BROADCAST MUSIC, INC. et al v. CROCODILE ROCK CORPORATION et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/12/14. 8/13/14 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BROADCAST MUSIC, INC., et al.,
CROCODILE ROCK CORPORATION,
MEMORANDUM AND ORDER
August 12, 2014
The procedural history of this case is set out in detail in the Court’s Memorandum dated
June 25, 2014. ECF 92. Defendants filed a Motion for Reconsideration and for Amendment of
Judgment, ECF 95, with regards to the Court’s Memorandum dated June 25, 2014, ECF 92, and
accompanying orders, ECF 93 and 94. For the reasons discussed below, the Motion is denied.
Motion for Reconsideration and Amendment of Judgment
Defendants do not indicate whether they are moving for reconsideration under Federal
Rule of Civil Procedure 59(e) or under 60(b).
Although motions for reconsideration under Federal Rules of Civil Procedure
59(e) and 60(b) serve similar functions, each has a particular purpose. Rule 60(b)
provides six bases for reconsideration, including mistake, inadvertence, surprise,
or excusable neglect . . . . A motion under Rule 59(e) is a device to relitigate the
original issue decided by the district court, and used to allege legal error.
United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003) (internal quotation marks and
citations omitted). The Court will treat the Motion as if the Defendants moved under both rules.
A court may grant a motion for consideration under Rule 59(e) if the moving party
shows: “(1) an intervening change in the controlling law; (2) the availability of new evidence
that was not available when the court issued its order; or (3) the need to correct a clear error of
law or fact or to prevent manifest injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Where the basis of the motion for reconsideration
is to correct a manifest injustice, the party must persuade the court not only that its prior decision
was wrong, “but that it was clearly wrong and that adherence to the decision would create a
manifest injustice.” In re City of Philadelphia Litig., 158 F.3d 711, 720-21 (3d. Cir. 1998).
Based on the content of Defendants’ Memorandum in support of its Motion, the Court will treat
the Motion as if it is based on grounds (2) and (3).
Under Federal Rule of Civil Procedure 60(b) a party may seek relief from a final
judgment, order, or proceeding for one of the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any other reason justifying
relief from the operation of the judgment.
Defendants do not indicate on what ground they base their Rule 60(b) motion. However,
based on the Motion’s reference to Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S.
380 (1993)—which discusses excusable neglect under Rule 60(b)—and Defendants’ submission
of new evidence, the Court will treat the Motion as if it is based on grounds (1) and (2).
The Court rejects Defendants arguments based on the new evidence attached as exhibits
to its Motion. As the Defendants concede, these documents were available when the court issued
its order. See Memo of Law in Support of Motion for Reconsideration and For Amendment of
Judgment, ECF 96 at 4 (“All the items referred to in this memo were available to prior counsel,
who did not even make an attempt to use them.”). These exhibits therefore are not proper
grounds for reconsideration under Rule 59(e) or Rule 60(b). See Blystone v. Horn, 664 F.3d 397,
415-16 (3d Cir. 2011) (“We have made clear that ‘new evidence,’ for reconsideration purposes,
does not refer to evidence that a party submits to the court after an adverse ruling. Rather, new
evidence in this context means evidence that a party could not earlier submit to the court because
that evidence was not previously available.”) (internal quotation marks and alterations omitted).
Accordingly, this new evidence will not be considered.
It appears that Defendants attached these exhibits to emphasize their arguments regarding
manifest injustice and excusable neglect, rather than to support a newly discovered evidence
ground. Their Motion contends that this evidence was available to their prior counsel and he
failed to present it to the Court. They contend further that this evidence shows that they have a
meritorious defense to Plaintiffs claims and that, according to the Supreme Court’s ruling in
Pioneer, “the sins of the lawyer should not be visited upon the client.,” ECF 95 at 4.
Pioneer clarified the standard for “excusable neglect” under Bankruptcy Rule 9006(b)(1).
507 U.S. at 388-97. Although Pioneer involved a bankruptcy rule, that opinion drew a close
analogy to Federal Rule of Civil Procedure 60(b). The Third Circuit has held that Pioneer’s
construction apples in the Rule 60(b) context. George Harms Const. Co. v. Chao, 371 F.3d 156,
163 (3d Cir. 2004).
Pioneer, however, does not aid Defendants’ cause. Although Defendants attempt to
conflate Pioneer’s discussion of excusable neglect with the “professional neglect” allegedly
committed by Defendants’ prior counsel, see ECF 96, Pioneer does not excuse Defendants from
the consequences of their prior counsel’s alleged actions. See 507 U.S. at 396 (“[W]e have held
that clients must be held accountable for the acts and omissions of their attorneys.”); id. (noting
that there is “no merit to the contention that dismissal of petitioner’s claim because of his
counsel’s unexcused conduct imposes an unjust penalty on the client” (quoting Link v. Wabash
R. Co., 370 U.S. 626 at 633-34)). Pioneer expressly observed that the petitioner
voluntarily chose this attorney as his representative in the action, and he cannot
now avoid the consequences of the acts or ommissions of this freely selected
agent. Any other notion would be wholly inconsistent with our system of
representative litigation, in which each party is deemed bound by the acts of his
lawyer-agent and is considered to have notice of all facts, notice of which can be
charged upon the attorney.
Id. at 397 (internal quotation marks and citations omitted).
Accordingly, in so far as Defendants regard Pioneer as a shield for clients against the
actions of their counsel, they are mistaken.
Perhaps even more importantly, Defendants assert that their prior counsel was entirely to
blame for the handling of their case, but their Motion supports this assertion by claiming that
prior counsel should have presented and argued the exhibits attached to the Motion. By contrast,
at a hearing held on May 30, 2014, Defendants’ prior counsel stated on the record that he sought
to withdraw from representing Defendants because they would not respond to his repeated
requests to discuss the case, failed to pay for his services, and were otherwise uncooperative. At
that same hearing, Defendant Joseph Clark testified that he never had time to reach out to prior
counsel about disagreements about representation. He also testified that he never received notice
of the complaint. Yet, when presented with the proof of service with his signature, Defendant
Joseph Clark stated that it either was not his signature or that he did not remember signing it
because, in Defendant Joseph Clark’s own words, “I sign stuff without looking at it. I do, I’m
very busy.” ECF 81 at 15. It was on this and similar testimony that prompted the Court to
permit Defendants’ prior counsel to withdraw from the case. ECF 78. The conduct of
Defendants’ prior counsel, as evidenced in the record, does not support a claim for manifest
injustice or excusable neglect.
Defendants have failed to produce any new evidence that was not available at the time
the Court filed its Memorandum and orders. ECF 92, 93, 94. Defendants have also failed to
demonstrate that the conduct of their prior counsel in any way relates to Defendants suffering a
manifest injustice. Accordingly, Defendants Motion is DENIED.
BY THE COURT:
/s/ Michael M. Baylson
MICHAEL M. BAYLSON, U.S.D.J.
O:\CIVIL 12\12-4945 broadcast v. crocodile\Memo and Order re Mot for Recon 8.12.docx
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