Bruno v. Bozzuto's, Inc., Civil No. 3:09–CV–00874.

• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
• Citation: 127 F.Supp.3d 275
• Docket Number: Civil No. 3:09–CV–00874.
• Parties: Michael BRUNO, et al., Plaintiffs, v. BOZZUTO'S, INC., Defendant.
• Decision Date: 31 August 2015

127 F.Supp.3d 275

Michael BRUNO, et al., Plaintiffs,
v.
BOZZUTO'S, INC., Defendant.

Civil No. 3:09–CV–00874.

United States District Court, M.D. Pennsylvania.

Signed Aug. 31, 2015.

127 F.Supp.3d 277

Gene E. Goldenziel, Needle, Goldenziel & Pascale, P.C., Scranton, PA, for Plaintiffs.

Gary P. Lightman, Lightman, Manochi & Christensen, Glenn A. Manochi, Philadelphia, PA, for Defendant.

MEMORANDUM

MATTHEW W. BRANN, District Judge.

Currently pending before the Court is Plaintiffs Michael Bruno, Lisa Bruno, Bruno's Market, Inc., and Bruno's Market II (collectively "Brunos") Motion for Reconsideration of the Court's July 30, 2015 Order. (ECF No. 224). For the reasons set forth below, the Motion will be denied.

I. Background¹

This Motion comes as a result of three separate Orders of this Court. On February 6, 2012 while this case was still before the Honorable Robert D. Mariani, an Order was issued related to Bozzuto's motion for spoliation sanctions. (ECF No. 127). In that Order, Judge Mariani concluded that Brunos had spoliated evidence and ordered that Brunos recreate the missing evidence at their own expense. Id. Judge Mariani denied further sanctions without prejudice, stating that he would consider more severe sanctions if the evidence proved to be unavailable. Id.

On April 23, 2015, this Court considered a renewed motion for sanctions, and determined that an adverse inference sanction was appropriate based on Brunos' intentional and bad faith destruction of evidence. (ECF No. 212). However, the Court denied monetary sanctions, noting that further discovery disputes may be looming, and further noting that Bozzuto's must specifically delineate any time spent

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addressing discovery and spoliation issues. Id.

Finally, in response to Bozzuto's renewed motion for monetary sanctions and request that Brunos' expert witnesses be disallowed, on July 30, 2015 this Court issued an additional Order. (ECF No. 223). In that Order, the Court set a date for a Daubert hearing and established a briefing schedule in anticipation of that hearing. Id. The Court also concluded that it may be appropriate to issue monetary sanctions prior to trial and advised the parties that, upon completion of the Daubert hearing, the Court would entertain arguments relating to monetary sanctions. Id.

II. Discussion

A motion for reconsideration under Federal Rules of Civil Procedure 59(e)"is a ‘device to relitigate the original issue’ decided by the district court, and used to allege legal error." United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir.2003) (quoting Smith v. Evans, 853 F.2d 155, 158–59 (3d Cir.1988) ). A proper Rule 59(e) motion "must rely on one of three major grounds: (1) an intervening change in controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct clear error of law or prevent manifest injustice." Holsworth v. Berg, 322 Fed.Appx. 143, 146 (3d Cir.2009) (quoting N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995) ) (internal quotation marks omitted).

Although counsel for Brunos ("Counsel") has submitted an unclear, confusing, and somewhat rambling brief in support of his Motion, the Court believes that the Motion seeks reconsideration on the grounds that the Court's Order contained clear errors of law or fact. Additionally, although Counsel presents his Motion as one seeking reconsideration of the Court's July 30, 2015 Order, it is apparent that he in fact also seeks reconsideration of this Court's April 23, 2015, and Judge Mariani's prior Order of February 6, 2012.

A. Judge Mariani's February 6, 2012 Memorandum and Order

First, Counsel appears to challenge Judge Mariani's determination that Ms. Bruno's admitted contemplation of litigation triggered an affirmative duty to preserve evidence germane to that litigation. (ECF No. 127, p. 9). Specifically, Counsel argues "Judge Vanaskie in Baliotis v. McNeil required the decision to pursue litigation, as opposed to mere contemplation." Since "[n]o counsel was hired or litigation pursued at the time documents were at the time the documents were destroyed before Plaintiffs moved to California [,]" the "Court made a bald conclusion[.]" (ECF No. 230, p. 5).

The Court cannot help but note that the Motion for Reconsideration was filed an astounding 1,281 days after Judge Mariani issued his February 6, 2012 Memorandum and Order. Local Rule 7.10 provides that any "motion for reconsideration ... must be ... filed within fourteen (14) days after the entry of the order concerned." Under this rule, Counsel's Motion is patently untimely. Importantly, Counsel has failed to submit any argument as to why this untimely Motion should be considered under Federal Rule of Civil Procedure Rule 6(b) and its "excusable neglect" standard.² On that basis, the Motion to Reconsider the February 6, 2012 Order is denied.

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Importantly though, even considering Counsel's Motion, the Court concludes that it is without even a modicum of merit. The case that Counsel cites to for the proposition that "mere contemplation" of a lawsuit is insufficient to create a duty to preserve evidence in fact demonstrates the obvious fallacy of his argument. In Baliotis v. McNeil, Judge Vanaskie explained that:

[A] duty to preserve evidence, independent from a court order to preserve evidence, arises where there is: (1) pending or probable litigation involving the defendants; (2) knowledge by the plaintiff of the existence or likelihood of litigation; (3) foreseeability of harm to the defendants, or in other words, discarding the evidence would be prejudicial to defendants; and (4) evidence relevant to the litigation.

870 F.Supp. 1285, 1290 (M.D.Pa.1994) (citation omitted) (emphasis in original). Ultimately, Judge Vanaskie rested much of his conclusion that spoliation had occurred on the fact that "the knowledge of a potential ... claim is deemed sufficient to impose a duty to preserve evidence." Id. (emphasis in original). Consequently, this Court concludes that no clear legal or factual error occurred, and any request to reconsider Judge Mariani's ruling on the matter is denied.

B. April 23, 2015 Spoliation Order

In the Motion, Counsel also challenges certain portions of this Court's April 23, 2015 Spoliation Order. See (ECF No. 224, pp. 4–5). Counsel primarily argues that he will be able to provide documents, and prove that Bozzuto's has failed to provide documents, which "will show that there was no spoliation by Plaintiffs[.]" Id. at p. 4. Counsel also contends that "without any evidence whatsoever, this Court has made findings contrary to Judge Mariani's as to plaintiff's motive and degree of evidence needed to show that there was not spoliation and/or no prejudice to Defendant." Id. at p. 5.

As an initial matter, the Motion for Reconsideration was filed one-hundred nine (109) days after this Court issued its April 23, 2015 Memorandum and Order. As previously noted, Local Rule 7.10 requires that a motion for reconsideration be filed within fourteen days of an Order and therefore this motion is again untimely and denied on that basis. Nevertheless, for the sake of clarity, the Court will address the arguments proffered by Counsel.

1. Law of the Case Doctrine

The Court first turns to Counsel's contention that certain determinations in the April 23, 2015 Order were "contrary to Judge Mariani's as to plaintiff's motive and degree of evidence needed to show that there was not spoliation and/or no prejudice to Defendant." (ECF No. 224, p. 5).

The law of the case doctrine is an "amorphous concept" which "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). This doctrine governs a court's "exercise of discretion" and was developed to "maintain consistency and avoid reconsideration of matter once decided during the course of a single continuing lawsuit." In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir.2009) (quoting Casey v. Planned Parenthood of Se. Pa., 14 F.3d 848, 856 (3d Cir.1994) ; Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, 123 F.3d 111, 116 (3d Cir.1997) ).

"A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances."

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Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (citing Arizona v. California, 460 U.S. at 618 n. 8, 103 S.Ct. 1382 ). Extraordinary circumstances exist where: (1) the initial decision was "clearly erroneous and would make a manifest injustice;" (2) "new evidence is available;" (3) "a supervening new law has been announced;" (4) where the court is "clarifying or correcting an earlier, ambiguous...