United States District Court, E.D. Pennsylvania
CHRISTOPHER BLAKE and JAMES ORKIS, individually and on behalf of all others similarly situated, Plaintiffs,
JPMORGAN CHASE BANK, N.A., CHASE BANK USA, N.A., JPMORGAN CHASE & CO., and CROSS COUNTRY INSURANCE COMPANY, Defendants.
a putative class action brought by homeowners claiming
violations of the Real Estate Settlement Procedures Act, 12
U.S.C. § 2607 (RESPA). The plaintiffs claim that the
defendants carried on a “captive reinsurance scheme,
” through which they enjoyed kickbacks, referrals, and
fees that are prohibited by RESPA. On June 14, 2017
defendants filed a motion to dismiss the amended complaint
(Doc. No. 52) which I granted by Memorandum and Order dated
March 28, 2018 (Doc. Nos. 64, 65).
now move for reconsideration of that Order. (Doc. No. 65.)
Defendants filed a response in opposition. (Doc. No. 72.)
Plaintiffs also filed a motion to intervene on behalf of
James Dudley and Samantha Dudley (Doc. No. 66) which
defendants oppose (Doc. No. 73). For the reasons discussed
below, plaintiffs' motions are denied.
deciding a motion for reconsideration may alter or amend a
judgment “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 . .
.; or (3) the need to correct a clear error of law or fact or
to prevent manifest injustice.” Max's Seafood
Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (citing N. River Ins. Co. v.
CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
Plaintiffs forfeited American Pipe tolling.
argue that I committed clear error of law in holding that
plaintiffs forfeited their right to tolling under
American Pipe when they filed the instant action
before the final disposition in Samp, et al. v. JPMorgan
Chase Bank, N.A., et al., No. 11-1950 (C.D. Cal).
Plaintiffs argue, for the first time, that “where a
class has not been certified [American Pipe] tolling
does not extent through the pendency of an appeal.”
(Doc. No. 65 at 5.) This argument fails for several reasons.
plaintiffs did not advance this argument in their numerous
briefs in opposition to defendants' motion. (See
e.g., Doc. No. 55 at 18 (arguing that plaintiffs did not
forfeit American Pipe tolling because sister
circuits have held that “the filing of a separate
action prior to a final determination on class certification
does not bar plaintiffs from claiming the benefit of
American Pipe tolling.”).) It is improper for
plaintiffs to now assert a novel and contradictory theory
that they did not forfeit American Pipe tolling
because the final determination on class certification
occurred when the district court dismissed the Samp
action. See Blystone v. Horn, 664 F.3d 397, 416 (3d
Cir. 2011) (quoting Howard v. United States, 533
F.3d 472, 475 (6th Cir. 20008)) (motions for
reconsideration “cannot be used to present new
arguments that could have been raised prior to
judgment.”). I find that it is improper for plaintiffs
to assert this new legal theory when they could have done so
in their voluminous opposition to defendants' motion to
argument also fails for the independent reason that
forfeiture of American Pipe tolling is a novel issue
with no controlling law. In addressing this argument at the
motion to dismiss stage plaintiffs acknowledged the novelty
of this issue stating, “[i]ndeed, the Third Circuit has
not addressed this issue.” (Doc. No. 55 at 18.) There
can be no manifest error of law requiring reconsideration
under Third Circuit precedent when there is, in fact, no
precedent. State College Area School District v. Royal
Bank of Canada, No. 10-1823, 2012 WL 12904124, at n. 1
(M.D.Pa. Feb. 3, 2012) (“[A]bsent a change in law or
fact or a showing that the court's decision is manifestly
inconsistent with binding authority, a mere disagreement with
the court's decision on a novel issue does not warrant a
motion for reconsideration.”); Rideout v. Public
Opinion, No. 09-0403, 2011 WL 901802, at *1 (M.D.Pa.
Mar. 15, 2011) (“The Court questions whether a court
order could ever constitute a clear error of law where no
contrary legal precedent exists. Because Defendants have
failed to establish the existence of an error of law, let
alone a clear error of law, the Court cannot grant
reconsideration on this basis.”); see Schulmerich
Bells, LLC v. Jeffers Handbell Supply, Inc., No.
17-0275, 2017 WL 1134131, at *3 (E.D.Pa. Mar. 27, 2017).
the case law cited by plaintiffs in their motion for
reconsideration is taken out of context and does not stand
for the proposition asserted by plaintiffs. Plaintiffs argue
that the Court in Yang held that “there is no
basis for extending applicable tolling through the pendency
of  appeal.” (Doc. No. 65 at 6 (citing Yang,
392 F.3d at 102).) However, the Yang Court did not
announce a new rule of law. Instead, the court held that
there was no basis to extend tolling through appeal because,
in that specific case, there was a final determination on
class certification when the district court denied class
certification with prejudice. Yang, 392 F.3d at 102.
Here, in contrast, it is undisputed that the Samp
court did not reach the merits of class certification.
Samp was dismissed based on the lead plaintiffs'
untimely filing of the complaint, which does not amount to a
final determination on class certification that would cease
as I did in my Memorandum and Order granting defendants'
motion to dismiss, that plaintiffs forfeited their right to
tolling when they filed the instant action before the final
resolution in Samp.
Plaintiffs' individual ...