Downs v. Locke, CIVIL ACTION NO. 18-4529

• Decision Date: 07 August 2020
• Docket Number: CIVIL ACTION NO. 18-4529
• Parties: DAVID B. DOWNS, Plaintiff, v. GEORGE LOCKE, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

DAVID B. DOWNS, Plaintiff, v. GEORGE LOCKE, Defendant.

CIVIL ACTION NO. 18-4529

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 7, 2020

DuBois, J.

MEMORANDUM

I. INTRODUCTION

In this First Amendment retaliation case, plaintiffs David and Margaret Downs seek reconsideration of this Court's May 22, 2020 Memorandum and Order with respect to several rulings. Defendant George Locke seeks reconsideration of those parts of this Court's May 22, 2020 Memorandum and Order concluding that there was sufficient evidence that Locke retaliated against plaintiffs for exercising their First Amendment rights and denying Locke qualified immunity with respect to plaintiffs' First Amendment retaliation claim against him in his individual capacity. For the reasons set forth below, plaintiffs' motion for reconsideration is denied and defendant George Locke's motion for reconsideration is granted.

II. BACKGROUND¹

Locke is the Borough Manager of the Borough of Jenkintown ("the Borough"), where plaintiffs reside. As Borough Manager, Locke reports to the Borough Council. In addition to his duties as Borough Manager, Locke also handled "code and enforcement, and zoning matters."Locke stated the Jenkintown Zoning Code ("Zoning Code") was a "gray area" and difficult to enforce.

From October 2016 until October 2017, the Borough received at least five complaints from plaintiffs' neighbors—the Glasses—that plaintiffs were operating an impact business in violation of the Zoning Code—a landscaping and lawn mowing business. The Glasses submitted photographs with the complaints that purported to show plaintiffs operating an impact business. Locke testified that, after the Glasses' first complaint against plaintiffs in October 2016, but before their second complaint in September 2017, Magisterial District Judge Elizabeth McHugh, in an oral ruling in a case involving the Glasses, expanded the definition of an impact business under the Zoning Code so as to include a broader range of activities. Jenkintown Borough Solicitor Sean Kilkenny testified that he was "personally present" when Judge McHugh announced that ruling. Kilkenny Dep. 49:23-50:10.

Locke sought legal advice from Solicitor Kilkenny, on the question of whether the evidence against plaintiffs was sufficient to issue a Notice of Violation to them for operating an impact business in violation of the Zoning Code. Locke provided Solicitor Kilkenny with the evidence—including photographs—on the question whether plaintiffs operated an impact business. Kilkenny testified that he advised Locke that "he had a reasonable basis" to issue the Notice of Violation "based on the evidence and based on Judge McHugh's version of how she was interpreting the Code." Kilkenny Dep. 49:23-50:7. Locke followed Solicitor Kilkenny's legal advice and issued the Notice of Violation to plaintiffs on December 7, 2017.

At a hearing on March 26, 2018, Judge McHugh determined that the Notice of Violation issued to plaintiffs was defective because it did not include the date by which the plaintiffs were required to file any appeal to the Zoning Hearing Board. As a result, Locke issued a secondNotice of Violation to plaintiffs. Plaintiffs appealed the second Notice of Violation to the Borough Zoning Hearing Board, which issued a decision in plaintiffs' favor and vacated the second Notice of Violation.

Plaintiffs filed a Complaint in this case on October 23, 2018. On December 10, 2018, plaintiffs filed an Amended Complaint against the Borough; Jenkintown Borough Solicitor Kilkenny; Debora Pancoe, Borough Council President; Richard Bunker, Borough Council Vice President; and George Locke, the Borough Manager (Document No. 4). The Amended Complaint asserted three claims: (1) First Amendment retaliation pursuant to § 1983 against all defendants (Count I); (2) state law abuse of process against Solicitor Kilkenny and Borough Manager Locke (Count II); and (3) state law conspiracy against Solicitor Kilkenny and Borough Manager Locke (Count III). First Am. Compl. ¶¶ 9-12.

By Memorandum and Order dated March 22, 2019, the Court granted in part and denied in part defendants' motion to dismiss. The Court dismissed: (1) the First Amendment retaliation claim (Count I) against defendants Pancoe, Bunker, and Locke in their official capacities; (2) the state law abuse of process claim (Count II) against defendants Kilkenny and Locke; and (3) the First Amendment retaliation (Count I) and state law civil conspiracy (Count III) claims against defendant Sean Kilkenny in both his official and individual capacity. Following the Court's ruling, the remaining claims in the case were: (1) the First Amendment retaliation claim against Pancoe, Bunker, and Locke in their individual capacities (Count I); (2) the First Amendment retaliation claim against the Borough (Count I); and (3) the civil conspiracy claim against Locke in his official and individual capacity (Count III).

On November 15, 2019, defendants moved for summary judgment on all remaining claims (Document No. 19). Plaintiffs responded on December 20, 2019 (Document No. 25). ByMemorandum and Order dated May 22, 2020, the Court granted in part and denied in part defendants' motion for summary judgment. The Court granted defendants' motion with respect to (1) the First Amendment retaliation claim against Pancoe and Bunker in their individual capacities (Count I); (2) the First Amendment retaliation claim against the Borough (Count I); and (3) the civil conspiracy claim against Locke in his official and individual capacity (Count III). The Court denied defendants' motion for summary judgment with respect to the First Amendment retaliation claim against Locke in his individual capacity. With respect to that claim, the Court concluded that plaintiffs had produced sufficient evidence that Locke retaliated against them because of their exercise of First Amendment rights. The Court also concluded that Locke was not entitled to qualified immunity on plaintiffs' First Amendment retaliation claim, in part, because there was genuine dispute of material fact with respect to Locke's reliance on the advice of counsel. That determination was based on the fact that Solicitor Kilkenny's advice to Locke relied on the prior ruling of Judge McHugh—a ruling plaintiffs claimed did not exist.

On June 4, 2020, Locke filed a motion for reconsideration requesting that the Court reconsider its prior decision with respect to plaintiffs' First Amendment retaliation claim against him (Document No. 36). Plaintiffs responded on June 18, 2020 (Document No. 38).² That same day, plaintiffs filed a motion for reconsideration of several prior rulings (Document No. 39). Locke responded on July 1, 2020 (Document No. 40). The motions are thus ripe for decision.

III. LEGAL STANDARD

"Federal courts have a strong interest in the finality of judgments, and motions for reconsideration should be granted sparingly." Roofers Local No. 30 Combined Pension Fund v.D.A. Nolt, Inc., 719 F. Supp. 2d 530, 554 (E.D. Pa. 2010), aff'd, 444 F. App'x 571 (3d Cir. 2011). Only three situations warrant granting reconsideration: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The moving party has the burden of establishing one of these grounds. Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). The grant or denial of reconsideration lies within the discretion of the district court. N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).

The scope of a motion for reconsideration is "extremely limited" and should not be used to relitigate the case. Blystone, 664 F.3d at 415. A motion for reconsideration "addresses only factual and legal matters that the Court might have overlooked." Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993) (internal citation omitted). "It is improper on a motion for reconsideration to ask the Court to rethink what it already thought through—rightly or wrongly." Id. (citation omitted).

IV. DISCUSSION

Both parties moved for reconsideration of this Court's May 22, 2020 Memorandum and Order that granted in part and denied in part defendants' motion for summary judgment. The Court will address each motion in turn.

A. Plaintiffs' Motion for Reconsideration

First, plaintiffs assert that the Court made numerous factual and legal errors in its May 22, 2020 Memorandum. Specifically, plaintiffs argue that the Court:

• Failed to determine that plaintiffs did not operate an impact business;

• Failed to determine that the Glasses were operating an impact business;

• "[D]id not acknowledge and/or failed to consider the nature of plaintiffs difficulties with the Glasses and the failure of the Borough to provideprotection—which demonstrates clear animus toward plaintiffs[;]"

• "[F]ailed . . . to identify the admissions contained in Locke's October 11, 2017 Memorandum to [the] Council[,] which would have led to the obvious inference that Locke did not act independently when issuing the Notice of Violation and Citation to Plaintiffs[;]"

• "[O]verlooked Defendant Bunker's admissions of animus toward plaintiffs and his consent/participation [in] the decision to falsely cite plaintiffs for zoning violations[;]"

• "[C]ommit[ted] error by dismissing the testimony of Laurie Durkin and other evidence of Pancoe's direct involvement in the retaliation[;]"

• "[E]rred by not considering in its Decision the material fact that Pancoe had directed Locke not to issue the Notice of Violation before the election[;]"

• "[M]isunderst[ood] the abatement issue and failed to determine that Pancoe and Bunker wanted plaintiffs cited no matter what[;]"

• "[C]ommitted an error by determining the facts regarding the property maintenance errors in

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