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Johnson v. BB&T Corp.

United States District Court, E.D. Pennsylvania

March 28, 2018

BARBARA JOHNSON Plaintiff
v.
BB&T CORPORATION, formerly known as SUSQUEHANNA BANK/ BB & T, INC. Defendant

          MEMORANDUM AND ORDER

          JOYNER, J.

         This civil action, which was previously dismissed and reinstated upon agreement of the parties[1], 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.

         History of the Case

         As 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 Bank[2] 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[3]. 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.

         The 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.

         Discussion

         Although 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)).

         Additionally, “[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).

         On the 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 ...

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