DEAN v. CVS PHARMACY, INC. et al

Filing 50

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 5/26/15. 5/27/15 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEITH ROBERT DEAN, JR.,
ON BEHALF OF HIMSELF AND ALL
OTHERS SIMILARLY SITUATED,

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Plaintiffs,
v.
CVS PHARMECY, INC., et. al,
Defendants.

CIVIL ACTION

No. 14-2136

MEMORANDUM ORDER
This 26th day of May, 2015, upon consideration of Defendants’ Motion for
Reconsideration of the Court’s January 14, 2015 Order, and Plaintiffs’ opposition thereto, and
based on the controlling standard that reconsideration should only be granted in extraordinary
circumstances, 1 it is hereby ORDERED that Defendants’ Motion is DENIED for the following
reasons.
Defendants have moved for reconsideration of this Court’s January 14, 2015 Order,
alleging a clear error of law. Defendants’ argument is premised on the underlying assumption
that their original Motion to Dismiss for Lack of Subject Matter Jurisdiction was denied solely
based on this Court’s determination that fact-finding was required in order to evaluate whether
Defendants’ Rule 68 Offer provided complete relief to Dean. However, Defendants’ Motion was
denied for several reasons.

1

The Third Circuit has held that the “scope of a motion for reconsideration . . . is extremely limited. Such motions
are not to be used as an opportunity to relitigate the case; rather, they may be used only to correct manifest errors of
law or fact or to present newly discovered evidence.” Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011).

1

As discussed during the colloquy at oral argument, the active controversy between the
parties regarding the sufficiency of Defendants’ Rule 68 Offer precludes me from dismissing this
case for lack of subject matter jurisdiction. See, e.g., Chafin v. Chafin, 133 S. Ct. 1017, 1023
(2013) (“As long as the parties have a concrete interest, however small, in the outcome of the
litigation, the case is not moot.”); ABN Amro Verzekeringen BV v. Geologistics Americas, Inc.,
485 F.3d 85, 94 (2d Cir. 2007) (“Mootness, in the constitutional sense, occurs when the parties
have no ‘legally cognizable interest’ or practical ‘personal stake’ in the dispute, and the court is
therefore incapable of granting a judgment that will affect the legal rights as between the
parties.”).
Plaintiffs’ position that the Rule 68 Offer does not provide complete relief to Dean is
enough to give rise to an active controversy, as this Court would necessarily have to exercise
jurisdiction in order to determine which parties’ proffered interpretation of Pennsylvania law
prevails. See Payne v. Progressive Fin. Servs., Inc., 748 F.3d 605, 607 (5th Cir. 2014) (“When a
defendant does not offer the full relief requested, the plaintiff maintains a personal stake in the
outcome of the action, the court is capable of granting effectual relief outside the terms of the
offer, and a live controversy remains.”); Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564,
567 (6th Cir. 2013) (“An offer limited to the relief the defendant believes is appropriate does not
suffice. The question is whether the defendant is willing to meet the plaintiff on his terms.”);
Gates v. Towery, 430 F.3d 429, 432 (7th Cir. 2005) (“To eliminate the controversy and make a
suit moot, the defendant must satisfy the plaintiffs' demands; only then does no dispute remain
between the parties.”); Zinni v. ER Solutions, Inc., 692 F.3d 1162, 1167–68 (11th Cir. 2012)
(“Because the settlement offers were not for the full relief requested, a live controversy remained
over the issue of a judgment, and the cases were not moot.”).

2

Because the existence of an active controversy regarding the sufficiency of the Rule 68
Offer, by itself, defeats any argument that this Court lacks subject matter jurisdiction, there is no
reason for this federal District Court to decide an issue of first impression under Pennsylvania
law at this preliminary stage of the litigation. Although Defendants might ultimately prevail
regarding the proper legal interpretation of the Pennsylvania Wage Payment and Collection Law
(“WPCL”), their “prospects of success are . . . not pertinent to the mootness inquiry.” Chafin,
133 S. Ct. at 1024.
As in Chafin, Defendants’ briefing “confuses mootness with whether [the plaintiff] has
established a right to recover . . . , a question which it is inappropriate to treat at this stage of the
litigation.” Id.; see also Kaye v. Amicus Mediation & Arbitration Grp., Inc., 300 F.R.D. 67, 75
(D. Conn. 2014), reconsideration denied, No. 13-347, 2014 WL 5092876 (D. Conn. Oct. 10,
2014) (“While defendants may well prevail in their view of the law, this dispute as to whether
multiple statutory damages awards can be recovered for a single fax's multiple TCPA violations
goes to the merits of plaintiffs' individual claims and the corresponding amount that would be
necessary to satisfy these claims.”). Stated differently, “[h]owever reasonable the Offer was or
proves to have been, the disparity between its terms and the individual recovery sought by
plaintiffs precludes a finding of mootness.” Id. (citing Hrivnak, 719 F.3d at 568); Anjum v. J.C.
Penney Co., No. 13-0460, 2014 WL 5090018, at *11 (E.D.N.Y. Oct. 9, 2014) (“the mere
existence of these issues and the consequent need for court adjudication of the maximum value
of each plaintiff's stake in the lawsuit forecloses the possibility that the Rule 68 offer
extinguished this controversy at the time J.C. Penney made the offer.”). Finally, as stated during
oral argument, I am not persuaded that the Third Circuit’s forthcoming decision in Weitzner will
control this case to the degree Defendants have suggested.

3

Accordingly, my Order denying Defendants’ Motion stands, subject to renewal, in the
event that any of the following specific circumstances arise:
a. The law in Pennsylvania evolves in a manner that moots the current controversy
between the parties regarding the correct legal interpretation of the WPCL;
b. Material facts surface during the course of discovery that might moot the
controversy surrounding the sufficiency of Defendants’ Rule 68 Offer regardless
of the parties’ differing interpretation of the WPCL; or
c. The state of the law in the Third Circuit changes materially in a way that could
impact my foregoing analysis.

/s/ Gerald Austin McHugh
United States District Court Judge

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