Kohn et al v. School Distrit of the City of Harrisburg et al

Filing 169

MEMORANDUM AND ORDER - AND NOW, this 31st day of October, 2012, it is ORDERED that the mtn. 145 for reconsideration filed by third-party defts., James E. Ellison, Esq., and Rhoads & Sinon, is DENIED. 141 (See memo for complete details.) Signed by Honorable William W. Caldwell on 10/31/12. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERALD KOHN, et al.,
Plaintiffs
v.
SCHOOL DISTRICT OF THE CITY
OF HARRISBURG, et al.,
Defendants
v.
LINDA THOMPSON, et al.,
Third-party Defendants

:
:
:
: CIVIL NO. 1:11-CV-109
:
:
:
:
:
:
:
:
:

MEMORANDUM

I.

Introduction
By memorandum and order, dated August 16, 2012, we denied the motion

for judgment on the pleadings filed by third-party defendants, James E. Ellison, Esq., and
Rhoads & Sinon, the law firm where he practices. Kohn v. Sch. Dist. of the City of
Harrisburg, 2012 WL 3560822 (M.D. Pa.). The motion sought dismissal of the third-party
complaint filed against them by the defendant, Harrisburg School District. We are
considering Ellison’s and Rhoads & Sinon’s motion for reconsideration of that order. The
issue presented is whether in a 42 U.S.C. § 1983 action defendants can make a claim for
contribution. In our August 16 memorandum, we decided that defendants could. That
memorandum provides sufficient background, so we deal here solely with the third-party
defendants’ arguments on reconsideration.

II.

Standard of Review
The August 16 order was interlocutory because, having denied the third-

party defendants’ motion for judgment on the pleadings, it contemplated further
proceedings in this court. See Aluminum Co. of America v. Beazer East, Inc., 124 F.3d
551, 557 (3d Cir. 1997); In re Anthanassious, 418 F. App’x 91, 95 (3d Cir. 2011)
(nonprecedential) (bankruptcy court order granting an extension of time to file objections
was interlocutory because the court still had to grant or deny the objections); M.K. v.
Tenet, 196 F. Supp. 2d 8, 12 (D. D.C. 2001).
Since it was an interlocutory order, the court may revise it “when consonant
with justice to do so.” United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973); In re
Anthanassious, supra, 418 F. App’x at 95 (quoting Jerry). More specifically, a trial court
may revise an interlocutory order if that order “might lead to an unjust result.”
Anthanassious, supra, 418 F. App’x at 95 (quoted case omitted).
Thus the order is not subject to the stricter standard employed for a
challenge under F. R. Civ. P. 59(e) to a final order, In re Anthanassious, 418 F. App’x 91,
96 n.5 (3d Cir. 2011)(nonprecedential), as the parties think.1 Rule 59(e) covers only final

1

As the parties recognize, the Rule 59(e) standard deals in part with whether the court
committed “manifest errors of law,” North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d
1194, 1218 (3d Cir. 1995). Also, the moving party may not present new arguments on a Rule
59(e) motion. Blanchard v. Gallick, No. 09–1875, 2011 WL 1878226, at *1 (M.D. Pa. May 17,
2011)(Caldwell, J.)(citing Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa.
2002)). In contrast, on a motion to reconsider an interlocutory order, we exercise broad
discretion in deciding whether to reverse that order.
We note that the third-party defendants assert that in our August 16 memorandum, we
sua sponte considered whether 42 U.S.C. § 1988(a) permitted a contribution claim. They are
-2-

judgments or orders. As Rule 59(e) states: “A motion to alter or amend a judgment must
be filed no later than 28 days after the entry of the judgment,” with “Judgment” being
defined as “includ[ing] a decree and any order from which an appeal lies.” Fed. R. Civ. P.
54(a). An appeal did not lie from the August 16 order because it adjudicated fewer than
all the claims by all the parties. As F. R. Civ. P. 54(b) states:
Judgment on Multiple Claims or Involving Multiple
Parties. When an action presents more than one claim for
relief — whether as a claim, counterclaim, crossclaim, or
third-party claim — or when multiple parties are involved, the
court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay. Otherwise,
any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties does not end the action as to any
of the claims or parties and may be revised at any time before
the entry of a judgment adjudicating all the claims and all the
parties' rights and liabilities.
Fed. R. Civ. P. 54(b)(emphasis added). With this understanding of our standard of
review, we examine the third-party defendants’ motion. That motion is cognizable as a
motion for reconsideration under Local Rule 7.10.

mistaken. The argument that section 1988(a) did not permit such a claim was made in their
brief in support of their motion for judgment on the pleadings when they argued that a
contribution claim was inconsistent with the deterrence goal of section 1983. (Doc. 126 at pp.
5 and 7, citing Crews v. County of Nausau, 612 F. Supp. 2d 199, 209-10, 212 (E.D.N.Y.
2009)). In fact, the third-party defendants stated that they were conducting a section 1988(a)
analysis in their brief, although they believed such an analysis was not necessary. (Id. at p. 4
n.2). Nonetheless, it is immaterial to our scope of review that the third-party defendants are
presenting new arguments in support of their section 1988(a) analysis.
-3-

III.

Discussion
In our August 16 memorandum, we decided that the defendant School

District could pursue its contribution claim by reasoning as follows. Section 1983 creates
no statutory right to contribution, either express or implied, Kohn, supra, 2012 WL
3560822, at *2 n.5, and there is no federal common-law right to contribution. Id. at *5.
However, 42 U.S.C. § 1988(a) authorizes us to borrow Pennsylvania state law on
contribution found in The Uniform Contribution Among Tort-feasors Act, 42 Pa. Con. Stat.
§§ 8321–8327 (West 2007). In conformity with section 1988's requirement that any
borrowed state law not be inconsistent with federal law, we decided that Pennsylvania
law was not inconsistent with federal law, more specifically, that state law did not conflict
with section 1983's goal of deterring unconstitutional conduct. Id. at 6. We also decided
that allowing contribution served the other goal of section 1983, compensation of the
victim. Id.
The third-party defendants say that our reliance on section 1988(a) was
mistaken. They take the position that section 1988(a) may only be invoked “‘for the
protection’ of the victims of civil-rights violations.” (Doc. 146, Supp’n Br. at p. 4). Thus it
could not be used to assist a civil-rights defendant in making a claim for contribution. In
support of this position, the third-party defendants make three arguments.
First, they quote the statutory language itself, in pertinent part, with
emphasis on two portions:

-4-

(a) Applicability of statutory and common law
The jurisdiction in civil and criminal matters conferred on the
district courts by the provisions of titles 13, 24, and 70 of the
Revised Statutes for the protection of all persons in the United
States in their civil rights, and for their vindication, shall be
exercised and enforced in conformity with the laws of the
United States, so far as such laws are suitable to carry the
same into effect; but in all cases where they are not adapted
to the object, or are deficient in the provisions necessary to
furnish suitable remedies and punish offenses against law, the
common law, as modified and changed by the constitution
and statutes of the State wherein the court having jurisdiction
of such civil or criminal cause is held, so far as the same is
not inconsistent with the Constitution and laws of the United
States, shall be extended to and govern the said courts in the
trial and disposition of the cause . . . .
42 U.S.C.A. § 1988(a)(emphasis added by third-party defendants). Based on the
language referring to the “protection of all persons . . . in their civil rights,” the third-party
defendants argue that section 1988(a) is limited to benefitting civil-rights plaintiffs. In
support of this statutory interpretation, they cite Wright v. Reynolds, 703 F. Supp. 583
(N.D. Tex. 1988), where the court concluded that the statutory language indicates that
1988(a) is only intended to benefit a civil-rights plaintiff, and cannot be used by a civilrights defendant to borrow state law.
Second, they argue the legislative history supports this interpretation of
section 1988(a), citing Koch v. Mirza, 869 F. Supp. 1031 (W.D.N.Y. 1993). Third, they
cite three cases, Uboh v. Reno, 141 F.3d 1000 (11th Cir. 1998); Hall v. Wooten, 506 F.2d
564 (6th Cir. 1974); and Smith v. Wickline, 396 F. Supp. 555 (W.D. Okla. 1975), that
supposedly show the proper use of section 1988(a), to “advance[ ] directly the goals of

-5-

Section 1983 –- usually by expanding the reach of the civil-rights laws for the benefit of
the plaintiffs.” (Doc. 146, Supp’n Br. at p. 5).
We reject the first argument. The statutory language by itself gives no
indication that section 1988(a) can only be used for a plaintiff’s benefit. The phrase “for
the protection of all persons in the United States in their civil rights, and for their
vindication” is simply a description of “the provisions of titles 13, 24, and 70 of the
Revised Statutes” that section 1988(a) applies to.
As the third-party defendants note, Wright, supra, does interpret section
1988(a)’s language as limiting its scope to civil-rights plaintiffs. As the court stated there:
“However, of paramount importance with regard to a defendant’s alleged rights to
contribution and indemnification is the fact that Congress, through section 1988, only
allowed courts to fashion a remedy ‘for the protection of all persons in the United States
in their civil rights, and for their vindication’ of those rights.” Id. at 592 (emphasis in
original). We respectfully disagree with Wright’s interpretation of the statutory language.
In our view, there is nothing in that language supporting the limiting gloss Wright imposes
on section 1988(a).
In regard to legislative history, Koch delved into the legislative histories of
the Civil Rights Act of 1866 and the Civil Rights Act of 1871 in deciding that section 1988

-6-

should not be used to borrow state law to allow contribution in a section 1983 action.2 As
the third-party defendants quote from Koch:
The historic debates in Congress on both statutes make
quite clear that their primary objectives were to establish and
protect federal civil rights and thereby remove from the legal
system the discrimination created by slavery and its incidents.
Senator Trumbull, Chairman of the Senate Judiciary
Committee, in discussing the 1866 Act prior to its passage,
stated, “the purpose of the bill under consideration is to
destroy all these discriminations, and to carry into effect the
constitutional [Article XIII] amendment.” Cong. Globe, 39th
Cong., 1st Sess. 474 (1866). Referring to the clause
authorizing the use of state law, which now appears in § 1988,
Senator Trumbull stated, “[t]he other provisions of the bill
contain the necessary machinery to give effect to what are
declared to be the rights of all persons in the first section.” Id.
(emphasis added).
(Doc. 146, Supp’n Br. at p. 4 (quoting Koch, supra, 869 F. Supp. at 1041). From this
passage, the third-party defendants conclude that the legislative history indicates that
“Congress intended Section 1988(a) to strengthen the remedies available to those
claiming violations of their civil rights – not of those alleged to have violated those rights.”
(Doc. 146, Supp’n Br. at p. 4 n.1).
We reject this reliance on legislative history for two reasons. First, the
legislative history makes the unremarkable assertion that section 1988 was intended to
effectuate substantive civil rights; in the quoted passage, the rights conferred in the 1866
Act. But the quoted legislative history does not say that is the only goal of section 1988.

2

Legislative history is not the only support Koch had for declining to find a right to
contribution in section 1983 actions, but the one the third-party defendants focus on. Koch
used the legislative history to make a larger point.
-7-

Second, in any event, the Supreme Court has interpreted section 1998(a) as requiring “a
three-step process,” and that process simply tracks the operative language of the statute
itself. It imposes no requirement that the state law being borrowed must benefit the civilrights plaintiff. That three-step process is:
First, courts are to look to the laws of the United States “so far
as such laws are suitable to carry [the civil and criminal civil
rights statutes] into effect.” Ibid. If no suitable federal rule
exists, courts undertake the second step by considering
application of state “common law, as modified and changed
by the constitution and statutes” of the forum State. Ibid. A
third step asserts the predominance of the federal interest:
courts are to apply state law only if it is not “inconsistent with
the Constitution and laws of the United States.” Ibid.
Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928, 82 L.Ed.2d 36 (1984). See
also Fontroy v. Owens, 150 F.3d 239, 242-43 (3d Cir. 1998)(quoting Burnett).
That section 1988(a) is not limited to borrowing state laws that benefit a
civil-rights plaintiff is reinforced by Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991,
56 L.Ed.2d 554 (1978). In that case, the Supreme Court borrowed a state law on the
survival of actions that had the effect of terminating the plaintiff’s section 1983 action after
he died before trial. In its opinion, the Court made the following observation:
It is true that § 1983 provides “a uniquely federal remedy
against incursions under the claimed authority of state law
upon rights secured by the Constitution and laws of the
Nation.” Mitchum v. Foster, supra, 407 U.S., at 239, 92 S.Ct.,
at 2160. That a federal remedy should be available, however,
does not mean that a § 1983 plaintiff (or his representative)
must be allowed to continue an action in disregard of the state
law to which § 1988 refers us. A state statute cannot be
considered “inconsistent” with federal law merely because the
statute causes the plaintiff to lose the litigation. If success of
-8-

the § 1983 action were the only benchmark, there would be
no reason at all to look to state law, for the appropriate rule
would then always be the one favoring the plaintiff, and its
source would be essentially irrelevant. But § 1988 quite
clearly instructs us to refer to state statutes; it does not say
that state law is to be accepted or rejected based solely on
which side is advantaged thereby.
Id. at 593, 98 S.Ct. at 1996-97. In Robertson, the state law did not benefit the plaintiff;
indeed it abated his action, yet the Supreme Court still applied it.
We therefore conclude that the mere fact that a state law does not benefit a
civil-rights plaintiff does not prohibit the use of section 1988(a) in a civil-rights claim.3 We
turn now to the third-party defendants’ remaining argument for reconsideration, that we
erred in deciding: (1) that allowing contribution does not conflict with section 1983's goal
of deterring unconstitutional conduct; and (2) that contribution actually serves section
1983's other goal, compensation of victims of civil-rights violations. Kohn, supra, 2012
WL 3560822, at *6 and n.13.
We deal first with the argument concerning deterrence. On this issue, the
third-party defendants first argue that we were mistaken in not agreeing with the majority
of courts that have decided that allowing contribution conflicts with the goal of deterrence.
These courts reason that if civil-rights violators know that they can use a contribution
claim to shift to others some of the damage they may cause, they may not refrain from

3

As noted above, the third-party defendants made a third argument relying on Uboh v.
Reno, 141 F.3d 1000 (11th Cir. 1998); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); and Smith
v. Wickline, 396 F. Supp. 555 (W.D. Okla. 1975), that the proper use of section 1988(a) is to
advance directly the goals of Section 1983. Based on our analysis above, we reject this
argument. We have also reviewed the cited cases and conclude they do not support the thirdparty defendants’ argument.
-9-

committing the unconstitutional conduct. See Crews v. County of Nausau, 612 F. Supp.
2d 199, 212 (E.D.N.Y. 2009); Mason v. City of New York, 949 F. Supp. 1068, 1079
(S.D.N.Y. 1996).
We rejected this reasoning because we thought that “deterrence is served
as long as the violators are aware that they may be liable in damages, even if they may
lessen the impact by obtaining contribution from another party.” Kohn, 2012 WL
3560822, at *6. In the third-party defendants’ view, this means we decided that
borrowing state law on contribution was proper under section 1988(a) only as long as it
did not “completely undermine” the goal of deterrence. (Doc. 146, Supp’n Br. at pp. 8-9).
They argue that even a lessening of the liability a defendant may be exposed to conflicts
with section 1983, as the majority of courts have recognized. They also argue that no
other court has ever understood “inconsistent” in section 1988(a) to require the state law
to “completely undermine[ ]” the goal of the statute. (Id. at pp. 9-10).
This argument does not persuade us. We did not require the state law to
“completely undermine” section 1988(a), and we did not use those words. Nor can our
ruling essentially be considered as requiring a complete undermining. We simply
decided that anyone contemplating being a civil-rights tortfeasor would be sufficiently
deterred by the prospect of being liable in damages, even if he thought about the
possibility of lessening those damages by seeking contribution from a joint tortfeasor. In
short, we simply disagreed with other courts that have said that the possibility of
contribution lessened the deterrence goal of section 1983. Moreover, giving the issue

-10-

more thought, we think it is not just the possibility of damages, however lessened by
contribution from a joint tortfeasor, that would deter a defendant, but the other burdens of
litigation that would also sufficiently deter him, regardless of the possibility of contribution.
These burdens include being subject to suit itself, the time and expense of discovery, and
defending the claim at trial. Cf. Robertson, supra, 436 U.S. at 592, 98 S.Ct. at 1996
(“given that most Louisiana actions survive the plaintiff's death, the fact that a particular
action might abate surely would not adversely affect § 1983's role in preventing official
illegality . . . . A state official contemplating illegal activity must always be prepared to
face the prospect of a § 1983 action being filed against him”).
We also decided that allowing contribution served deterrence in a direct
way, by citing Glus v. G.C. Murphy Co., 629 F.2d 248, 252 (3d Cir. 1980)(“Without a right
of contribution a wrongdoer may escape liability for his actions because of the
happenstance of the plaintiff's choice of defendants.”). The third-party defendants
correctly infer what we meant by this, that the possibility of being joined as a third-party
defendant on a contribution claim, not just being sued by the plaintiff directly, would deter
illegal acts as well.
The third-party defendants argue that it is not plausible that a civil-rights
tortfeasor would be deterred by the possibility that, if the victim sued other wrongdoers
but not him, he might be joined as a third-party defendant. We reject this argument. See
Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 88, 101
S.Ct. 1571, 1579, 67 L.Ed.2d 750 (1981)(“Recognition of the right [of contribution] reflects

-11-

the view that when two or more persons share responsibility for a wrong, it is inequitable
to require one to pay the entire cost of reparation, and it is sound policy to deter all
wrongdoers by reducing the likelihood that any will entirely escape liability.”)(footnote and
cited authority omitted). We also note that, in any event, resolution of this issue is not
crucial as we have decided that a tortfeasor is already sufficiently deterred by the
prospect of being named as a defendant by the victim.
We turn now to the third-party defendants’ argument concerning
compensation. In our August 16 memorandum, we said that “allowing contribution
serves the other goal of section 1983, compensation of the victim because it allows a
defendant to bring into the case a party who can provide additional compensation.”
Kohn, supra, 2012 WL 3560822, at *6. In a footnote, we added that this would be
“accomplished indirectly; the third-party defendant would only be liable to the defendant,
but that liability would assist in payment of any judgment the plaintiff obtained against the
defendant.” Id. at *6 n.13.
The third-party defendants argue that this position is mistaken because it
would be relevant only if the defendants and third-party defendants were jointly and
severally liable to Plaintiffs, and our position ignores 42 Pa. Con. Stat. § 7102, a change
in Pennsylvania law known to some as “The Fair Share Act of 2011.” With some
exceptions, this act changes joint and several liability to several liability, id. § 7102(b.1),
meaning that defendants and third-party defendants are only liable to the plaintiff for that
portion of the damages for which the jury finds them responsible. Hence, as the

-12-

argument goes, attorney Ellison could not be called upon by the defendant School District
to make up any damages the School District could not pay, and our “compensation
rationale” is “far weaker” than suggested by our memorandum. (Doc. 146, Supp’n Br. at
p. 8).
Defendant’s argument has no bearing on our ruling that section 1988(a)
allows us to borrow Pennsylvania statutory law on contribution for two reasons. First, a
benefit to the plaintiff is not necessary to invoke section 1988(a), as we have already
decided. Second, section 1988(a) requires a conflict with federal law to disqualify a state
law, and the third-party defendants’ argument, if true, only establishes that allowing
contribution may not, or only weakly serve, section 1983's goal of compensating victims.
It also appears that invoking section 7102 here is incorrect since the act
applies only to causes of action that accrue after its effective date, June 28, 2011. See
42 Pa. Con. Stat. Ann. § 7102 (West Supp. 2012)(Historical and Statutory Notes -- Act
2011-17 Legislation). In the instant case, according to the Amended Complaint (Doc.
24), plaintiff Kohn’s and plaintiff Botel’s causes of action accrued on March 15, 2010, and
plaintiff Hostetler’s cause of action accrued on May 17, 2010. The action itself was
initiated in state court on December 7, 2010, a little less than seven months before
section 7102 was enacted. It thus appears that our original analysis is still good for this
action. See Essex Ins. Co. v. Rayski, Inc., No. 07-CV-9, 2007 WL 1965537, at *2-3 (E.D.
Pa. July 2, 2007).

-13-

We note that the third-party defendants have sought reconsideration of our
“determination” that there are no grounds for certifying our order of August 16, 2012, for
interlocutory appeal under 28 U.S.C. § 1292(b). There is no procedural basis for seeking
reconsideration of that determination. The third-party defendants never filed a motion for
a section 1292(b) certification, and no order was entered denying certification, only an
order denying the motion for judgment on the pleadings. Reconsideration can only be
sought for an order, see Local Rule 7.10, not for comments in a memorandum about a
request made in a brief. See Kohn, 2012 WL 3560822, at *6 (“Since we have decided to
allow contribution, we will comment on attorney Ellison’s and Rhoads & Sinon’s request
(in their brief) under 28 U.S.C. § 1292(b) for an interlocutory appeal on this issue.”). The
third-party defendants are free to file a motion seeking certification. See Fed. R. Civ. P.
7(b)(1)(“A request for a court order must be made by motion.”).
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: October 31, 2012

-14-

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERALD KOHN, et al.,
Plaintiffs
v.
SCHOOL DISTRICT OF THE CITY
OF HARRISBURG, et al.,
Defendants
v.
LINDA THOMPSON, et al.,
Third-party Defendants

:
:
:
: CIVIL NO. 1:11-CV-109
:
:
:
:
:
:
:
:
:

ORDER

AND NOW, this 31st day of October, 2012, it is ORDERED that the motion
(Doc. 145) for reconsideration filed by third-party defendants, James E. Ellison, Esq., and
Rhoads & Sinon, is DENIED.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge