Sieg et al v. Sears Roebuck and Company et al

Filing 51

MEMORANDUM and ORDER denying Leviton's 45 Motion for Reconsideration ; and denying 48 Motion to Supplement motion for reconsideration.Signed by Honorable James M. Munley on 5/11/12 (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL SIEG and
DEANNA SIEG,
Plaintiffs

:
No. 3:10cv606
:
:
(Judge Munley)
:
v.
:
:
SEARS ROEBUCK & COMPANY
:
and LEVITON MANUFACTURING
:
COMPANY,
:
Defendants
:
:
v.
:
:
PRIMAX ELECTRONICS, LTD.,
:
Third-Party Defendant :
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court are Defendant Leviton Manufacturing’s (hereinafter
“Leviton”) motion for reconsideration (Doc. 45) and its motion to supplement
its motion for reconsideration (Doc. 48). In its first motion, Leviton moves for
reconsideration of the court’s February 24, 2012 Memorandum and Order
(Doc. 43) in which Leviton’s third-party complaint against Primax Electronics,
Ltd. (hereinafter “Primax”) was dismissed. Leviton also makes two requests
in the alternative in its motion for reconsideration. The first request in the
alternative is for a jurisdictional hearing. Leviton’s second request in the
alternative is for the court to amend its February 24, 2012 Order to allow for
immediate appeal. In its motion to supplement its motion for reconsideration,
Leviton seeks to provide additional information to the court regarding two
Pennsylvania state court cases. These motions have been fully briefed and

are ripe for disposition. For the following reasons, these motions will be
denied.
A. Motion for Reconsideration (Doc. 45)
“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) (citing Keene Corp. v. Int’l
Fidelity Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1983)); see also Max’s
Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999). To succeed on a motion for reconsideration, a movant must
demonstrate one of the following three grounds (1) an intervening change in
the controlling law; (2) the availability of new evidence not previously
available; or (3) the need to correct a clear error of law or to prevent manifest
injustice. Max’s Seafood Café, 176 F.3d at 677. A motion for reconsideration
is not a proper vehicle to merely attempt to convince the court to rethink a
decision it has already made. Glendon Energy Co. v. Borough of Glendon,
836 F. Supp. 1109, 1122 (E.D. Pa. 1993).
In the Memorandum and Order dated February 24, 2012, the court
dismissed Leviton’s third-party complaint against Primax pursuant to Federal
Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. The court
found that Leviton failed to establish that Primax purposefully availed itself of
the Pennsylvania market in a way related to the instant litigation. (Doc. 43,
Mem. & Order dated Feb. 24, 2012 at 18). The court reached this conclusion
2

after applying both “stream of commerce” standards from Asahi Metal
Industry Company v. Superior Court of California, 480 U.S. 102 (1987).1
In its instant motions, Leviton requests that the court reconsider its
previous finding that Leviton failed to establish personal jurisdiction under
either Asahi standard. Leviton claims that the court overlooked arguments it
previously made and that reversal is required to prevent a clear error of law
and a manifest injustice. The court will deny Leviton’s motion to reconsider
because all arguments previously presented were thoroughly considered and
rejected, as is explained in the February 24, 2012 Memorandum and Order.2
1

Courts sitting in the Third Circuit apply the Justice O’Connor and
Justice Brennan standards from Asahi in assessing whether personal
jurisdiction exists under the stream of commerce theory. See Pennzoil Prods.
Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 207 n.11 (3d Cir. 1998).
Although a majority of the United States Supreme Court has yet to reach a
decision on the continued validity of the more liberal approach to determining
personal jurisdiction, as espoused by Justice Brennan in Asahi, a majority of
the court agrees that personal jurisdiction cannot be exercised over a
manufacturer that fails both Asahi standards. See generally J. McIntyre
Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011).
2

Leviton largely repeated its allegations with respect to Primax’s
awareness of the sale of its products throughout the United States. However,
in its brief in support of its motion for reconsideration, Leviton asserts the new
allegation that “Primax manufactured the power tap at its facilities in Taiwan,
shipped the product ‘F.O.B.’ Taiwan to one of its U.S. distributors, Leviton, in
California, which sent the product to a regional dealer, Sears, who then sold
the product to end purchasers, including those, such as Plaintiffs, in
Pennsylvania.” (Doc. 46, Br. in Supp. of Mot. for Recons. at 11). This is the
first time that Leviton, or any party to the action, alleged that the product was
actually sold in Pennsylvania. Asserting previously neglected allegations is
not a valid basis for a motion for reconsideration. See Max’s Seafood Café,
3

Leviton requests, in the alternative, that the court hold a jurisdictional
hearing in which Leviton wishes to “show that Primax purposefully availed
itself of the forum with regard to this particular product.” (Doc. 46, Br. in
Supp. of Mot. for Recons. at 19). Leviton seeks the testimony of Primax
officials at this hearing, and Leviton indicated that it would like to further
discuss the 2002 and 2003 Pennsylvania state court cases in which Primax
was a defendant. The material Leviton seeks to present before the court at
this hearing was available prior to our February 24, 2012 Memorandum and
Order. Parties may not introduce evidence and urge the court to rethink its
prior decision when that evidence was available at the time of the Order. See
Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251-52
(3d Cir. 2010) (holding that a district court did not abuse its discretion in
denying a motion for reconsideration premised on a party’s desire to submit
evidence that it inexplicably failed to previously submit). Like motions for
reconsideration, hearings held after an adverse order is handed down are not
the appropriate means by which to introduce evidence available at the time of

176 F.3d at 677. Notwithstanding the fact that this allegation is made here for
the first time, the court notes that Leviton has not alleged the quantity of
Primax products that have traveled down this alleged tributary in the stream of
commerce. Whether the relocatable power tap at issue was a part of the
regular flow of goods to the Pennsylvania market, or whether it was a part of a
small outlier shipment are important considerations in assessing whether
there is personal jurisdiction under the stream of commerce theory. (See
Doc. 43, Mem. & Order dated Feb. 24, 2012 at 17).
4

the adverse ruling.
Leviton also requests in the alternative that the court amend our Order
dated February 24, 2012 to allow for certification of an immediate appeal
pursuant to 28 U.S.C. § 1291 or 28 U.S.C. § 1292(b). Under 28 U.S.C. §
1291, the Circuit Courts of Appeals of the United States are provided with
jurisdiction over appeals from all final decisions of the district courts. 28
U.S.C. § 1291. In a case with multiple parties and claims, an order that
disposes of fewer than all of the claims and parties is not deemed “final.”
Carter v. City of Phila., 181 F.3d 339, 343 (3d Cir. 1999). Federal Rule of
Civil Procedure 54(b), however, allows for orders disposing of fewer than all of
the parties and claims in a case to be deemed “final” for the purposes of §
1291 when the court expressly determines that there is no just reason for the
delay in the appeal. See id. (citing FED. R. CIV. P. 54(b)). The Third Circuit
Court of Appeals has explained that Rule 54(b) was designed “‘to strike a
balance between the undesirability of piecemeal appeals and the need for
making review available at a time that best serves the needs of the parties.’”
Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 202 (3d Cir. 2006) (quoting
Allis-Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 363 (3d Cir. 1975)).
“The party seeking Rule 54(b) certification bears the burden of demonstrating
that its is the ‘infrequent harsh case meriting a favorable exercise of
discretion.’” U.S. Claims, Inc. v. Flomenhaft & Cannata, LLC, 519 F. Supp. 2d
515, 531 (E.D. Pa. 2006) (quoting Allis-Chalmers Corp., 521 F.2d at 365); see
5

also Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1003 (3d Cir.
1992).
In its request for certification, Leviton only mentioned Rule 54(b) in the
parenthesis of a string citation, and it did not attempt to explain why this is an
“infrequent harsh case.” The court can only glean from the other motions
Leviton filed that, as is mentioned above, Leviton seeks appeal to re-argue its
jurisdictional claims with the support of additional evidence and allegations.
Leviton has not carried its burden of establishing that this an “infrequent harsh
case.” Furthermore, the court notes that certifying this case for appeal would
likely delay plaintiffs’ case, which was initiated in early 2010, from proceeding.
Thus, the interests of sound judicial administration and discouraging
piecemeal litigation are not furthered by granting certification in this case.
The court also disagrees with Leviton’s contention that an interlocutory
appeal is proper under 28 U.S.C. § 1292(b). This section provides, in part, as
follows:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in
such order . . . .
28 U.S.C. § 1292(b). Certification of an interlocutory appeal pursuant to
Section 1292(b) “is not to be granted routinely, but is to be used in the rare
cases where an immediate appeal will avoid costly and protracted litigation.”
6

Bush v. Adams, 629 F. Supp. 2d 468, 474 (E.D. Pa. 2009) (citing Sporck v.
Peil, 759 F.2d 312, 315 n.4 (3d Cir. 1985)). All of the factors of Section
1292(b) must be satisfied for the certification of interlocutory appeal to be
proper. See Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974).
When this standard is applied, the court finds that the necessary factors
of Section 1292(b) are not satisfied, specifically the second and third factors.
With respect to the second factor, that “there is substantial ground for
difference of opinion,” Leviton cites the fact that a majority of the Supreme
Court has yet to adopt one of the personal jurisdiction standards from Asahi.
Although this is true, the court applied both standards from Asahi when it
dismissed Primax. (Doc. 43, Mem. & Order dated Feb. 24, 2012 at 18).
Courts agree that personal jurisdiction cannot be maintained when a party
fails to meet both the more stringent and less stringent standards from Asahi.
(See supra note 1).
Furthermore, with respect to the third factor, it is unlikely that an
interlocutory appeal would materially advance the ultimate termination of the
litigation. Although Leviton asserts that Primax’s inclusion in this lawsuit
would increase the probability of settlement, it is far from certain that Leviton
would succeed on appeal and, if it is successful, that the case would settle
before trial. Additionally, the issues to be tried will remain the same whether
Primax is a party to this action or not. Therefore, this is not a rare case that
fits into the exception to our strong policy against piecemeal litigation.
7

B. Motion to Supplement the Motion for Reconsideration (Doc. 48)
Similar to its motion for reconsideration, Leviton’s request to supplement
its motion for reconsideration will be denied. This motion amounts to nothing
more than an argument for reconsideration based on newly presented
evidence–pleadings from two nearly decade old Pennsylvania state court
cases–that was available at the time the parties briefed the motion to dismiss.
See Martsolf v. Brown, 457 F. App’x 167, 170 (3d Cir. 2012) (finding that a
“district court does not abuse its discretion when it declines to grant
reconsideration based on new evidence that a party inexcusably failed to
produce before the matter was decided.”).
Even if the supplemental brief is considered, and Leviton is, in essence,
granted a do-over, the court is nonetheless unconvinced that it would help
Leviton’s cause. Leviton seeks to establish that Primax was aware that it was
subject to suit in Pennsylvania in late 2008 because it was a party to products
liability cases (in 2002 and 2003) involving products similar to the one at issue
in this case. The 2002 and 2003 complaints attached to the supplemental
brief are not much more persuasive on the issue of purposeful availment than
the docket sheets attached as exhibits to Leviton’s brief in opposition to the
motion to dismiss. (See Doc. 35-4, Ex. C, Dockets & Pleadings). It remains
true, as it was when the court first addressed this issue, that involvement in
previous litigation in the forum state represents, at best, tenuous evidence of
specific jurisdiction. This is especially true when that litigation occurred years
8

ago, is seemingly unrelated to the distribution system in question, and
involves different parties. (See Doc. 43, Mem & Order dated Feb. 24, 2012 at
14-15).

9

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL SIEG and
DEANNA SIEG,
Plaintiffs

:
No. 3:10cv606
:
:
(Judge Munley)
:
v.
:
:
SEARS ROEBUCK & COMPANY
:
and LEVITON MANUFACTURING
:
COMPANY,
:
Defendants
:
:
v.
:
:
PRIMAX ELECTRONICS, LTD.,
:
Third-Party Defendant :
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 11th day of May 2012, Defendant Leviton
Manufacturing’s motion for reconsideration (Doc. 45) and its motion to
supplement its motion for reconsideration (Doc. 48) are hereby DENIED.

BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

10