The Procter & Gamble U.S. Business Services Company et al v. Estate of Jefffrey Rolison et al

Filing 136

MEMORANDUM (Order to follow as separate docket entry) re 132 First MOTION to Reinstate Action and for Reconsideration filed by Estate of Jefffrey Rolison. Signed by Honorable Robert D. Mariani on 9/9/21. (jam)

Case 3:17-cv-00762-RDM Document 136 Filed 09/09/21 Page 1 of 9

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THE PROCTER & GAMBLE U.S. BUSINESS
SERVICES COMPANY, as Plan Administrator : CIVIL ACTION NO. 3:17-CV-762
and on Behalf of THE PROCTER & GAMBLE : (JUDGE MARIANI)
PROFIT SHARING TRUST AND
EMPLOYEE STOCK OWNERSHIP PLAN
and THE PROCTER & GAMBLE SAVINGS
PLAN,
Plaintiff,
V.

ESTATE OF JEFFREY ROLISON,
Deceased, MARGARET M. LOSINGER,
and MARY LOU MURRAY,
Defendants.
MEMORANDUM OPINION
I. INTRODUCTION
Defendant Estate of Jeffrey Rolison's Motion to Correct Patent Error and For
Reconsideration of the Estate of Jeffrey Rolison (Doc. 132) is pending before the Court.
With this motion, Defendant Estate of Jeffrey Rolison ("Defendant Estate") seeks relief on
two grounds. First, Defendant Estate requests that the Court correct its "erroneous
disposition" of Defendant Estate's crossclaim against Defendant Margaret M. Losinger
("Defendant Losinger") as set out in the Court's April 6, 2021, Order. (Doc. 132 at 1.)
Second, pursuant to Federal Rule of Civil Procedure 60(b) and Local Rule 7.10 of the Local
Rules of Court of the Middle District of Pennsylvania, Defendant Estate seeks

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reconsideration of the Court's determination regarding Defendant Estate's Motion to Certify
Order for Interlocutory Appeal (Doc. 112). (Doc. 132 at 1.) For the reasons discussed
below, the Court will grant the motion as modified as to Defendant Estate's crossclaim and
deny the motion for reconsideration of the Motion to Certify Order for Interlocutory Appeal
(Doc. 112). 1
II. DISCUSSION
A. Defendant Estate's Crossclaim Against Defendant Losinger
A review of relevant documents indicates that, although Defendant Losinger's motion
for summary judgment sought dismissal of Defendant Estate's crossclaim (see Doc. 84 ~ 9),
Defendant Losinger did not address the crossclaim in her supporting brief (Doc. 85) or raise
the issue in her supplemental brief in support of the motion (Doc. 96). Therefore, the merits
of the crossclaim against Defendant Losinger were not briefed by the parties and the Court
did not address the merits of Defendant Estate's crossclaim against Defendant Losinger in
the Court's Memorandum Opinion of July 21, 2020. (See Doc. 103 at 9-17.) However, in
the July 21, 2020, Memorandum Opinion's "Conclusion" section, the Court stated that
"summary judgment in favor of Losinger at to P&G's lnterpleader action and the Estate's
crossclaim is appropriate at this time." (Doc. 103 at 17.) In the separately filed Order, the

1 Defendant

Estate failed to file a supporting brief with its motion and , therefore, the motion is
improperly filed pursuant to Local Rule 7.10 of the Local Rules of Court of the Middle District of
Pennsylvania. Despite this deficiency, the Court addresses the merits of Defendant Estate's improperly
filed motion because the Court recognizes the need to correct the record regarding Defendant Estate's
crossclaim against Defendant Losinger.

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Court stated that "Defendant Margaret M. Losinger's ("Losinger") Motions for Summary
Judgment as to Plaintiff Procter & Gamble U.S. Business Services Company's interpleader
action, and the Defendant Estate of Jeffrey Rolison's ("the Estate") crossclaim (Docs . 26,
84, 96) are GRANTED." (Doc. 104 ~ 1.) Because the Court did not address the merits of
the crossclaim by analysis in its opinion, there should have been no disposition of the
crossclaim in the Court's conclusion (Doc. 103 at 17) or in its accompanying Order (Doc.
104 ~ 1).
Defendant did not raise the issue of the disposition of the crossclaim in the July 30,
2020, Motion for Reconsideration of the Estate of Jeffrey Rolison (Doc. 105) seeking
reconsideration of the Court's grant of summary judgment to Defendant Losinger. Nor did
Defendant Estate mention the crossclaim in its supporting brief (Doc. 106) or reply brief
(Doc. 109). Thus, relying on the uncontested July 21, 2020, Order regarding Defendant
Estate's crossclaim (see Doc. 104 ~ 1), the Court noted in its consideration of Defendant
Estate's Motion to Certify Order for Interlocutory Appeal (Doc. 112) that summary judgment
had been granted to Defendant Losinger on Defendant Estate's crossclaim. (Doc. 125 at
7.) This incorrect conclusion was not material to the disposition of Defendant Estate's
motion. (See id. at 8.)
Based on the foregoing, the Court recognizes the need for correction of the record.
Accordingly, the Court will order that reference to the disposition of Defendant Estate's

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crossclaim against Defendant Losinger be stricken from the relevant documents (Doc. 103
at 17; Doc. 104 ,r1; Doc. 125 at 7).
B. Reconsideration of Motion to Certify for Interlocutory Appeal

Defendant Estate seeks reconsideration of the Court's denial of his Motion for
Interlocutory Appeal (Doc. 112) pursuant to Rule 60 of the Federal Rules of Civil Procedure
and Local Rule 7.10 of the Local Rules of Court of the Middle District of Pennsylvania.
(Doc. 132 at 1.) Defendant Estate's Motion for Interlocutory Appeal (Doc. 112) requested
that the Court certify its July 21 , 2020, Memorandum and Order (Docs. 103, 104) and
September 24, 2020, Order (Doc. 111) for interlocutory appeal. 2
Rule 60 of the Federal Rules of Civil Procedure addresses "Relief From a Judgment
or Order." Rule 60(a) allows the Court to "correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a judgment, order, or other part of the
record." Fed. R. Civ. P. 60(a) . Rule 60(b) allows a party to seek relief from a final judgment
under a limited set of circumstances, including fraud, mistake, and newly discovered
evidence. See Fed . R. Civ. P. 60(b) ; Gonzales v. Crosby, 545 U.S. 524, 528 (2005). The
general purpose of the Rule is "to strike a proper balance between the conflicting principles
that litigation must be brought to an end and that justice must be done." Boughner v. Secy
of Health, Educ. and Welfare, 572 F.2d 976, 977 (3d Cir. 1978). The decision to grant or

2 Defendant

Estate mistakenly identified Document 111 as the Court's Order of "October 24, 2020"
rather than September 24, 2020. (Doc. 112 at 1.)

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deny relief pursuant to Rule 60(b) lies in the "sound discretion of the trial court," and is
guided by accepted legal principles applied in light of all relevant circumstances. Pierce
Associates, Inc. v. Nemours Foundation, 865 F.2d 530, 548 (3d Cir. 1988). "A motion
for reconsideration is not to be used as a means to reargue matters already argued and
disposed of .. . [n]or is it to be used to put forth additional arguments which could have been
made but which the party neglected to make before judgment." Waye v. First Citizen's Nat.
Bank, 846 F. Supp. 310,314 (M.D. Pa. 1994) (citation omitted).
The first five subdivisions of Rule 60(b) delineate specific circumstances which may
justify relief from final judgment. The final subdivision, 60(b)(6), serves as the "catchall
provision" of Rule 60(b). See Coltec Industries, Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir.
2002). Rule 60(b)(6) permits a party to seek reconsideration for "any other reason [other
than the specific circumstances set out in Rules 60(b )( 1)-(5) ] that justifies relief' from the
operation of the judgment. See Fed. R. Civ. P. 60(b). Further, Rule 60(b)(6) "vests power in
courts adequate to enable them to vacate judgments whenever such action is appropriate to
accomplish justice." Klapport v. United States, 335 U.S. 601 , 614-15 (1949).
In the introductory section of its supporting brief, Defendant Estate asserts that the
Court improperly denied its Motion to Certify for Interlocutory Appeal brought pursuant to 12
U.S.C. § 1292(b) (Doc. 112):
Consistently with its prior treatment of the Estate's motions, the Court avoided
proper decision on the Estate's Motion to Certify by avoiding consideration of
its actual arguments, substituting instead its own rationale for summary
judgment (or paper tiger). By this avoidance, the Court first implicitly
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acknowledges the strength of the Estate's case. The Court's avoidance is
particularly pronounced given the purposes and legal analysis animating
decision on request to pursue a 12 U.S.C. § 1292(b). That statutory provision
is concerned specifically to allow an immediate appeal to resolve "a controlling
question of law as to which there is substantial ground for difference of opinion"
for which "an immediate appeal ... may materially advance the ultimate
termination of the litigation." There cannot be a fair determination under that
standard if the Court does not even consider the questions proffered for
resolution by appeal. The Court's departure from the 12 U.S.C. § 1292(b)
decisional standards violated the Estate's rights to due process.
Reconsideration should be granted.
(Doc. 135 at 2.)
In the "Legal Argument" section of its brief, Defendant Estate posits that "[i]ts
arguments never having been reached by the Court, the Estate does not repeat but
incorporates by reference its arguments of its Motion to Certify. Its basis for requesting
reconsideration is blunt and simple: the Court never considered them and thus denied it due
process." (Doc. 135 at 3.) The remainder of the single paragraph devoted to "Legal
Argument" of the issue criticizes the Court's rationale for granting summary judgment. (Id.
at 3-4.) Subsections of the "Legal Argument" portion of the brief do not address Rule 60 or
reconsideration. (See Doc. 135 at 4-12.) Rather, with the exception of Defendant Estate's
brief argument regarding the crossclaim addressed in the preceding section of this
Memorandum Opinion, Defendant Estate's legal argument is devoted to criticism of the
Court's application of the substantial compliance doctrine in the disposition of its summary
judgment motion. (See Doc. 135 at 4-5, 6-12.)

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First, the Court notes that pursuant to Local Rule 7.8(a) of the Local Rules of Court
of the Middle District of Pennsylvania "[n]o brief may incorporate by reference all or any
portion of any other brief." Moreover, Defendant Estate does not assert that it is entitled to
relief under any specific provision of Rule 60, nor does Defendant Estate cite any law
governing its reconsideration request.3 The Court will not sua sponte assign a specific legal
basis for Defendant Estate's counseled motion when the one paragraph devoted to "Legal
Argument" of the issue does not include a single citation to the record or relevant law. (See
Doc. 135 at 3-4.)
Notwithstanding this determination, assuming arguendo that review of the merits of
Defendant Estate's pending motion regarding interlocutory appeal were warranted , the
Court disagrees with Defendant Estate's assessment of the analysis of interlocutory appeal
issues addressed in the April 6, 2021 , Memorandum Opinion (Doc. 125). Contrary to
Defendant Estate's assertion that the Court did not consider its arguments, the Court
considered arguments presented, cited appropriate legal standards, distinguished caselaw
upon which Defendant Estate relied, and concluded that certification of an interlocutory
appeal was not warranted. (Doc. 125 at 10-15.) Although Defendant Estate maintains that
"the unique facts of this case present a basis for the further development of the law" (Doc.
132 ~ 28), the Court finds no mistake or error in the application of existing law to this case

3 Although

the Motion to Correct Patent Error and For Reconsideration of the Estate of Jeffrey
Rolison (Doc. 132) states that reconsideration is sought pursuant to "Civil Rule 60 and LR 7.10" (Doc. 132
at 1), Defendant Estate's supporting brief (Doc. 135) does not mention either rule.

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as analyzed in the Memorandum Opinion addressing the Motion for Interlocutory Appeal.
(See Doc. 125 at 2-15.) Further, because a motion for reconsideration "is not to be used as
a means to reargue matters already argued and disposed of/ Waye, 846 F. Supp. at 314,
1

1

Defendant Estate Counsel s ongoing criticism of the Court s adjudication of its summary
1

judgment motion is of no legal significance. 4 Thus, Defendant Estate s motion regarding
reconsideration of the Court s April 6, 2021, Memorandum Opinion and Order (Docs. 125,
1

126) is properly denied. 5
Ill. CONCLUSION
For the foregoing reasons, the Motion to Correct Patent Error and For
Reconsideration of the Estate of Jeffrey Rolison (Doc. 132) will be granted as modified in
part and denied in part. The motion will be granted as modified insofar as references to the
1

disposition of Defendant Estate's crossclaim against Defendant Losinger in the Court s
Memorandum Opinion and Order of July 21, 2020 (Doc. 103 at 17; Doc. 104 ~ 1) and

4 Defendant

Estate counsel's claims of partiality and derogatory remarks about the Court's handling
of this case (see, e.g., Doc. 135 at 2, 4, 5, 6) exhibit an unacceptable and reckless lack of professionalism.
Regarding a brief in which counsel "repeatedly cast[] aspersions on the District Court's analytic ability," a
panel of the Court of Appeals for the Third Circuit commented that the aspersions "utterly fail to advance . .
. legal arguments ... [and] reflect poorly on .. . counsel." Swinka Realty v. Lackawanna County Tax Claim
Bureau, 688 F. App'x 146, 148 (3d Cir 2017) (not precedential). Swinka added that counsel was "ethically
bound to avoid reckless aspersions on the integrity or qualifications of a judge." Id. at 148 n.3 (citing Pa.
Rule Prof. Conduct 8.2(a)). Swinka s assessment reinforces this Court's caution that, going forward ,
Defendant Estate's counsel is strongly advised to alter his stylistic approach in submissions to the Court.
1

5

Although the Court denied the Motion for Interlocutory Appeal on substantive grounds, the Court
also identified Federal Rule of Civil Procedure 54(b) as a potential procedural vehicle to allow appeal of the
Court's decision. (See Doc. 125 at 8 n.2.)

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Memorandum Opinion of April 6, 2021 (Doc. 125 at 7) are stricken. The motion will be
denied in all other respects. Thus, Defendant Estate's counterclaim against Plaintiff and its
crossclaim against Defendant Losinger remain pending before the Court. A separate Order
shall be filed simultaneously with this Memorandum O i io

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