SHIPP et al v. DONAHER et al

Filing 33

MEMORANDUM AND ORDER THAT PLFFS' PETITION FOR A JUDICIAL HEARING & RECONSIDERATION IS GRANTED IN PART & DENIED IN PART, ETC. AND THIS COURT'S OPINION DATED 3/25/2010 IS VACATED IN PART, ETC. SIGNED BY HONORABLE LOUIS H. POLLAK ON 6/14/10. 6/15/10 ENTERED AND COPIES E-MAILED: COPIES MAILED TO PRO SE DEFTS AND UNREPRESENTED PARTY.(kw )

U N IT E D STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA WILLIAM and STACY SHIPP, P l a i n t if f s , v. D O N N A DONAHER, et al., D e f e n d a n ts . C IV IL ACTION N o . 09-2475

M E M O R A N D U M /O R D E R O n March 25, 2010, this court issued an opinion and order granting the motions to d ism iss filed by (1) defendants PNC Bank, N.A. and James Rohr, and (2) defendants T u c k e r Arensberg, P.C. and Donna Donaher, and dismissing plaintiffs' complaint. Plaintiffs William and Stacy Shipp now move for reconsideration and for what is, in e ss e n c e, a one-hour evidentiary hearing (docket no. 29). Defendants have filed o p p o s itio n s to the motion (docket nos. 30 and 31), and plaintiffs have filed a reply brief (do ck et no. 32).1 " T h e purpose of a motion for reconsideration is to correct manifest errors of law or f a ct or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 9 0 9 (3d Cir. 1985). Accordingly, reconsideration is appropriate if the moving party

Pursuant to Local Rule 7.1(c), reply briefs may only be filed with leave of c o u rt, and plaintiffs have not moved for leave to file their reply. Plaintiffs will n e v e rth e le ss be given leave to file the reply brief. 1

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s h o w s "(1) an intervening change in the controlling law; (2) the availability of new ev iden ce that was not available when the court granted the motion for summary ju d g m e n t ; or (3) the need to correct a clear error of law or fact or to prevent manifest in ju s tic e ." Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d C ir. 1999). Where errors of law or fact are alleged, factual or legal issues may be re c o n sid e re d if they were "overlooked by the court in its decision," but "[a] motion for re c o n sid e ra tio n is not properly grounded on a request that a court reconsider repetitive a rg u m e n ts that have [been] fully examined by the court." Blue Mountain Mushroom Co. v . Monterey Mushroom, Inc., 246 F. Supp. 2d 394, 398-99 (E.D. Pa. 2002) (internal q u o tation marks omitted). In their opening brief in support of the motion for reconsideration, plaintiffs sim p ly argue that defendants have deprived them of their due process rights and seek both re c o n sid e ra tio n and a hearing on the basis of Mullane v. Central Hanover Bank & Trust, 3 3 9 U.S. 306 (1950). Plaintiffs' Mullane argument, however, does not present a proper b a s is for reconsideration. This court dismissed plaintiffs' due process claim ­ and the rest o f the federal constitutional claims in the complaint ­ on the ground that the complaint f a ile d to allege state action. The only potentially relevant portions of plaintiffs' opening b rief , however, do no more than (1) make the bare assertion that certain defendants were sta te actors, and (2) argue that Mullane involved a state action. Plaintiffs' belief that d e f e n d a n ts are state actors, however, is both unsupported and repetitive of previously

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a d v a n c e d arguments, and whether or not Mullane involved state action is not relevant to th is court's earlier holdings. As a result, nothing in plaintiffs' opening brief warrants re c o n sid e ra tio n or a hearing. U n lik e their opening brief, plaintiffs' reply brief includes several arguments that q u estio n elements of this court's analysis. First, plaintiffs essentially argue that the Third C irc u it's decision in Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1265 (3 d Cir. 1994), as read by this court to preclude a finding that the defendants acted as s ta te actors, would "overrule" the Supreme Court's prior decision in Lugar v. Edmondson O il Co., 457 U.S. 922 (1982). Pls.' Reply at 6. As applied by this court, however, Jordan d id not overrule Lugar but distinguishes it: Lugar involved attachment procedures that, p e r the Supreme Court, resulted in a deprivation of property, see id. at 942, and in Jordan, th e Third Circuit's holding was that a confession of judgment "involves no immediate d e p riv a tio n of property under force of law," 20 F.3d at 1266 n.17. That conclusion a p p lie s directly to the state-court procedures challenged by plaintiffs here. S e c o n d , plaintiffs contend that Jordan is distinguishable because the relevant state ru le s of civil procedure have since been altered. See Pls.' Reply at 7. This court's March 2 5 opinion recognized those changes but concluded that they are "not relevant to the core p ro c e d u re s held by Jordan to be relevant to defendants' status as state or private actors." Docket No. 26, at 12 n.9. Plaintiffs' unsupported assertion that "[r]eading the rules w ith o u t differentiating between pre-and post-Jordan law leads to anomalous outcomes,"

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R e p ly at 7, presents no reason to reconsider that conclusion. In particular, plaintiffs do n o t suggest that the Pennsylvania rule changes altered the effects of a confessed judgment s u c h that the relevant holding in Jordan no longer applies. T h ird , plaintiffs argue that Jordan "involved a third party bank," id., even though th is court characterized Jordan as "not concern[ing] a third party to the confessed ju d g m e n t action," Docket No. 26, at 12 n.9. Plaintiffs admit, however, that "Jordan tre a ted the case as a two party dispute," Reply at 7, and they have presented no reason to q u e stio n this court's conclusion that plaintiffs' status as third parties to the confessed ju d g m e n t proceedings "is irrelevant to the degree of state involvement in the alleged c o n stitu tio n a l deprivations," Docket No. 26, at 12 n.9. F o u r th , plaintiffs argue that the Pennsylvania rules of civil procedure concerning c o n f es s e d judgments for the possession of real property, cited by this court at pages 13 a n d 14 of the March 25 opinion, are irrelevant to the complaint because those rules "do n o t apply to confessed judgment claims for money." Reply at 7. This assertion leads me to believe that my prior opinion misread Paragraph 26 of plaintiffs' lengthy complaint, w h ic h does, in fact, refer to a confessed judgment for an amount of money, even though th a t judgment was to be enforced through the possession of real property. Plaintiffs' m o tio n for reconsideration will therefore be granted in part insofar as this court's prior o p in io n (1) suggests that the confessed judgment action was brought directly against the p ro p e rtie s in question, and (2) relies on the Pennsylvania rules concerning confessed

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ju d g m e n t actions for real property. Nevertheless, both the legal analysis in the prior opinion and this court's c o n c lu s io n that defendants were not state actors remain unaffected. Pennsylvania Rules o f Civil Procedure 2958.1 and 2958.2, which govern notices of execution when a c o n f es s e d judgment for money will be enforced against real property, mandate that the n o tice of execution be sent prior to either "the filing of the praecipe for a writ of e x e cu tio n ," Pa. R. Civ. P. 2958.1, or "the sheriff's sale," id. 2958.2. Here, because p la in tif f s allege that no writ of execution ever issued, see Compl. ¶ 320, and because Rule 2 9 5 8 .2 is used after such a writ is issued, see Pa. R. Civ. P. 2958.2 & 2965, the a lle g a tio n s of the complaint are only consistent with a notice of execution issued prior to e x ec u tio n pursuant to Rule 2958.1. But, as this court's prior opinion held, "the sending of p re -e x e cu tio n notice does not `involve[] [the] immediate seizure or deprivation of p ro p e rty under force of law'" and therefore does not transform the defendants into state a c to rs under the Third Circuit's opinion in Jordan. Docket No. 26, at 14 (quoting Jordan, 2 0 F.3d at 1266 n.17). Plaintiffs have presented no basis for reconsidering that c o n c lu s io n , and this court will accordingly decline (1) to reconsider the dismissal of p la in tif f s' federal constitutional claims, and (2) to grant plaintiffs' request for a hearing.2

This court believed that a hearing would not be helpful to resolving the is s u e s raised by defendants' motions to dismiss when it issued the March 25 opinion and o rd e r, and nothing in plaintiffs' briefing alters that belief. Plaintiffs argue that a hearing is mandated by Rule 12(I) of the Federal Rules of Civil Procedure, which states that "[i]f a party so moves, any defense listed in Rule 12(b)(1)-(7) ­ whether made in a pleading or 5

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A N D NOW, for the foregoing reasons, it is, this 11th day of June, 2010, hereby O R D E R E D that plaintiffs' Petition for a Judicial Hearing and Reconsideration (Docket N o . 29) is GRANTED IN PART AND DENIED IN PART. The motion is granted to th e extent that it seeks reconsideration of this court's factual conclusion that the confessed ju d g m e n t actions in plaintiffs' complaint were actions for the possession of real property in s te a d of confessed judgment actions for money that were to be enforced against real p r o p e r ty, and this court's opinion dated March 25, 2010 (docket no. 26) is VACATED I N PART to the extent that it adopts that factual conclusion and cites to state rules of c iv il procedure governing confessed judgments against real property. The motion is o th e rw ise denied, and this court's order dismissing plaintiffs' complaint (docket no. 27) is u n a f f e c te d . B Y THE COURT: /s /L o u is H. Pollak P o l la k , J.

by motion ­ . . . must be heard and decided before trial unless the court orders a deferral u n til trial." This reference to a "hearing," however, is satisfied by receiving paper b rie f in g from the parties. See Crader v. Wal-Mart Stores, Inc., No. 09-cv-112, 2010 WL 1 4 4 4 8 7 6 , at *1 (E.D. Mo. Apr. 12, 2010); Kujawski v. Solis, No. 07-cv-330, 2009 WL 1 0 3 3 3 1 5 , at *2 (S.D. Ill. Apr. 17, 2009) (citing CutCo Indus., Inc. v. Naughton, 806 F.2d 3 6 1 , 364 (2d Cir. 1986)); see also Local Rule 7.1(f) ("The court may dispose of a motion w ith o u t oral argument."). I further note that plaintiffs' hearing request asks to "discuss th e step-by-step procedural details of specific State and Federal programs so that the C o u rt can make an independent fact-based due process assessment," Mot. at 2 (emphasis su p p lied ), instead of testing the sufficiency of the allegations in plaintiffs' complaint, w h i c h is this court's task in deciding defendants' Rule 12(b)(6) motions. 6