MIGLIORE v. ACKERMAN et al
MEMORANDUM. SIGNED BY HONORABLE JAN E. DUBOIS ON 6/17/2014. 6/17/2014 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD W. MIGLIORE, J.D.,
ROBERT L. ARCHIE, JR., ESQUIRE,
DENISE MCGREGOR ARMBRISTER;
JOSEPH A. DWORETZKY, ESQUIRE;
LUCY FERIA, Regional Superintendent;
JAMES DOUGLASS, Assistant Regional
ESTELLE G. MATTHEWS, Chief Talent
ANDREW ROSEN, ESQUIRE, Human
ARLENE ACKERMAN, Superintendent;
THE SCHOOL DISTRICT OF
THE SCHOOL REFORM COMMISSION;
MARY SANDRA DEAN, Principal;
June 17, 2014
This case involves the free-speech and due-process rights of a former public school
assistant principal, plaintiff Richard Migliore. Presently before the Court is Plaintiff’s Motion
for Judgment Pursuant to Federal Rule of Civil Procedure 54(b), which, for the reasons set forth
below, the Court construes as a Motion for Reconsideration of the Court’s Memorandum and
Order dated August 12, 2013. For the reasons that follow, Migliore’s Motion is denied.
The background of this case is set forth in detail in the Court’s Memorandum and Order
of August 12, 2013, denying plaintiff’s Motion for Summary Judgment and granting in part and
denying in part defendants’ joint Motion for Summary Judgment,1 see Migliore v. Ackerman,
No. 11-cv-4018, 2013 WL 4079650 (E.D. Pa. Aug. 12, 2013), and will be recited in this
Memorandum only as necessary to address the issues presented by Migliore’s instant Motion.
In September 2009, Migliore submitted his notice of retirement following a dispute over
whether he would be demoted from his position as an assistant principal. Following his notice of
retirement, the School Reform Commission (SRC) held multiple hearings regarding the
recommendation that Migliore be demoted from assistant principal. At the conclusion of the
hearings, Commissioner Dworetzky “found that Migliore was not constructively discharged . . . .
[and] recommended to the SRC that the SRC dismiss the matter without further hearing because
Migliore had not been demoted prior to his retirement and had not been constructively
discharged.” Defs.’ Stmt. of Undisputed Facts ¶ 107 (Document No. 20). By resolution dated
June 15, 2011, the SRC resolved that Migliore retired from the School District effective June 30,
2009, and adopted the findings of Commissioner Dworetzky.
Migliore then appealed that decision to the Secretary of Education. After conducting a de
novo review, the Secretary, by Order dated August 3, 2012, found that Migliore was not demoted
or constructively discharged, but rather that he had voluntarily retired. Thus, the Secretary
denied Migliore’s appeal. On August 29, 2012, Migliore appealed to the Pennsylvania
Commonwealth Court on several grounds, including whether Migliore’s due-process rights were
In that Memorandum and Order, the Court dismissed plaintiff’s due-process and
neglect-to-prevent claims, holding that “[t]he only claims remaining in the case are Migliore’s
First Amendment claims concerning his speeches and Book against all individual defendants in
their personal capacity.”
violated. While his state-court case was pending, Migliore filed suit on June 20, 2011 in this
Court against numerous defendants on the grounds that they retaliated against him in violation of
his free speech rights, denied him due process, and failed to prevent wrongful acts against him.
After the parties had filed cross-motions for summary judgment in this case, but prior to
the Court having ruled on those motions, defendants filed a Report on June 20, 2013, informing
the Court that “[e]arlier th[at] week, the Commonwealth Court of Pennsylvania [had] filed an
Order and an unreported opinion” in the state-court proceedings initiated by Migliore prior to the
commencement of this federal lawsuit. See Report at 1 (Doc. No. 26). The Commonwealth
Court held, in relevant part, that (1) Migliore was “demoted in fact,” but no state law violation
occurred because he voluntarily resigned before a hearing could be held, and (2) because
Migliore was offered a hearing prior to his resignation, and because a hearing was eventually
held, “Migliore was afforded due process.” See Migliore v. School District of Phila., No. 1663
C.D. 2012, 2013 WL 3156533, at *4-*7 (Commw. Pa. June 18, 2013).
In light of that development, this Court, by Order dated July 1, 2013, directed “that on or
before July 15, 2013, the parties, through counsel, . . . jointly report to the Court with respect to
(1) the status of the state court proceedings, including whether plaintiff has appealed or intends
to appeal the decision of the Commonwealth Court, and (2) what effect, if any, the decision of
the Commonwealth Court has on this case.” Thereafter, on July 15, 2013, the parties filed a
Joint Report, stating their respective positions. See Joint Report of All Parties in Resp. to the
Ct.’s Order Dated July 1, 2013 (Document No. 28). Defendants argued in the Joint Report that
the Court should give the Commonwealth Court’s decision preclusive effect under the doctrine
of issue preclusion. Migliore disagreed with this contention, asserting that the Commonwealth
Court’s decision was “not final due to Migliore’s pending request for reargument en banc,”2 and,
even should the decision become final, it “should [still] have no effect on the present case”
because (1) “the First Amendment retaliation claims in this case were not and are not part of the
Commonwealth case,” (2) the Commonwealth Court’s decision “directly conflicts with”
prevailing case law and is “constitutionally infirm,” and (3) in rendering its decision, “[t]he
Commonwealth Court intentionally restricted its view on . . . th[e] issue of constructive
discharge.” Id. at 2-4.
After considering the parties respective arguments, this Court, by Memorandum and
Order dated August 12, 2013, ruled against Migliore on this issue, holding that “[a]ll elements of
issue preclusion with respect to Migliore’s due process claims in this case ha[d] been satisfied,”
and “Migliore [was therefore] precluded from arguing in this action that his due process rights
were violated.” Thus, the Court, inter alia, granted defendants’ Motion for Summary Judgment
as to plaintiff’s due-process claims. On January 23, 2013, the Supreme Court of Pennsylvania
denied Migliore’s Petition for Allowance of Appeal in a per curium decision without reasoning.
On February 18, 2014, Migliore filed the instant Motion, seeking judgment on Migliore’s
due-process claims, which Migliore acknowledges “w[ere] ruled as precluded in this Court’s
Memorandum of August 12, 2013.” Pl.’s Mot. at 1. Migliore now argues that the
Commonwealth Court’s opinion not only should have preclusive effect, but should have
preclusive effect in his favor. In short, Migliore argues that the Court should credit the part of
the Commonwealth Court’s decision that held that Migliore “had, in fact from been demoted
from his position of assistant principal to that of teacher in July 2009,” but the Court should
disregard the remainder of the decision, in which the Commonwealth Court held that Migliore’s
The Commonwealth Court denied that request by Order dated July 29, 2014.
due-process rights had not been violated because a post-deprivation hearing was ultimately held.
At the outset, the Court must address which legal standard and procedural rule to apply to
Migliore’s Motion. Although styled as a “Motion for Judgment Pursuant to Federal Rule of
Civil Procedure 54(b),” Migliore’s Motion seeks reconsideration of the Court’s Memorandum
and Order dated August 12, 2013. It is well established that a party may not “avoid both the
filing deadlines of a motion for reconsideration and the legal requirements of such a motion by
disguising such a motion as an amended pleading or another motion.” State Farm Mut. Auto.
Ins. Co. v. Mallela, No. 00-cv-4923, 2002 WL 31946762, at *14 (E.D.N.Y. Nov. 21, 2002); see
also Favia v. Ind. Univ. of Pa., 7 F.3d 332, 338 (3d Cir. 1993) (noting that a court must “look
beyond [a] motion’s caption to its substance”). Thus, the Court will treat Migliore’s Motion as a
Motion for Reconsideration of the Court’s August 12, 2013 Memorandum and Order.
Moreover, Migliore incorrectly invokes Rule 54(b) as the legal authority in support of his
Motion. Although there is disagreement between circuits on this issue,3 the U.S. Court of
Appeals for the Third Circuit has held that “[m]otions for reconsideration do not arise under Rule
54(b).” Osei v. La Salle Univ., 493 F. App’x 292, 293 n.1 (3d Cir. 2012). Accordingly, the
Court properly construes Migliore’s motion as one “invoking the district court’s general
discretionary authority to review and revise interlocutory rulings prior to entry of final
judgment.” Pellicano v. Blue Cross Blue Shield Ass’n, 540 F. App’x 95, 97 n.2 (3d Cir. 2013).
Compare Osei v. La Salle Univ., 493 F. App’x 292, 293 n.1 (3d Cir. 2012) (“Motions
for reconsideration do not arise under Rule 54(b).”), with Moore v. Life Ins. Co. of N. Am., 278 F.
App’x 238, 239 n.3 (4th Cir. 2008) (“The proper vehicle for Moore to have raised a motion to
reconsider [an interlocutory order] was Rule 54(b) . . . .”); see also Foster III v. Westchester Fire
Ins. Co., No. 09-cv-1459, 2012 WL 2402895, at *4 n.1 (“There is considerable confusion about
which rule of civil procedure provides the basis for motions for reconsideration . . . .”).
Properly treated as a Motion for Reconsideration of the Court’s Memorandum and Order
dated August 12, 2013, plaintiff’s Motion is both untimely and without merit. With respect to
the former, Local Rule 7.1(g)4 requires motions for reconsideration to “be served and filed within
fourteen (14) days after the entry of the judgment, order, or decree concerned.”5 See United
States ex rel. Streck v. Allergan, Inc., 288 F.R.D. 88, 91 (E.D. Pa. 2012) (concluding that, where
the plaintiff’s “motion [was] properly treated as a motion for reconsideration,” “[p]laintiff’s
motion [was] time-barred [because he] did not file his motion within Local Rule 7.1’s fourteenday time-limit”). Migliore filed the instant Motion not fourteen days, but six months after the
Court issued the Memorandum and Order at issue. Thus, Migliore’s Motion is untimely unless
the Court departs from the Local Rules.
“[A] district court can depart from the strictures of its own local procedural rules where
(1) it has a sound rationale for doing so, and (2) so doing does not unfairly prejudice a party who
has relied on the local rule to his detriment.” United States v. Eleven Vehicles, Their Equip. &
Accessories, 200 F.3d 203, 215 (3d Cir. 2000). In this case, the Court concludes that there is no
sound rationale for department from Local Rule 7.1(g). The only rationale Migliore has to
Local Rule 7.1(g) has been recently amended, but the amendment does not implicate the
issues in this case. As amended, Local Rule 7.1(g) reads, “Motions for reconsideration or
reargument shall be served and filed within fourteen (14) days after the entry of the order
concerned, other than those governed by Federal Rule of Civil Procedure 59(e).”
The Court notes that, to the extent Migliore is arguing that the time limitations in Local
Rule 7.1(g) do not apply because of Rule 54(b)’s statement that an interlocutory order “may be
revised at any time before the entry of a judgment” (emphasis added), this argument is without
merit. See, e.g., Dudo v. Schaffer, 93 F.R.D. 524, 529 (E.D. Pa. 1982). It is well established that
this language in Rule 54(b) speaks only to a district court’s inherent authority to reconsider an
interlocutory order “at any time before the entry of a judgment,” not requirements otherwise
imposed on litigants who are requesting that the court do so. See, e.g., Church of Scientology
Int’l v. Time Warner, Inc., No. 92-cv-3024, 1997 WL 538912, at *4 (S.D.N.Y. Aug. 27, 1997);
Coulibaly v. J.P. Morgan Chase Bank, N.A., No. 10-cv-3517, 2011 WL 6837656, at *1-*2 (D.
Md. Dec. 28, 2011); Rispler v. Sol Spitz Co., No. 04-cv-1323, 2006 WL 3335056, at *1
(E.D.N.Y. Oct. 18, 2006).
explain this delay is that “the Commonwealth Court ruling [is] now subject to no possible further
appeal,” see letter to the Court dated February 18, 2014,6 and “[t]his Court, in its previous
opinion said that Migliore’s due process claim[s] should proceed through the appeal process,”
see Pl.’s Reply to Defs.’ Resp at 17. This reasoning is unpersuasive and mischaracterizes the
August 12, 2013 Memorandum and Order.
In the Memorandum and Order dated August 12, 2013, the Court expressly rejected
Migliore’s argument that the Court could not rule on the issue of preclusion during the pendency
of Migliore’s state-court proceedings and held that “[a] judgment is deemed final for purposes of
res judicata or collateral estoppel unless or until it is reversed on appeal.” Further, although the
Court stated that “[i]f the Commonwealth Court decision [was] overturned on appeal, this Court
w[ould] entertain a motion for reconsideration,” there has been no such development. Indeed,
what has transpired in the interim is precisely the opposite: the Commonwealth Court’s decision
has been affirmed.
Likewise, the Court rejects Migliore’s contention that reconsideration is appropriate at this
juncture because “[t]he parties had not submitted briefs on the preclusion issues prior to the
August 12, 2013 ruling.” See Letter to the Court dated February 18, 2014. That is untrue. As
Migliore himself concedes, prior to rendering the August 12, 2014 ruling, “the
Court . . . request[ed] the position of the parties as to whether there was any preclusive effect.”
Id. Migliore did so — providing, in the Joint Report, two pages of argument as to why the
Commonwealth Court’s decision should have no preclusive effect. Further, in that Joint Report,
Migliore expressly declined to join defendants’ request “to present a short brief to the Court on
A copy of this letter will be docketed by the Deputy Clerk.
these issues.” Joint Rep. at 5.7 Thus, the Court logically concluded that the two pages of
argument that Migliore included in the Joint Report fully set forth his position on the legal issue
of preclusion to the extent he wished to provide it.8
Finally, even assuming arguendo that Migliore’s Motion was timely filed, a motion for
reconsideration is not a proper basis for advancing new arguments inconsistent with those
previously taken, absent some compelling circumstance, such as an intervening change in law.
See, e.g., McNeal v. Maritank Phila., Inc., No. 97-cv-0890, 1999 WL 80268, *4 (E.D. Pa. Jan.
29, 1999) (“A motion for reconsideration may not be used to present a new legal theory for the
first time or to raise new arguments that could have been made in support of the original
motion.”). In this case, Migliore has not only raised new arguments, but he has raised new
arguments wholly inconsistent with his prior position that no part of the Commonwealth Court’s
decision should ever have any “effect on the present case.” These are not appropriate grounds
Because the Motion is untimely and the Court concludes that there are no grounds for the
Court to reconsider its Memorandum and Order dated August 12, 2013, Migliore’s Motion is
See Joint Report of All Parties in Resp. to the Ct.’s Order Dated July 1, 2013 at 5
(Document No. 28) (“Defendants’ request an opportunity to present a short brief to the Court on
these issues. . . . Plaintiff does not join in this request, but would submit a brief on these issues if
the court so desires.”). The Court did not deem it necessary to grant defendants’ request before
ruling in their favor, however, it certainly would have granted a like request by Migliore.
To the extent that Migliore is arguing that he did not understand that the Court would
reach the preclusion issue in ruling on the parties’ cross-motions for summary judgment, the
Court rejects this position. The Court necessarily could not grant summary judgment in favor of
Migliore with respect to his due-process claims without first deciding the preclusive effect, if
any, of the Commonwealth Court’s decision. Finally, if Migliore believed the Court erred in its
Memorandum and Order dated August 12, 2013, either in reaching or deciding any issue,
Migliore had the opportunity to move for reconsideration within the fourteen-day timeframe
provided by Local Rule 7.1(g), and he did not do so.
denied. An appropriate order follows.
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