United States District Court, E.D. Pennsylvania
MEMORANDUM AND ORDER
civil action, which was previously dismissed and reinstated
upon agreement of the parties, is once again before us on
motion of the Plaintiff, Barbara Johnson, for reconsideration
of our Order of February 14, 2018 granting the
Defendant's Motion to Dismiss the First Amended Complaint
as uncontested. For the reasons set forth below, the motion
shall be granted.
of the Case
alleged in the Plaintiff's First Amended Complaint, in
January 2015, she and her now-late husband, Richard A.
Johnson, Sr. opened a checking account at a Susquehanna
branch office in Kennett Square, Pennsylvania. Plaintiff
alleges that at some unspecified time and without her
knowledge or consent, the Defendant Bank “negligently
allowed” her step-son, Richard A. Johnson, Jr. to be
added to the signature card on the account and to change the
mailing address for the bank statements on the account to his
home address. Thereafter, the Defendant Bank purportedly
accepted and deposited some $509, 110 in forged check
deposits from Johnson, Jr., which checks were made out either
to Plaintiff individually or to Plaintiff and her husband,
Johnson, Sr., only. The Amended Complaint goes on to aver
that subsequently, Johnson, Jr. was permitted to withdraw
those monies himself, thereby converting them to his own use.
First Amended Complaint contains four counts: the first three
sound in negligence and the fourth in breach of contract.
Defendant's Motion to Dismiss sought to dismiss the
Amended Complaint on the grounds that the first three counts
are barred by the gist of the action and/or economic loss
doctrines and by the Uniform Commercial Code and because the
fourth count fails to allege breach. As noted, we did not
reach the merits of these arguments given that Plaintiff
failed to timely file a response in opposition. Plaintiff now
moves, pursuant to Fed.R.Civ.P. 59(e) and/or 60(b)(1), for
reconsideration and set-aside of our February 14, 2018 Order
granting the Motion to Dismiss as uncontested.
the courts generally recognize that differences exist between
Rule 59(e) and Rule 60(b), there is considerable overlap
between the two such that in practice, the rules permit the
same relief - a change in judgment. Williams v.
Thaler, 602 F.3d 291, 303 (5th Cir. 2010). A motion
under Fed.R.Civ.P. 59(e) is one which seeks to “alter
or amend judgment.” The Rule is silent as to when and
under what circumstances such a motion is properly granted -
it states only that such a motion “must be filed no
later than 28 days after the entry of the judgment.”
However, Third Circuit law is fairly clear that
“[m]otions for reconsideration under Fed.R.Civ.P. 59(e)
are intended ‘to correct manifest errors of law or fact
or to present newly discovered evidence, '” and
“are to be granted sparingly because of the interests
in finality and conservation of scarce judicial
resources.” Howard Hess Dental Labs., Inc. v.
Dentsply Int'l Inc., 602 F.3d 237, 251 (3d Cir.
2010);(quoting, inter alia, Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)); Brooks
v. Horn, Civ. A. No. 00-3637, 2004 U.S. Dist. LEXIS 8427
at *2 (E.D. Pa. May 4, 2004)(quoting Harsco,
supra, and Jones v. Dalton No. 95-7940,
1998 U.S. Dist. LEXIS 12484 at *5 (E.D. Pa. Aug. 11, 1998)).
“[a] motion for reconsideration is not an opportunity
for a party to present previously available evidence or new
arguments.” Federico v. Charterers Mut. Assurance
Ass'n Ltd., 158 F.Supp.2d 565, 578 (E.D. Pa. 2001).
See also, McNeal v. Maritank Phila., Inc.,
No. 97-0890, 1999 WL 80268, at *4 (E.D. Pa. Jan. 29,
1999)(“A motion for reconsideration may not be used to
present a new legal theory for the first time or to raise new
legal arguments that could have been made in support of the
original motion.”)(citing Vaidya v. Xerox
Corp., No. 97-547, 1997 WL 732464, at *2 (E.D. Pa. Nov.
25, 1997)). It also is not to be used to give a litigant a
“second bite at the apple, ” nor may it be used
to rehash arguments which have already been briefed by the
parties and considered and decided by the court.
Bhatnagar v. Surrendra Overseas, Ltd., 52 F.3d 1220,
1231 (3d Cir. 1995); Taksir v. Vanguard Group, Inc.,
273 F.Supp.3d 539, 544 (E.D. Pa. 2017). “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 [original] motion ...; or (3) the need to
correct a clear error of law or fact or to prevent manifest
injustice.” Wiest v. Lynch, 710 F.3d 121, 128
(3d Cir. 2013); Howard Hess, supra,
(quoting Max's Seafood Café v. Quinteros,
176 F.3d 669, 677(3d Cir. 1999).
other hand, Fed.R.Civ.P. 60(b) sets forth the grounds for
relief from a final judgment, order or proceeding as follows:
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct ...