UNITED STATES OF AMERICA v. ALLGYER

Filing 30

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 12/20/12. 12/21/12 ENTERED AND COPIES MAILED TO PRO SE DEFENDANTS, EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Plaintiff
v.
DANIEL L. ALLGYER.
Defendant

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CIVIL ACTION

No. 11-02651

MEMORANDUM
Stengel, J

December 20, 2012

Defendant, Daniel Allgyer, brings this motion for reconsideration of my February
3, 2012, Memorandum and Order. Because I write primarily for the parties, I need only
recite the facts necessary for this discussion.
I.

Background

On April 19, 2011, the United States brought this action on behalf of the Food and
Drug Administration (“FDA”) under the Public Health Services Act (“PHSA”), 42
U.S.C. §§ 2641 and 271,2 and the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§

1

The relevant language of § 264 states:
(a) Promulgation and enforcement by Surgeon General. The Surgeon General, with the approval
of the Administrator [Secretary], is authorized to make and enforce such regulations as in his
judgment are necessary to prevent the introduction, transmission, or spread of communicable
diseases from foreign countries into the States or possessions, or from one State or possession into
any other State or possession. For purposes of carrying out and enforcing such regulations, the
Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest
extermination, destruction of animals or articles found to be so infected or contaminated as to be
sources of dangerous infection to human beings, and other measures, as in his judgment may be
necessary.

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§ 271 of the PHSA concerns appropriate penalties for any violation of the quarantine laws.

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331(a),3 343(e)(1) and (i)(1),4 against Mr. Allgyer for the unlawful sale of unpasteurized
(“raw”) milk across state lines.5 On February 3, 2012, I granted the United States Motion

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§ 331 state that “[t]he following acts and the causing thereof are hereby prohibited: (a) [t]he introduction or
delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is
adulterated or misbranded.”
4

21 U.S.C. § 343(e)(1) and (i)(1) states that:
(e) … If in package form unless it bears a label containing (1) the name and place of business of
the manufacturer, packer, or distributor; and (2) an accurate statement of the quantity of the
contents in terms of weight, measure, or numerical count ….
(i) … Unless its label bears (1) the common or usual name of the food, if any there be, and (2) in
case it is fabricated from two or more ingredients, the common or usual name of each such
ingredient and if the food purports to be a beverage containing vegetable or fruit juice, a statement
with appropriate prominence on the information panel of the total percentage of such fruit or
vegetable juice contained in the food; except that spices, flavorings, and colors not required to be
certified under section 721(c) [21 USCS § 379e(c)][,] unless sold as spices, flavorings, or such
colors, may be designated as spices, flavorings, and colorings without naming each. To the extent
that compliance with the requirements of clause (2) of this paragraph is impracticable, or results in
deception or unfair competition, exemptions shall be established by regulations promulgated by
the Secretary

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Specifically, the United States alleged Mr. Allgyer engaged in, the milking, packaging, labeling, selling, and
distributing of unpasteurized cow milk in interstate commerce for human consumption in violation of the PHSA and
FDCA.

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for Summary Judgment and issued a permanent injunction against Mr. Allgyer.6 On
March 13, 2012, Mr. Allgyer filed a Motion for Reconsideration of Order of Permanent
Injunction (Doc. No. 28), to which the United States responded on April 2, 2012 (Doc.
No. 29). For the reasons stated below, I will deny the motion for reconsideration.
II.

Standard

The purpose of a motion for reconsideration is to correct manifest errors of law or
fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985). Generally, a motion for reconsideration will only be granted on one
of the following three grounds: (1) if there has been an intervening change in controlling
law; (2) if new evidence, which was not previously available, has become available; or
(3) if it is necessary to correct a clear error of law or to prevent manifest injustice. See,
Max’s Seafood Café by Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
6

The Order stated in relevant part:
…Upon entry of this Order, Defendant, any company or assumed name through which Defendant
operates, and each and all his directors, officers, agents, representatives, employees, attorneys,
successors, assigns, and any and all persons in active concert or participation with any of them
who receive notice of this Order are permanently restrained and enjoined from directly and/or
indirectly doing or causing to be done any act that: … Violates 42 U.S.C. § 264(a) … Violates 21
U.S.C. § 331(a) …. Upon entry of this Order, Defendant shall continuously display the statement:
Daniel L. Allgyer … and/or any other entity … through which Daniel L. Allgyer operates … will
no longer introduce or deliver for introduction, or cause to be introduced and delivered for
introduction, into interstate commerce, any unpasteurized milk or unpasteurized milk products….
Defendant shall maintain complete records of the sale and distribution of all his unpasteurized
milk and unpasteurized milk products …. Defendant shall also maintain at least one copy of the
following documentation with respect to his unpasteurized milk and unpasteurized milk products:
a. All label(s) affixed to the products; b. All labeling affixed to shipping containers; and c. All
labeling, brochures, website pages, and other materials used to promote, describe, or refer to the
products. Upon request, FDA shall have immediate access to all of the records described in this
paragraph…. [The] FDA may, as and when it deems necessary, inform Defendant, in writing, of
his noncompliance and require Defendant to take immediate action… Defendant shall
immediately and fully comply with its terms…. If Defendant violates this Order and is found in
civil or criminal contempt thereof, Defendant shall, in addition to other remedies, reimburse
Plaintiff….

(Doc. No. 27).
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A court may not grant a motion for reconsideration when the motion simply
restyles or rehashes issues previously presented. Pahler v. City of Wilkes Barre, 207 F.
Supp. 2d 341, 355 (M.D. Pa. 2001). A motion for reconsideration “addresses only factual
and legal matters that the Court may have overlooked . . . . It is improper on a motion for
reconsideration to ask the Court to rethink what [it] had already thought through rightly
or wrongly.” Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D.
Pa. 1993) (internal citation and quotes omitted). Because federal courts have a strong
interest in the finality of judgments, motions for reconsideration should be granted
sparingly. Rossi v. Schlarbaum, 600 F. Supp. 2d 650, 670 (E.D. Pa. 2009).
III.

Discussion

Mr. Allgyer argues the Injunction Order lacks clarity because it refers to
Defendant, his business, and other entities through which he operates thereby violating
his Constitutional Rights (Doc. No. 28 at 1). He contends the injunction is moot because
Defendant has stated that he will voluntarily terminate all public sales (Doc. No. 28 at 12), but that he is operating in the “private domain” and his actions within that domain are
not subject to regulation (Doc. No. 28 at 2-6, 13). Because the injunction subjects him to
sanctions, he argues this a quasi-criminal matter, and criminal procedures with enhanced
protections are necessary (Doc. No. 28 at 6-9). Mr. Allgyer goes on to argue that various
government employees failed to take or file their oath of office (Doc. No. 28 at 9-11) and
the FDA’s actions, including failing to answer “Privacy Act Questions” and conducting
administrative inspections, were unconstitutional (Doc. No. 28 at 11-12).

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The United States contends that the motion should be denied as it is untimely,
under Rules 59, 60 and Local Rule 7.1.7 The United States argues the motion improperly
raises arguments that were, or could have been, raised in response to Plaintiff’s Motion
for Summary Judgment,8 and even considered on the merits, the motion should be denied
because Mr. Allgyer does not demonstrate an intervening change in law, newly
discovered evidence, or the need to correct an error of fact or law to prevent manifest
injustice.
The majority of Mr. Allgyer’s arguments in his motion for reconsideration were
argued previously in his response to the United States motion for summary judgment. “A
motion to reconsider judgment is not a ‘means to reargue matters already argued and
disposed of or as an attempt to relitigate a point of disagreement between the Court and
the litigant.” Ponisciak v. Astrue, 2012 WL 850099, at *1 (E.D. Pa. March 14, 2012)
(quoting Ogden v. Keystone Residence, 226 F. Supp.2d 588, 606 (M.D. Pa 2002)).

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It is unclear under which Rule Defendant brings this motion for Reconsideration, but the United States argues that
under both Local Rule 7.1 and Rule 59, the motion is time barred. A motion under Rule 59(e), which contends that
the court committed legal error “must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P.
59(e). In this case, the Defendant filed the motion on March 14, 2012, forty (40) days after the deadline. Further,
the Local Rules require that motions for reconsideration “be served and filed within fourteen (14) days after the
entry of the judgment, order, or decree concerned.” L. R. Civ. P. 7.1(g).
Although the United States contends that the motion is properly considered under either of the above Rules, because
Mr. Allgyer is proceeding pro se, I will not simply find his motion time barred, but instead, examine the merits of
his arguments under Rule 60(b). The motion would be timely under Rule 60 because they “must be filed within a
reasonable time.”
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Specifically, the argument that the Order lacks clarity could have been raised in Defendant’s response to the
motion for summary judgment because the Government attached a proposed order to the motion. Additionally, the
argument that the injunction is unnecessary because Defendant has stated that he will voluntarily terminate all
“public sales” could have been addressed well before the summary judgment stage. However, given that the
reasoning below Defendant’s argument suggests that he is unwilling to terminate those sales he deems “private,” this
argument was also raised in Defendant’s response to the motion for summary judgment.

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Additionally, Mr. Allgyer’s motion fails to make any of the requirements of a 60(b)
motion.
Defendant makes no claim of any intervening change in the law nor does he cite or
allude to any change in the law. Additionally, Mr. Allgyer has not presented new
evidence for reconsideration purposes. See, e.g., Howard Hess Dental Labs. v. Dentsply
Intern’l., Inc., 602 F.3d 237, 251-52 (3d Cir. 2010) (“‘new evidence,’ . . . means evidence
that a party could not earlier submit to the court because that evidence was not previously
available.”)
Defendant merely argues that the Court committed legal error in the Order of
permanent injunction and reconsideration is required to prevent manifest injustice.9 With
regard to Mr. Allgyer’s arguments previously raised in his response to Plaintiff’s motion
for summary judgment, I refer the parties to my ruling issued on February 3, 2012 (Doc.
No. 26 at 9-11).10
As to the Defendant’s newly raised argument, an injunction binds the parties, their
officers, agents, servants, employees, and attorneys, and other persons who are in active
concert or participation with anyone described in Rule 65(d)(2)(A) or (B) as long as those
individuals “receive actual notice of it by personal service or otherwise[.]” Fed. R. Civ.
P. 65(d)(2). Additionally, Fed. R. Civ. P. 65 provides that an injunction covers affiliated
individuals and entities, regardless of whether those individuals are named in the Order
9

Legally, a Rule 60(b) motion may not be used to address “legal error, without more[.]” Smith v. Evans, 853 F.2d
155, 158 (3d Cir. 1988)). However, I will consider the merits of Defendant’s arguments.
10

In that memorandum, I address Mr. Allgyer’s arguments concerning (1) the “private domain” argument; (2)
whether this is a quasi-criminal matter warranting extra protections; (3) the oaths of office; (4) whether the FDA’s
actions were constitutional, including its alleged failure to answer “Privacy Act Questions.”
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itself. See Marshak v. Treadwell, 595 F.3d 478, 486-87 (3d Cir. 2009) (holding that the
permanent injunction was not only enforceable against the parties to the original
proceeding, but against those companies and employees connected to the defendant that
had notice and continued the prohibited action after the issuance of the injunction);
Jackson v. Gordon, 474 Fed. Appx. 852, 853-854 (3d Cir. 2012) (finding that Fed. R.
Civ. P. 65(d)(2) provides that injunctions bind both named parties and those related to
them in certain respects, such as their officers and agents and those in privity); Jackson
Hewitt Inc. v. SEMO Tax Servs., Inc., 2012 U.S. Dist. LEXIS 9463 (D.N.J. Jan. 26,
2012) (same).
Defendant primarily reargues those issues raised in his motion in opposition to the
motion for summary judgment. Those arguments that are newly raised do not satisfy the
requirements of a motion for reconsideration. Therefore, Defendant’s motion is denied.
IV.

Conclusion

For the reasons discussed above, I will deny the Defendant’s motion for
reconsideration.
An appropriate Order follows.

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