United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
February 27, 2018, the court issued a Memorandum and Order,
which denied Agilex's motion for summary judgment
regarding spoliation, (Doc. 106), insofar as Agilex sought
the dismissal of Dyvex's remaining claims, and it granted
Agilex's motion insofar as Agilex sought a jury
instruction at trial regarding the spoliation inference.
(Docs. 154 & 155). On March 16, 2018, Dyvex filed an
untimely motion for reconsideration of the court's stated
Memorandum and Order, combined with a brief in
support.(Doc. 160). Agilex filed briefs in
opposition on March 29, 2018. (Docs. 168 & 169). Dyvex
filed a reply brief on April 4, 2018. (Doc. 171).
on the filings of the parties and the court's review of
its February 27, 2018 Memorandum, it will
DENY Dyvex's motion.
STANDARD OF REVIEW
motion for reconsideration may be used to seek remediation
for manifest errors of law or fact or to present newly
discovered evidence which, if previously discovered, might
have affected the court's decision. United States el
rel. Schumann v. Astrazeneca Pharmaceuticals, L.P., 769
F.3d 837, 848 (3d Cir. 2014) (citing Max's Seafood
Café v. Quineros, 176 F.3d 669, 677 (3d Cir.
1999)); Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909
(3d Cir. 1985). A party seeking reconsideration must
demonstrate 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; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.
2010); Max's Seafood Café, 176 F.3d at
677 (citing North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
However, “[b]ecause federal courts have a strong
interest in the finality of judgments, motions for
reconsideration should be granted sparingly.”
Continental Casualty Co. v. Diversified Indus. Inc.,
884 F.Supp. 937, 943 (E.D. Pa. 1995).
is generally appropriate in instances where the court has
“misunderstood a party, or has made a decision outside
the adversarial issues presented to the [c]ourt by the
parties, or has made an error not of reasoning, but of
apprehension.” York Int'l Corp. v. Liberty Mut.
Ins. Co., 140 F.Supp.3d 357, 360-61 (3d Cir. 2015)
(quoting Rohrbach v. AT & T Nassau
Metals Corp., 902 F.Supp. 523, 527 (M.D. Pa. 1995)).
It may not be used as a means to reargue unsuccessful
theories that were presented to the court in the context of
the matter previously decided “or as an attempt to
relitigate a point of disagreement between the [c]ourt and
the litigant.” Id. at 361 (quoting Ogden
v. Keystone Residence, 226 F.Supp.2d 588, 606 (M.D. Pa.
2002)). The “motion will not be granted merely
because a party is dissatisfied with the court's ruling,
nor will a court consider repetitive arguments that were
previously asserted and considered.” Frazier v. SCI
Med. Dispensary Doctor 2 Staff Members, No. 1:07-194,
2009 WL 136724, at *2 (M.D. Pa. Jan. 16, 2009)
outset, Local Rule 7.10, M.D.Pa., requires that a motion for
reconsideration be filed within fourteen days of an Order.
Dyvex certainly knew of the basis of its instant motion at
the time of the court's decision. Therefore, Dyvex's
motion is untimely by three days and denied as such.
See Bruno v. Bozzuto's, Inc., 127 F.Supp.3d 275,
279 (M.D.Pa. 2015).
the court finds no merit to Dyvex's motion. Dyvex's
motion pertains to the court's ruling regarding
“the tagging and saving of items of physical evidence
following the July 29, 2010 joint fire scene
examination” and, it is only seeking reconsideration of
the court's decision “to the extent it faults
plaintiff for failing to preserve the untagged items
appurtenant to the kneader.” The court considered all
of the numerous exhibits submitted by the parties in its
lengthy decision, including the September 24, 2010 email to
Dyvex from a former attorney for Agilex, John J. Hatzell, who
was at the September 23, 2010 Dyvex site visit with Long,
which stated: “I know you have been careful about
preserving evidence and fully disclosing information relevant
to the claim.” Dyvex states that the court did not
specifically mention this email in its decision and that this
email essentially shows that it met its duty to preserve
evidence during the tagging process. Dyvex argues that based
on this email, it believed that it had properly preserved the
evidence and that no further action was required to preserve
any other evidence. Thus, Dyvex states that the email is
relevant to its degree of fault which the court found to be
court will not rehash its finding with respect to Dyvex's
degree of fault but only points out that it found the parts
of the kneader should have been preserved in place as they
were immediately after the fire since they were relevant
defense evidence despite the fact that Long did not clearly
indicate what he meant to be preserved regarding his Tag #4.
The court then found that Long's lack of clarity and the
fact that Dyvex preserved the kneader machine on-site for
examination by Agilex mitigated Dyvex's degree of fault.
simply because Agilex's former attorney thought Dyvex had
preserved evidence does not in fact mean that it did, as the
court concluded in its decision based on all of the evidence
in the record, as opposed to the facts the former counsel was
aware of in September 2010. Nor does the opinion of
Agilex's prior counsel have any bearing on this
court's detailed analysis and determination that
Dyvex's conduct amounted to a partial failure to fulfill
its duty to preserve all of the potential evidence and that
spoliation clearly did occur.
light of the above, IT IS HEREBY ORDERED
THAT Dyvex's motion for reconsideration, (Doc.
160), is DENIED. The court's February
28, 2018 decision shall not be altered, including its finding
regarding the extent it faulted Dyvex for failing to preserve