct took place and this court's order dismissing Black Bear's claims. Because the court's order was issued well before the expiration of the statutory period of four years, the court's order of dismissal without prejudice was not a “final order” for purposes of Rule 60(b). See Atkinson, 610 F.App'x at 111; Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir. 2005) (“[A]n order dismissing a complaint without prejudice is not a final and appealable order . . . [unless] the statute of limitations has run by the time the court orders dismissal without prejudice.”); Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002) (“[A]n order dismissing a complaint without prejudice is not a final order as long as the plaintiff may cure the deficiency and refile the complaint.”). Relief pursuant to Rule 60(b) is, therefore, unavailable in this matter, because the court's order dismissing plaintiff's complaint without prejudice was not a final order, as required under Rule 60(b). See Penn West, 371 F.3d at 125 (holding that “relief is unavailable under Rule 60(b)” in the absence of a final order).

         B. Federal Rule of Civil Procedure 59(e)

         Because the court's order to dismiss did not constitute a final order, the court finds that plaintiff's motion for reinstatement of the complaint is properly treated as a motion for reconsideration. U.S. ex rel. Streck v. Allergan, Inc., 288 F.R.D. 88, 91 (E.D. Pa. 2012). A motion for reconsideration, or a motion to alter or amend a judgment under Rule 59(e), is a “device to relitigate the original issue” decided by the district court and to allege legal error. United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003). Courts have construed motions similar to Black Bear's as Rule 59(e) motions “where [a] Plaintiff's ...


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