Katz v. Feldman

Filing 22

MEMORANDUM - Signed by Judge Maryellen Noreika on 3/22/19. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BERNARD KATZ,
Plaintiff,
v.
WILLIE FELDMAN,
Defendant.

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C.A. No. 18-213 (MN)

MEMORANDUM
I.

INTRODUCTION
Plaintiff, Bernard Katz, (“Katz”), who appears pro se, commenced this action on

February 6, 2018, against Defendants Willie Feldman (“Feldman”), individually, and Salem
Botanicals, Inc. (“Salem Botanicals”) alleging fraud during an arbitration proceeding and asking
the Court to set aside an arbitration award. (D.I. 1). Feldman filed an Amended Counterclaim for
judgment and lien against Katz and Telesonic Corp. (D.I. 7). On January 18, 2018, the Court
denied without prejudice Katz’s Amended Motion to Vacate Arbitration Award (D.I. 5), dismissed
without prejudice the Third Amended Complaint (D.I. 9), and dismissed without prejudice
Feldman’s Amended Counterclaim (D.I. 7). Katz has filed a Letter/Motion for Reconsideration
with exhibits, and Feldman has filed a Motion to Confirm Arbitration Award as Judgment.
(D.I. 19, 20, 21). The Court turns first to the Letter/Motion for Reconsideration.
II.

MOTION FOR RECONSIDERATION
The purpose of a motion for reconsideration is to “correct manifest errors of law or fact or

to present newly discovered evidence.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros,
176 F.3d 669, 677 (3d Cir. 1999). “A proper Rule 59(e) motion . . . must rely on one of three
grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; 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) (citing N. River Ins. Co. v. CIGNA Reinsurance Co.,
52 F.3d 1194, 1218 (3d Cir. 1995)).
Katz moves for reconsideration on the grounds that Telesonic Packaging Corp. is a sole
proprietorship and not a corporation and, therefore, he is an appropriate party in this matter and
has standing to appear pro se on its behalf. This action was dismissed without prejudice on
January 18, 2019, based upon the Court’s lack of jurisdiction. Katz does not mention this Court’s
lack of jurisdiction. Instead he dwells on the lack of standing that the Court found was an
alternative reason for dismissal.
Salem Botanicals, Inc., claimant in the underlying arbitration matter, was never served.
Nor was Telesonic Packaging Corp., respondent in the underlying matter, ever named as a Plaintiff
in this action. While Katz points the Court to a State case that allowed him to proceed pro se on
behalf of Telesonic Packaging Corp., the Court notes that the named defendant in the State case
was Bernard Katz, sole proprietor d/b/a Telesonic Packaging Corp. (See D.I. 20-1 at 1). Here, the
only Plaintiff is Bernard Katz, pro se; not Bernard Katz, d/b/a Telesonic Packaging Corp. For
purposes of jurisdiction, it matters not that Katz does business as Telesonic Packaging Corp.
Telesonic Packaging was never a named Plaintiff.

In addition, while Feldman filed a

“counterclaim” 1 against Telesonic Packaging Corp., the record reflects that Telesonic Packaging
Corp. was not properly served and never answered the counterclaim.
The Court lacks jurisdiction over this matter. As a result, Katz’s motion fail on the merits
because he has not set forth any intervening changes in controlling law, new evidence, or clear

1

Because Telesonic Packaging Corp. is not a party, the property characterization of the
claim is a third-party complaint. See Fed. R. Civ. P. 14.
2

errors of law or fact made by the Court to warrant granting reconsideration with regard to the issue
of jurisdiction.

See Max’s Seafood Café, 176 F.3d at 677.

Therefore, the motion for

reconsideration will be denied.
III.

MOTION TO CONFIRM ARBIRTRATION AWARD AS JUDGMENT
Feldman asks the Court to confirm the underlying arbitration award and enter judgment.

(D.I. 21). The motion will be denied. As noted in the Courts January 18, 2019, Feldman is not an
attorney and may not represent the interests of Salem Botanicals, Inc. Salem Botanicals, Inc. must
be represented by counsel. Moreover, Salem Botanicals, Inc. has never been served, and the Court
does not have jurisdiction over it.
IV.

CONCLUSION
For the above reasons, the Court will: (1) deny Katz’ Letter/Motion for Reconsideration

(D.I. 19) and (2) deny Feldman’s Motion to Confirm Arbitration Award (D.I. 21). The case
remains closed.
An appropriate order will be entered.

The Honorable Maryellen Noreika
United States District Judge
March 22, 2019
Wilmington, Delaware

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