Rittenhouse Entertainment, Inc. et al v. City of Wilkes-Barre et al

Filing 255

MEMORANDUM (Order to follow as separate docket entry) re 244 MOTION for Reconsideration re 239 Order (memorandum filed previously as separate docket entry), 238 Memorandum (Order to follow as separate docket entry) filed by G Net Comm. Co., Thomas J. Greco, 240 MOTION for Summary Judgment filed by King's College, 242 MOTION for Reconsideration re 239 Order (memorandum filed previously as separate docket entry), 238 Memorandum (Order to follow as separate docket entry) filed by Thomas Leighton, City of Wilkes-Barre, Gerald Dessoye. Signed by Honorable Jennifer P. Wilson on 8/10/2021. (ve)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RITTENHOUSE ENTERTAINMENT, :
INC., et al.,
:
:
Plaintiffs,
:
:
v.
:
:
CITY OF WILKES-BARRE, et al.,
:
:
Defendants.

:

Civil No. 3:11-CV-00617

Judge Jennifer P. Wilson

MEMORANDUM
This is a civil rights case that was recently remanded from the United States
Court of Appeals with instructions to consider whether Defendants were entitled to
summary judgment on the basis of qualified immunity and whether Defendants
were entitled to summary judgment as to Plaintiffs’ tortious interference with a
contract claim. Following the remand, the court granted the Defendants summary
judgment in part and denied it in part. All parties have moved for partial
reconsideration of the court’s order. (Docs. 240, 242, 244.) The motions for
reconsideration are fully briefed and ripe for the court’s review. For the reasons
that follow, Defendants’ motions for reconsideration are denied and Plaintiffs’
motion for reconsideration is granted in part and denied in part.

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BACKGROUND AND PROCEDURAL HISTORY 1
Plaintiffs filed their amended complaint, which remains the operative
pleading in this case, on April 6, 2012, raising several federal and state claims.
(Doc. 36.) The court granted Defendants’ motions to dismiss in part and denied
them in part on June 4, 2012. (Docs. 59–60.) All three groups of Defendants
moved for summary judgment following the close of fact discovery. (Docs. 135,
138, 141.) The court granted summary judgment as to all remaining federal claims
on August 8, 2018, and declined to exercise supplemental jurisdiction over the
remaining state law claims. (Docs. 201–02.) Plaintiffs appealed. (Doc. 203.)
On appeal, the Third Circuit vacated and remanded in part and affirmed in
part. Rittenhouse Entm’t, Inc. v. City of Wilkes-Barre, 782 F. App’x 148, 150 (3d
Cir. 2019). The Third Circuit found that summary judgment was inappropriate as
to the claims raised in Counts I, II, and III against the City and College Defendants
and accordingly vacated and remanded for further proceedings on those claims. Id.
at 153–54. The Third Circuit affirmed the grant of summary judgment as to all
claims raised against the County Defendants and all claims raised in Counts IV and
VI. Id. at 155–56. Because the Third Circuit vacated and remanded as to some of

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Because the court writes primarily for the parties, this section only includes background and
procedural history that is essential to understanding the motions for reconsideration. For a more
complete background and procedural history, please see the court’s May 7, 2021 summary
judgment opinion. (Doc. 238.)
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Plaintiffs’ federal claims, the court additionally vacated the court’s decision to
decline to exercise supplemental jurisdiction over the tortious interference claim
and remanded for further proceedings on that claim. Id. at 156 n.6.
Following remand from the Third Circuit and court-ordered supplemental
briefing on the issues of qualified immunity and tortious interference, the court
issued a memorandum and order on May 7, 2021, granting summary judgment as
to the remaining claims in part and denying summary judgment in part. (Docs.
238–39.) The court found that all individual defendants were entitled to qualified
immunity as to the claims raised in Counts I, II, and III, and accordingly granted
summary judgment to the individual defendants on that basis. (Doc. 238, pp. 21–
28.) The court additionally granted summary judgment to Defendants Murphy,
Thomas, Kane, Barrett, Cronauer, Merritt, and Frati on Plaintiffs’ tortious
interference with a contract claim, but denied summary judgment on that claim as
to Defendants Leighton, Dessoye, O’Hara, and McGonigle. (Doc. 238, pp. 29–34.)
All parties filed partial motions for reconsideration on May 21, 2021. (Docs.
240, 242, 244.) Defendants’ motions seek reconsideration of the court’s decision
to deny summary judgment for the tortious interference claim as to Defendants
Leighton, Dessoye, O’Hara, and McGonigle. (Docs. 240, 242.) Plaintiffs’ motion
seeks reconsideration of the court’s decision to grant qualified immunity to the
individual Defendants and additionally seeks reconsideration of the court’s
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granting of summary judgment to Defendant Murphy as to the tortious interference
claim. (Doc. 244.) Plaintiffs alternatively argue that if the court does not grant
reconsideration, it should instead issue a certificate of appealability to allow
Plaintiffs to immediately appeal to the Third Circuit. (Doc. 245, pp. 12–14.)
Briefing on all three motions for reconsideration is complete, see Docs. 241, 243,
245, 249–54, and the motions are accordingly ripe for the court’s disposition.
STANDARD OF REVIEW
A party seeking reconsideration of a district court’s order must show either
(1) “an intervening change in the controlling law”; (2) the availability of new
evidence that was not available when the court issued its prior 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)
(citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d
Cir. 1995)). Motions for reconsideration “cannot be used to reargue issues that the
court has already considered and disposed of.” McSparren v. Pennsylvania, 289 F.
Supp. 3d 616, 621 (M.D. Pa. 2018) (citing Blanchard v. Gallick, No. 1:09-CV01875, 2011 WL 1878226 at *1 (M.D. Pa. May 17, 2011)). Additionally, a motion
for reconsideration “may not be used to present a new legal theory for the first
time” or “to raise new arguments that could have been made in support of the
original motion.” MMG Ins. Co. v. Guiro, Inc., 432 F. Supp. 3d 471, 474 (M.D.
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PA. 2020) (citing Vaidya Xerox Corp., No. 97-CV-00547, 1997 WL 732464, *2
(E.D. Pa. Nov. 25, 1997)). A “mere disagreement” with a court’s legal conclusion
is not a sufficient basis for reconsideration. Chesapeake Appalachia, LLC v. Scout
Petroleum, LLC, 73 F. Supp. 3d 488, 491 (M.D. Pa. 2014) (citing Mpala v. Smith,
No. 3:06-CV-00841, 2007 WL 136750, at *2 (M.D. Pa. Jan. 16, 2007)).
Although a court may reconsider a prior order based on a party’s motion,
motions for reconsideration “should be granted sparingly as federal courts have a
strong interest in the finality of judgments.” Kitzmiller v. Dover Area Sch. Dist.,
388 F. Supp. 2d 484, 488 (M.D. Pa. 2005). The decision of whether to grant a
motion for reconsideration is left to the discretion of the district court. Le v. Univ.
of Pa., 321 F.3d 403, 405 (3d Cir. 2003).
DISCUSSION
A. Defendants’ Motions for Reconsideration Are Denied
The court will first consider Defendants’ arguments that the court should
reconsider the denial of summary judgment as to Plaintiffs’ tortious interference
with a contract claim. (Doc. 241, 243.) In denying summary judgment as to that
claim, the court relied on persuasive authority from the Western District of
Pennsylvania in Cole v. Encapera, No. 2:15-CV-00104, 2017 WL 3503121 (W.D.
Pa. Aug. 16, 2017), reversed in nonrelevant part, 758 F. App’x 252 (3d Cir. 2018).
Cole, like the present case, involved a tortious interference claim brought by the
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owner of a bar alleging that local police had tortiously interfered with the bar’s
business through increased police presence that allegedly caused individuals to
stop patronizing the bar. Id. at *4. This court summarized Cole as follows:
In Cole, local police allegedly parked their cars outside of a plaintiff’s
bar and regularly accosted individuals as they entered and exited the
bar, which allegedly caused customers to stop going to the bar. Id. at
*4. The plaintiff brought a claim for tortious interference with a
contract, and one of the defendant police officers moved for summary
judgment, arguing that the tortious interference claim failed because the
plaintiff could not specifically name any customers who had stopped
going to the bar as a result of the police presence. Id. at *20. The court
rejected this argument, finding it immaterial that the plaintiff could not
name any specific customers who had stopped going to the bar, since
there was evidence in the record from which it could be inferred that
the police presence had caused people to stop going to the bar. Id.
(Doc. 238.)
After summarizing the facts and holding of Cole, this court stated that it
found Cole persuasive in deciding whether summary judgment was warranted in
the present case. The court noted the undisputed evidence that there was increased
police presence around The Mines during the relevant period and that business at
The Mines “slowed considerably in the months following the increased police
presence,” and therefore concluded that “a reasonable finder of fact could infer that
this slowdown in business was because of the increased police presence.” (Id. at
32–33.) “Plaintiffs,” the court continued, “have therefore presented sufficient

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evidence to establish the existence of a contract or a prospective contractual or
economic relationship.” (Id. at 33.)
All Defendants argue that the court’s reliance on Cole is misplaced. The
College Defendants note that the court found Cole “persuasive, and essentially
controlling in this matter,” which the College Defendants argue was a clear error of
law because Cole runs contrary to Pennsylvania precedent on what is required for a
plaintiff to succeed on a tortious interference claim. (Doc. 241, pp. 5–6.) The
College Defendants further argue that even if Cole is relied upon by the court, they
should still be granted summary judgment on the tortious interference claim
because Plaintiffs “have not even reached Cole’s newly established, low
evidentiary standard.” (Id. p. 7.) According to the College Defendants, the court’s
conclusion that a reasonable finder of fact could infer that the slowdown in The
Mines’ business was due to the increased police presence “is based on nothing
more than speculation . . . which draws a nexus without evidence, [and] should
never be allowed in the courtroom.” (Id. at 12–13.) The City Defendants also
argue that the court’s reliance on Cole is misplaced because Cole “is not
controlling precedent and its reasoning contradicts well-settled Pennsylvania law
which is controlling and requires the specific identification of the contract or
business relation with which the City Defendants allegedly interfered.” (Doc. 243,
p. 2.)
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The court will deny Defendants’ motions for reconsideration, as their
arguments amount to nothing more than a disagreement with the court as to the
persuasive value of Cole, which is not a sufficient basis for reconsideration. See,
e.g., Fouad v. Milton Hershey Sch. & Sch. Tr., No. 1:19-CV-00253, 2020 WL
8225506, at *2 (M.D. Pa. Feb. 19, 2020) (noting that party’s disagreement with
court as to whether a prior case applied to factual scenario before the court was not
a sufficient basis for reconsideration). As Plaintiffs aptly state in their opposition
brief, “[t]o follow a persuasive authority with which defendants disagree, is not a
clear error of law.” (Doc. 251, p. 3.)
B. Plaintiffs’ Motion for Reconsideration Is Granted to the Extent that
it Seeks Reconsideration of the Court’s Decision to Grant Qualified
Immunity to Defendants O’Hara and McGonigle
Turning to Plaintiffs’ motion for reconsideration, the court will first consider
the argument that the court erred in granting qualified immunity to individual
College Defendants O’Hara and McGonigle. (See Doc. 245, p. 12.) Having
reviewed the court’s prior opinion in light of Plaintiffs’ motion for reconsideration,
the court finds that it committed a clear error of law in this ruling and will
accordingly reconsider its decision and reinstate the claims in Counts I, II, and III
against O’Hara and McGonigle.
When the issue of qualified immunity was previously before the court,
O’Hara and McGonigle asserted that they were entitled to qualified immunity
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under Filarsky v. Delia, 566 U.S. 377 (2012), because Plaintiffs alleged in their
complaint that O’Hara and McGonigle were working in concert with government
officials. (See Doc. 221, pp. 8–10.) Plaintiffs responded that the question of
whether a defendant is acting in concert with a government actor is a distinct
question from whether that defendant is entitled to qualified immunity. (Doc. 225,
pp. 25.) Plaintiffs therefore argued that O’Hara and McGonigle were not entitled
to qualified immunity because they had not made any argument as to why they
were entitled to qualified immunity beyond the fact that they were allegedly acting
in concert with government actors. (Id. at 25–26.)
The court agreed with Plaintiffs that O’Hara and McGonigle had not
sufficiently argued why they were entitled to qualified immunity, noting that
although O’Hara and McGonigle had argued that the case was analogous to
Filarsky, they had not taken “the extra and necessary step of arguing why they are
entitled to qualified immunity if Filarsky does apply.” (Doc. 238, p. 28.) The
court nevertheless decided that O’Hara and McGonigle were entitled to qualified
immunity because the right at issue in the case was not clearly established at the
time the facts of the case had occurred. (Id.) “Accordingly,” the court stated,
“assuming without deciding that Filarsky applies to the present case, the individual
College Defendants are granted summary judgment as to Counts I, II, and III on
the basis of qualified immunity.” (Id.)
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The court committed a clear error of law in reaching this conclusion. By
declining to decide whether Filarsky applied, the court allowed O’Hara and
McGonigle to obtain the benefit of qualified immunity without first deciding the
threshold issue of whether they could be entitled to qualified immunity in the first
place. In effect, the court got the analysis backwards: the court decided that
because the right at issue was not clearly established, it would not need to reach the
issue of whether O’Hara and McGonigle could be considered state actors, whereas
the correct analysis would be to decide whether O’Hara and McGonigle could be
considered state actors, and, if they could not, the court would not need to
determine whether the right at issue was clearly established.
With that error in reasoning identified, the court’s remaining analysis is
straightforward. As the court previously recognized, “the question of whether a
defendant has acted in concert with a government actor is a distinct question from
whether the defendant is entitled to qualified immunity.” (Doc. 238.) O’Hara and
McGonigle argued that they were entitled to qualified immunity because the
Plaintiffs’ complaint alleged that they were acting in concert with government
actors, but a defendant acting in concert with a government actor is not by itself
sufficient to establish that that defendant is entitled to qualified immunity.
Accordingly, because defendants asserting that they are entitled to qualified
immunity have the burden to prove that the doctrine applies, Halsey v. Pfeiffer, 750
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F.3d 273, 288 (3d Cir. 2014), and O’Hara and McGonigle did not take “the extra
and necessary step of arguing why they are entitled to qualified immunity,” the
court concludes that those Defendants are not entitled to qualified immunity. The
court will therefore grant Plaintiffs’ motion for reconsideration to the extent that it
seeks reconsideration of the granting of qualified immunity to Defendants O’Hara
and McGonigle and reinstate the claims in Counts I, II, and III against those
Defendants.
C. Plaintiffs’ Other Qualified Immunity Arguments Are Denied
Plaintiffs make several arguments as to why the court should reconsider its
qualified immunity ruling with respect to the individual City Defendants, none of
which have merit.
Plaintiffs’ first argument is that the court committed a clear error of law
because it “mixed” the separate issues of whether the right at issue was clearly
established and whether the right was violated. (Doc. 245, p. 4–5.) Plaintiffs do
not develop this argument beyond the conclusory and unsupported assertions that
the court “disregarded” the Third Circuit’s prior ruling in this case and that the
court “provided [a] narrative of facts” that emphasized the “growing violence”
outside of The Mines. (Id. at 5.) Because Plaintiffs fail to explain how the court
disregarded the Third Circuit’s opinion or otherwise committed a clear error of
law, this argument is rejected.
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Plaintiffs’ second argument is that the court committed a clear error of law
by “reinstating a one-sided and disputed narrative of the facts” and “implying the
evidence did not support a violation of Plaintiffs’ right to equal protection.” (Id. at
5.) This argument is without merit because the court’s ruling that the Defendants
were entitled to qualified immunity was based on the conclusion that “the right at
issue in this case was not clearly established at the time of the alleged violation.”
(Doc. 238, p. 25.) Thus, the court’s statement of the material facts in the case was
irrelevant to its conclusion with respect to qualified immunity.
Plaintiffs’ third argument is that the court committed a clear error of law in
determining that the right at issue was not clearly established at the time of the
alleged violation. (Doc. 245, p. 9.) In the relevant portion of the court’s opinion,
the court noted that it could look to Supreme Court cases, controlling circuit
precedent, or a robust consensus of persuasive authorities from other circuits to
determine whether the right at issue was clearly established. (Doc. 238, p. 23.)
Applying that standard, the court held that Plaintiffs had failed to show that the
right at issue was clearly established because the only case Plaintiffs cited that was
factually on point was Desi’s Pizza, Inc. City of Wilkes-Barre, No. 01-CV-00480,
2006 WL 2460881 (M.D. Pa. Aug. 23, 2006), which could not establish a right
because it was an unpublished case. (Doc. 238, p. 24 (citing El v. City of
Pittsburgh, 975 F.3d 327, 340 (3d Cir. 2020)).
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Plaintiffs argue that this conclusion constitutes a clear error of law because it
“misapprehend[s] the import of Desi’s Pizza.” (Doc. 245, p. 9.) Desi’s Pizza,
according to Plaintiffs, states that the right at issue was clearly established, it does
not itself establish the right. (Id.) This argument is without merit. Controlling
case law from the Third Circuit clearly states that unpublished cases cannot
establish a right for purposes of qualified immunity. See El, 975 F.3d at 340–41.
Plaintiffs do not cite any case law to support an exception to this rule where a case
states that a right exists rather than establishing the right itself. Their contrary
reading of Desi’s Pizza is, therefore, a distinction without a difference.
Plaintiffs’ fourth argument is that the court “overlooked that Desi’s Pizza
was brought against the City of Wilkes-Barre, the lead defendant in this action,
such that the individual City Defendants would have known of the case regardless
of whether it was published.” (Doc. 245, p. 9.) This argument is also without
merit, as the court’s opinion clearly shows that it did not overlook the fact that
Wilkes-Barre was the defendant in Desi’s Pizza. (See Doc. 238, p. 24 (describing
Desi’s Pizza as “an unpublished case from this district in which the owners of a
pizza shop in Wilkes-Barre alleged that Wilkes-Barre and various Wilkes-Barre
employees had violated its constitutional rights by selectively enforcing local laws
against the pizza shop based on the race of the pizza shop’s customers” (emphasis
added)).)
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Plaintiffs’ fifth argument is that the court “erred in not recognizing that, by
2009, the wrongfulness of using State power to destroy a lawful business for racial
reasons was obvious.” (Doc. 245, p. 10.) The court disagrees that it made such an
error. In defining the right at issue for purposes of a qualified immunity analysis, a
court must not define the right at issue at a “high level of generality.” Mullenix v.
Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 742
(2011)). That is exactly what Plaintiffs invite the court to do here, and their
argument is accordingly rejected.
D. Plaintiffs’ Motion for Reconsideration Is Denied to the Extent that it
Seeks to Reinstate the Tortious Interference Claim Against
Defendant Murphy
Plaintiffs’ final argument for reconsideration seeks to reinstate the tortious
interference claim against Defendant Murphy. (Doc. 245, p. 14.) The court
granted summary judgment to Murphy on the tortious interference claim because
there was “no evidence in the record from which a reasonable finder of fact could
conclude that [he] exercised direct control over the Wilkes-Barre Police
Department or caused the increased police presence outside of The Mines.” (Doc.
238, p. 34.) Plaintiffs argue that this was error because Defendant Leighton
testified in his deposition that Murphy oversaw the Wilkes-Barre Police
Department. (Doc. 245, p. 14.)

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Plaintiffs’ argument is rejected because Plaintiffs did not introduce the
evidence that Murphy oversaw the police department at any point before the
court’s decision, either before or after the appeal to the Third Circuit. (See Doc.
159, pp. 91–122; Doc. 226, pp. 1–24.) To the contrary, Plaintiffs’ brief following
the remand from the Third Circuit only mentioned Defendants Leighton, Dessoye,
O’Hara, and McGonigle as Defendants who could be held liable for tortious
interference. (See Doc. 226, p. 14 (“the excessive law enforcement near The
Mines was created by City and College defendants, including the Mayor, Police
Chief, College President O’Hara, and Dean McGonigle, working together.”).) The
court will therefore reject the argument because a motion for reconsideration
cannot be used to introduce “evidence that could have been proffered prior to the
issuance of the order in question.” Qazizadeh v. Pinnacle Health Sys., 214 F.
Supp. 3d 292, 295–96 (M.D. Pa. 2016) (quoting McDowell Oil Serv., Inc. v.
Interstate Fire & Cas. Co., 817 F. Supp. 538, 541 (M.D. Pa. 1993)).
E. Plaintiffs’ Motion for Certificate of Appealability Is Denied
Finally, the court will consider Plaintiffs’ argument that if reconsideration is
not granted, the court should issue a certificate of appealability to allow Plaintiffs
to immediately appeal to the Third Circuit. (Doc. 245, pp. 12–14.)
A district court may certify an order for appeal if the court finds that it
“involves a controlling question of law as to which there is substantial ground for
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difference of opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Thus,
certification under § 1292(b) is only proper when “(1) the issue involve[s] a
controlling question of law; (2) as to which there are substantial grounds for
difference of opinion; and (3) an immediate appeal of the order may materially
advance the ultimate termination of the litigation.” Simon v. United States, 341
F.3d 193, 199 (3d Cir. 2003). The party seeking a certificate of appealability bears
the burden of showing that the certificate should issue. Consumer Fin. Protection
Bureau v. Navient Corp., __ F. Supp. 3d __, No. 3:17-CV-00101, 2021 WL
772238, at *3 (M.D. Pa. Feb. 26, 2021) (citing Orson Inc. v. Miramax Film Corp.,
867 F. Supp. 319, 320 (E.D. Pa. 1994)).
Plaintiffs have not met that burden in this case. The only argument Plaintiffs
make as to why a certificate of appealability should issue is that the court’s
decision “differ[s] from the holding of Desi’s Pizza.” (Doc. 245, p. 13.) Plaintiffs
have not, however, shown that there are “substantial grounds for difference of
opinion” on that issue, Simon, 341 F.3d at 199, which ordinarily requires a
showing that the case raises “one or more difficult and pivotal questions of law not
settled by controlling authority.” Knopick v. Downey, 963 F. Supp. 2d 378, 398
(M.D. Pa. 2013) (quoting Knipe v. SmithKline Beecham, 583 F. Supp. 2d 553, 599
(E.D. Pa. 2008)). Here, as noted above, the question of whether to follow Desi’s
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Pizza is settled by controlling precedent in El holding that unpublished cases
cannot establish a right for purposes of qualified immunity. See El, 975 F.3d at
340–41. Plaintiffs’ motion for certificate of appealability is accordingly denied.
CONCLUSION
For the foregoing reasons, Defendants’ motions for reconsideration are
denied and Plaintiffs’ motion for reconsideration is granted in part and denied in
part. An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: August 10, 2021

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