Matthews v. Runco's Tavern & Grill, Inc. et al

Filing 108

MEMORANDUM OPINION - For the foregoing reasons, Defendant's Motion for Reconsideration (Doc. 95) is DENIED and the Court's Order and Opinion of August 5, 2013 shall remain in effect. A separate Order follows.Signed by Honorable Robert D. Mariani on 11/15/13. (jfg)

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

RICHARD MATTHEWS,
Plaintiff,

3:10-CV-01215

v.
(JUDGE MARIANI)
RUNCO'S TAVERN & GRILL, INC,
et al.,
Defendants.

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MEMORANDUM OPINION
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Procedural History

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The background of this Opinion is as follows. On May 7,2013, Defendants Police

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Officers William Arthur, Brian Borowicz, and Joseph Flesher, as well as their Co-

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Defendant Thomas Logan, filed Motions for Summary Judgment in the above-captioned
civil rights action. (See Doc. 77 (Arthur, Borowicz, and Flesher); Doc. 81 (Logan).) On
August 5, 2013, this Court issued an Opinion (Doc. 92) and an Order (Doc. 93) denying
the Motions. On August 15, Defendants Arthur, Borowicz, and Flesher filed a Motion for
Reconsideration (Doc. 95). That latter Motion is presently before the Court.
The facts underlying this case were stated at length in the Court's August 5
Opinion and need not be restated here. (For the factual background, see Doc. 92 at 2­

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9.) Defendants, however, only move for the Court to reconsider its Opinion as it pertains

to three issues therein. These issues are:

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1. That the Court should have provided a ruling on the qualified immunity of
the police officer Defendants (see Defs.' Mem. of Law in Supp. oftheir Mot.

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for Recons., Doc. 96, at 4);

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2. That the Court should have denied Plaintiffs selective prosecution claim

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rather than construe it as a selective enforcement claim, (see id. at 7); and
3. That the Court should have provided a ruling on the absolute immunity of
the police officers for some unspecified testimony they gave as part of
"their participation in the judicial process," (see id. at 10).
As relief, the Defendants request that they be "dismiss[ed] from this case with

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prejudice." (Id. at 11.)

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II.

Standards Governing Motion for Reconsideration
"The purpose of a motion for reconsideration is to correct manifest errors of law or

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fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906,

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909 (3d Cir. 1985). A motion for reconsideration is permitted only on one of three

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grounds: (1) there is an intervening change in the controlling law; (2) new evidence
becomes available; or (3) there is a need to correct clear error of law or fact or to prevent
manifest injustice. See Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013) (quoting

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Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)). Moreover, "motions for
reconsideration should not be used to put fOlWard arguments which the movant ...
could have made but neglected to make before judgment." United States v. Jasin, 292
F. Supp. 2d 670,677 (E.D. Pa. 2003) (internal quotation marks and alterations omitted)
(quoting Reich v. Compton, 834 F. Supp. 2d 753,755 (E.D. Pa. 1993) (rev'd in pari and

affd in pari on other grounds, 57 F.3d 270 (3d Cir. 1995)).

III.

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Analysis

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a. Qualified and Absolute Immunity

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Grounds 1and 3 of Defendants' Motion for Reconsideration argue that the Court

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committed a "manifest injustice" when it neglected to consider the qualified or absolute
immunity of the police officer defendants, both in their conduct at the scene of Plaintiff's
arrest and at subsequent judicial proceedings. (See Defs.' Mot. for Recons., Doc. 95 at

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1m 4-5 (qualified immunity); id. at 1m 19,22-23 (absolute immunity).)

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Defendants first claimed that these issues were pled "in the Amended Second

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Motion for Summary Judgment." (See id. at 1m 4, 19). However, upon review of
Defendants' Amended Second Motion for Summary Judgment, the Court could find no
mention of either qualified or absolute immunity. (Cf. generally Defs. Arthur, Borowicz,
and Flesher's Am. Second Mot. for Surnm. J., Doc. 77.) The Court therefore issued an
ordering directing the Defendants to cite the specific language in their Amended Second

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Motion where they raised the issues. (See Doc. 101.) Defendants replied by citing

language from other filings. (See Doc. 102.) The Court considered this nonresponsive
and issued asecond order renewing its direction to cite to specific language in the
Amended Second Motion. (See Doc. 103.) Finally, Defendants' counsel submitted a
letter admitting that, despite their contrary representations to this Court, qualified and
absolute immunity were not pled in their Motion. (See Doc. 105.) Defendants' counsel
stated, "We were aware at the time that we wrote, and I signed, the Motion for
Reconsideration that qualified and absolute immunity were only raised during the
summary judgment process, in our Reply Brief." (/d.)
Defendants' admission is significant. In ruling on a motion, "a district court need
not address issues raised for the first time in a reply brief." Dreyer v. Sheaffer, 2009 WL
917829, at *3 (M.D. Pa. 2009). That is because "[a] reply brief is intended only to
provide an opportunity to respond to the arguments raised in the response brief; it is not
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intended as aforum to raise new issues. United States v. Martin, 454 F. Supp. 2d 278,
281 n.3 (E.D. Pa. 2006) (collecting cases). Because, as demonstrated by Defendants'
own admission-which is compelled by a review of the record-Defendants never raised
these issues until they submitted their reply brief, the Court was under no obligation to
address them.

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However, Defendants intimate that the issues of qualified and absolute immunity
were properly raised "in response" to Plaintiffs Omnibus Brief in Opposition to the
Motions for Summary Judgment. (See Doc. 102 at 1.) This argument nonetheless fails
for two reasons.
First, absolute immunity is not mentioned in Plaintiffs Brief at all. Nor does that
Brief even make reference to testimony that could implicate absolute immunity. (Cf.
generally PI.'s Omnibus Br. in Opp. to All Defs.' Revised Motions for Summ. J., Doc. 84.)

Thus, though Defendants claim that they "raised the issue of absolute immunity in their
Reply Memorandum ... in an abundance of caution, specifically in response to Plaintiffs
claims in his Omnibus Brief in Opposition ... which referenced the testimony of the
Officers, particularly Officer Arthur," (Doc. 102 at 1), they, again, misstate the record.

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The only references to "testimony" in Plaintiffs Brief in Opposition are to deposition

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testimony in the present civil case, which cOllld not plausibly be construed to form a

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an attempt to establish certain facts, for instance, whether Borowicz and Flesher ignored

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witness testimony at the scene of the arrest, (see Doc. 84 at 10), whether Logan directed

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basis for liability. Clearly, Plaintiff only references Defendants' deposition testimony in

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Arthur to arrest Plaintiff, (see id. at 13), or whether Arthur heard a comment about
Logan's shoulder being damaged, (see id. at 5). Merely using the word "testimony" in an
unrelated context does not open the floodgates for a full discussion of absolute immunity

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in a reply brief. Under the facts of this case, the only way that absolute immunity could

have any relevance would be if Plaintiff alleged liability for testimony made during his
criminal prosecution. But nowhere in his Brief in Opposition does Plaintiff reference any
such testimony. So it is clear that Defendants did not properly raise this issue before the
Court, and their arguments to the contrary are based on distortions of the record.
Second, to the extent that qualified immunity is mentioned in Plaintiffs Brief, it is
mentioned only tangentially and not as an independent argument that the Plaintiff seeks
to rebut. The only times that the phrase "qualified immunity" is used are in two discrete
sentences on page 12 of Plaintiffs sixteen-page brief, in a section discussing whether
the officers committed the torts alleged. Plaintiff only mentions qualified immunity off­
hand by citing to two extra-jurisdictional cases in which an officer' misconduct overrode
qualified immunity and gave rise to a Fourth Amendment claim. (See Doc. 84 at 12.)
From the context of these passages, the Court does not find that Plaintiff placed
qualified immunity at issue. Plaintiffs discussion is clearly adiscussion only of what is
necessary to show the elements of the torts he alleged. The Court reads the references
to qualified immunity only as illustrations of what other Courts-whose decisions are not
binding in this District-have considered to be conduct giving rise to a cause of action.

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This interpretation is supported by the fact that Plaintiff never argues that the officers lost

qualified immunity; he only argues that they satisfied the elements of the tort~.1
In contrast to the elliptical nature of Plaintiffs comments, the Defendants devote
nearly two and a half pages of their fourteen-page Reply Brief to the issue of qualified
immunity. (See Defs. Officers Arthur, Borowicz, and Flesher's Reply Mem. of Law in
Supp. of Their Am. Second Mot. for Summ. J., Doc. 90, at 11-14.) This, however, as
discussed above, perverts the purpose of the Reply Brief, which becomes a vehicle for
inequity when it is allowed to raise issues not raised in previous briefs. Plaintiff cannot
file asur-reply to a reply brief as a matter of right, so any attempt to use a reply brief as a
forum to raise new issues is properly prohibited.
In light of the foregoing, the Court concludes that it acted perfectly within the
bounds of its discretion when it refrained from providing a ruling on qualified or absolute
immunity. Certainly, the Court cannot conclude that its abstention from providing such a
ruling was a"manifest injustice."
This does not, however, mean that the immunity issues are waived. Qualified and
absolute immunity can be raised at any time. See, e.g., Hunter v. Bryant, 502 U.S. 224,
227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991) ("[B]ecause the entitlement is an
immunity from suit rather than a mere defense to liability, we repeatedly have stressed
Even if qualified immunity and the elements of the relevant torts would ordinarily be considered
together, neither party considered them together in any of the previous filings, so raising the issue in areply
brief is inappropriate.
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the importance of resolving immunity questions at the earliest possible stage in

litigation.") (internal citations, quotations, and alterations omitted). However, a Motion for
Reconsideration by definition can only pertain to issues that were actually considered.
Issues that were not properly brought before the Court in the first Motion cannot be
"reconsidered" because they were never considered in the first place. Indeed, in the
present case, immunity could not have been considered based on the summary
judgment filings without acting inequitably toward the non-moving party. Whether
through strategy or oversight, Defendants did not invoke any kind of immunity in their
Motion for Summary Judgment. Evidently, they now regret that decision. But it is not the
Court's responsibility to sua sponte save Defendants from their own mistakes.

b. Selective Enforcement
Next, Defendants argue that the Court committed another manifest injustice
when, "recognizing Matthews did not meet his burden for aselective prosecution claim,
[the Court] instead substituted and ruled on the separate, distinct claim of selective
enforcement in denying Defendants' Motion for Summary Judgment." (Doc. 95 at 1f 14.)
This is in response to footnote 3 of the Court's Opinion, which noted that Plaintiffs claim
for "selective prosecution" actually described a claim for "selective enforcement" and
proceeded to rule on it as such. (Doc. 92 at 17 n.3.)

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Defendants' argument is somewhat ironic: while their previous grounds for

reconsideration objected that the Court did not raise issues sua sponte that would have
redounded to their own benefit, now they object that the Court did raise other issues sua
sponte that do not work to their immediate advantage. Thus, they write: "[I]t is not the

duty of the Court to sua sponte allow an amendment to the pleadings long after
discovery is closed and defendants have not had an opportunity to address such a
claim." (Doc. 95 at 1f 15.)
This argument is properly before the Court on a Motion for Reconsideration
because it concerns disputes with the Court's Opinion itself which could not have been
raised until after the Opinion was issued. Nonetheless, the Court cannot agree that it
committed a"manifest injustice" by not granting summary judgment for a labeling error.
At the outset, it is simply untrue to claim that Defendants have not had the
opportunity to address a selective enforcement claim. As the Court stated in its Opinion,
whether one treats Plaintiffs Complaint as alleging selective prosecution or selective
enforcement udoes not change the outcome of any substantive analysis." (Doc. 92 at 17
n.3.) That is because, while selective enforcement and selective prosecution are distinct
claims, the elements of each are analytically the same.
A cursory look at the case law confirms this conclusion. Thus, the Third Circuit
has defined the elements of aselective enforcement claim as follows:

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To establish a selective-enforcement claim, a plaintiff must demonstrate (1)
that he was treated differently from other similarly situated individuals, and
(2) "that this selective treatment was based on an unjustifiable standard,
such as race, or religion, or some other arbitrary factor, or to prevent the
exercise of a fundamental right."

Dique v. New Jersey State Police, 603 F.3d 181, 184 n.5 (3d Cir. 2010) (quoting Hill V.
City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (internal alterations omitted)).
The elements of a selective prosecution claim are nearly identical:
To establish a claim of selective prosecution, [a plaintifl] must demonstrate
two factors. First, he must provide evidence that persons similarly situated
have not been prosecuted. Second, he must show that the decision to
prosecute was made on the basis of an unjustifiable standard, such as
race, religion, or some other arbitrary factor, or that the prosecution was
intended to prevent his exercise of afundamental right.

United States V. Schoo/craft, 879 F.2d 64, 68 (3d Cir. 1989).
The difference between the two claims is that selective enforcement is a claim
against government enforcement officials generally, whereas selective prosecution is a
claim against prosecutors. In the present case, prosecutors are not named as parties,
nor is the conduct of any prosecution at issue. The factual allegations beginning in
paragraph 12 of Plaintiff's Complaint all refer to the circumstances surrounding police
enforcement against Plaintiff. (See Second Am. Compl., Doc. 48, at 1MJ12-32.) Only
paragraphs 30 and 31 refer to Plaintiff's criminal trial, but the only allegation in either
paragraph that Plaintiff makes against a Defendant is in reference to non-movant
Thomas Logan's alleged false testimony at trial. This testimony has nothing to do with
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the substance of the underlying prosecution or with the elements of a selective

prosecution claim. (See id. at ~ 31.) Moreover, Defendants never dispute that the
prosecution is not at issue: in their Motion for Summary Judgment they seek to defeat
Plaintiff's selective prosecution claim by referring only to what they did at the time of his
arrest. 2 (See Doc. 77 at 1m 37-52.) Plaintiff's Brief in Opposition seeks to rebut these
claims-but, once again, it argues only by reference to what the Defendants did at the
time of Plaintiff's arrest, and not by reference to any prosecution. (See Doc. 84 at 14.)
Accordingly, when this claim was presented to the Court by Motion for Summary
Judgment, it was treated by all parties as aclaim for selective enforcement in everything
but name. As the Supreme COllrt has held:
It is too late in the day and entirely contrary to the spirit of the Federal

Rules of Civil Procedure for decisions on the merits to be avoided on the

basis of ... mere technicalities. The Federal Rules reject the approach

that pleading is a game of skill in which one misstep by counsel may be

decisive to the outcome and accept the principle that the purpose of

pleading is to facilitate a proper decision on the merits. The Rules

themselves provide that they are to be construed "to secure the just,
speedy, and inexpensive determination of every action." Rule 1.

Fornan v. Davis, 371 U.S. 178, 181-82,83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)
(internal citations and quotation marks omitted).

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2 Though Defendants cite selective prosecution cases to make their arguments, (see Doc. 77 at 1m
32-36), the Motion makes clear that they believe these cases apply to the facts of Plaintiffs arrest.
Defendants never argued that Plaintiff failed to state a legal claim for selective prosecution until this Court
brought the distinction between the two claims to the parties' attention.

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Here, it is true that the decision to construe Plaintiffs claim as aclaim for selective

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enforcement rather than selective prosecution was made sua sponte and not on aformal

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motion to amend the Complaint as is more common. However, if the Court did not
proceed in this manner, it would be forced to choose between two unpalatable options,

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neither of which is consistent with the well-established policy laid out in Farnan, supra.

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First the Court could have dismissed the claim in its entirety. But this would have been

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to exalt form over substance by avoiding the merits of a claim, which all parties

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addressed in their respective motions and briefs, based only on a labeling error.

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Alternatively, the Court could have ordered Plaintiff to amend his Complaint. But this

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would have been Plaintiffs fourth complaint in acase that was filed roughly three and a
half years ago. Amendment would undo the progress that has been made in bringing

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this case closer to trial, by pushing it back to the pleading stage, and would therefore

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violate Rule 1's directive to secure the "just, speedy, and inexpensive determination of
every action."
Rather than follow these self-defeating courses, the Court concluded that the
better option was to construe the cause of action in the way that all parties had
effectively construed it throughout the entire two years since Plaintiffs Second Amended
Complaint was filed. To do so was not a manifest injustice, but rather was consistent

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with the policies imposed by the Supreme Court and the Federal Rules. The Court sees
no reason to reconsider its decision to comply with those policies.

IV,

Conclusion
For the foregoing reasons, Defendant's Motion for Reconsideration (Doc. 95) is

DENIED and the Court's Order and Opinion of August 5, 2013 shall remain in effect. A
separate Order follows.

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