D'Angio v. Borough of Nescopeck, 4:CV-98-1115.

• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
• Writing for the Court: McClure
• Citation: 56 F.Supp.2d 502
• Parties: Decio D'ANGIO, Plaintiff, v. BOROUGH OF NESCOPECK, et al., Defendants.
• Docket Number: No. 4:CV-98-1115.,4:CV-98-1115.
• Decision Date: 06 July 1999

56 F.Supp.2d 502 Decio D'ANGIO, Plaintiff,
v.
BOROUGH OF NESCOPECK, et al., Defendants. No. 4:CV-98-1115. United States District Court, M.D. Pennsylvania. July 6, 1999.

Page 503

Carl Max Janavitz, Warner Mariani, Pittsburgh, PA, for plaintiff.

Donald H. Brobst, Wilkes-Barre, PA, for defendants.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND:

On June 10, 1998, plaintiff Decio D'Angio commenced this action with the filing of a complaint alleging that the Public Indecency Ordinance ("the ordinance" or "Nescopeck ordinance") enacted by Nescopeck on May 11, 1998, violates (1) his freedom of speech under the United States and Pennsylvania Constitutions and (2) his rights under the Equal Protection provisions of both constitutions. By order dated January 29, 1999, this court granted defendants' motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6). This court declined to exercise supplemental jurisdiction over plaintiff's state constitutional claims pursuant to 28 U.S.C. § 1367(c)(1) and (3). Moreover, this court distinguished the decision in Pap's A.M. v. City of Erie [Pap's II], 553 Pa. 348, 719 A.2d 273 (1998), wherein the Pennsylvania Supreme Court declined to follow the precedent set forth by the United States Supreme Court in Barnes v. Glen Theatre, Inc., et al., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). On May 17, 1999, the United States Supreme Court granted certiorari

Page 504

on the Pap's II decision. See City of Erie v. Pap's A.M., ___ U.S. ___, 119 S.Ct. 1753, 143 L.Ed.2d 786 (1999).

Presently before the court is plaintiff's motion for reconsideration of this court's order of January 29, 1999. For the reasons which follow, we will deny plaintiff's motion.

DISCUSSION:

I. STANDARD 1. Motion For Reconsideration

The federal rules allow a party to move to alter or amend a judgment within ten (10) days of its entry. FED.R.CIV.P. 59(e). According to the Third Circuit, "[t]he purpose of a motion for reconsideration is to correct manifest errors of law or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). However, where evidence is not newly discovered, a party may not submit that evidence in support of a motion for reconsideration. Id. at 909 (citing DeLong Corp. v. Raymond Int'l Inc., 622 F.2d 1135, 1139-40 (3d Cir.1980)). Accordingly, reconsideration motions will be granted only where (1) an intervening change in the law has occurred, (2) new evidence not previously available has emerged, or (3) the need to correct a clear error of law or prevent a manifest injustice arises. North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995). Reconsideration of judgment is an extraordinary remedy; therefore, such motions are to be granted sparingly. NL Industries v. Commercial Union Ins., 935 F.Supp. 513 (D.N.J.1996) (citing Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J. 1986)).

II. RECONSIDERATION IS NOT REARGUMENT

In order for plaintiff's motion to be granted, there must be an intervening change in the law, the availability of new evidence, or the need to correct a clear error of law. Here, there has been no intervening change in the law. Moreover, plaintiff has not introduced any new evidence; indeed, no evidence has been introduced, as the Rule 12(b)(6) motion has been granted solely on the pleadings. Therefore, for the motion for reconsideration to be granted, plaintiff must satisfy the court that there is the need to correct a clear error of law.

It is under this third prong we analyze the merits of plaintiff's motion. However, we preface our opinion here with our belief that there is no clear error of law to correct. Indeed, plaintiff, proceeding under the direction of new counsel, now presents to the court arguments that were never meaningfully briefed in his opposition to defendants' motion to dismiss. As stated by our Chief Judge: "`Judges are not like pigs, hunting for truffles buried in briefs.' ... A litigant who fails to press a point by supporting it with authority or by showing why it is a good point despite a lack of authority ... forfeits the point." Grossman v. Jiminez, No. 91-0423, slip op. at 5 (M.D.Pa.) issued April 17, 1991 (Rambo, C.J.) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). It is somewhat audacious to ask the court to reconsider a decision because of a legal theory not properly presented for the court's initial consideration.

In the absence of the arguments now being presented in plaintiff's motion for reconsideration, we granted in part defendants' motion to dismiss based on Barnes, 501 U.S. at 560, 111 S.Ct. 2456, 115 L.Ed.2d 504. Indeed, despite the splintered opinions of the Barnes Court, five justices agreed, and the Court held, that the Indiana statute, as applied to prohibit nude dancing performed as entertainment, did not violate the First Amendment.¹ The holding is the supreme law of the land, binding upon this court and all other inferior courts.

Page 505

Notwithstanding plaintiff's failure meaningfully to address in his initial brief the arguments he now presents for reconsideration, the court will now consider them in view of the significant constitutional issues. From his brief in support of the motion for reconsideration, we were able to ferret out two main arguments that were previously unaddressed. First, plaintiff contends that the court should have followed Justice Souter's concurring opinion, in accordance with Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Second, plaintiff argues that the Nescopeck ordinance is unconstitutionally overbroad. We will now address these arguments seriatim.

1. Application of Marks v. United States

Plaintiff argues that Justice Souter's opinion in Barnes is the controlling holding since there is no majority opinion. See Plaintiff's Brief in Support of Motion For Reconsideration at 6. In support of his argument, plaintiff cites Marks, in which the United States Supreme Court held, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest ground.'" Marks, 430 U.S. at 193, 97 S.Ct. 990 (citing Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Such jurisprudential gymnastics are necessary, however, only when the facts of the instant case vary materially from those of the cited authority, not the situation here.

Assuming arguendo Justice Souter's concurrence is the controlling holding, it still does not correct an error in the law. Justice Souter held that the state's interest supporting the statute was not society's moral views, but rather the interest in fighting the secondary effects of adult entertainment establishments. Barnes, 501 U.S. at 581, 111 S.Ct. 2456.

Justice Souter agreed with the plurality opinion that the test found in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)², should be applied in Barnes. See Barnes, 501 U.S. at 582, 111 S.Ct. 2456. This court applied the O'Brien test to the instant case. See D'Angio v. Borough of Nescopeck, 34 F.Supp.2d 256, 260 (M.D.Pa.1999). As discussed below, we reach the same conclusion with...