BLACKBEAR ENERGY SERVICES, INC. v. YOUNGSTOWN PIPE & STEEL, LLC
MEMORANDUM OPINION re #102 MOTION for Reconsideration re #71 Order on Motion to Dismiss/Lack of Prosecution, filed by YOUNGSTOWN PIPE & STEEL, LLC. Signed by Chief Judge Joy Flowers Conti on 8/14/17. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
) Civil Action No. 15-50
YOUNGSTOWN PIPE & STEEL, LLC
d/b/a DNV ENERGY, LLC
Defendant and Counterclaimant. )
BLACK BEAR ENERGY SERVICES,
CONTI, Chief District Judge.
Pending before the court is a motion by defendant Youngstown Pipe and Steel, LLC
(“defendant” or “YPS”) for reconsideration of this court’s November 28, 2016 order (the
“order”) dismissing the claims of plaintiff Black Bear Energy Services, Inc. (“plaintiff” or
“Black Bear”) without prejudice. YPS requests that the court reconsider this decision and dismiss
Black Bear’s complaint with prejudice. (ECF No. 102.) On June 13, 2017, Black Bear filed a
brief in opposition to plaintiff’s motion. (ECF No. 110) On July 31, 2017, YPS filed a reply.
(ECF No, 128.) For the reasons stated below, the court will deny YPS’s motion for
On January 13, 2015, Black Bear filed its complaint against YPS. (ECF No. 1.) Due to
financial loss and an economic downturn in plaintiff’s industry, Black Bear was unable to pay its
counsel to continue prosecuting its claims against YPS. (ECF No. 88 ¶ 2.) At a status conference
on June 29, 2016, plaintiff’s then-counsel represented to this court that plaintiff had ceased doing
business, surrendered its assets to its lender, and hired counsel to discuss the possibility of filing
for bankruptcy. (Minute Entry, 6/29/2016.) Plaintiff’s then-counsel also stated that he would
likely be filing a motion to withdraw shortly thereafter. Approximately three months later, on
September 19, 2016, counsel submitted a motion to withdraw as attorney for Black Bear. (ECF
No. 56.) On September 30, 2016, this court granted the motion to withdraw. (ECF No. 59.)
Following the withdrawal of its counsel, this court ordered plaintiff to have new counsel
enter an appearance or show cause on or before November 2, 2016, as to why its claims should
not be dismissed for failure to prosecute. 1 (ECF No. 61.) Plaintiff failed to respond to this order.
On November 22, 2016, defendant filed a motion to dismiss for lack of prosecution. (ECF No.
68.) The court granted defendant’s motion and dismissed plaintiff’s claims without prejudice on
November 28, 2016. (ECF No. 71.) The dismissal was not based on the merits of Black Bear’s
On May 23, 2017, nearly six months after this court dismissed Black Bear’s claims
without prejudice, plaintiff filed a motion for reconsideration requesting that this court dismiss
Black Bear’s complaint with prejudice. (ECF No. 102.) Plaintiff argues that reconsideration
should be granted because new evidence is available and because the factors articulated by the
Third Circuit Court of Appeals for determining when a dismissal with prejudice is appropriate
weigh in favor of dismissing Black Bear’s complaint with prejudice. (ECF No. 103.) Defendant
argues that plaintiff does not meet the standard for granting a motion for reconsideration and that
dismissal with prejudice was not warranted in this case. (ECF No. 110.)
Plaintiff is a corporation, and, therefore, could not proceed in this matter without counsel. See Simbraw, Inc. v.
United States, 367 F.2d 373, 374 (3d Cir. 1966).
Standard of Review
“Normally, motions for reconsideration are decided under Federal Rules of Civil
Procedure 59(e) or 60(b).” In re Nat’l Forge Co., 326 B.R. 532, 541 (W.D. Pa. 2005). Those
rules do not apply to plaintiff’s motion for reconsideration, however, because plaintiff is seeking
reconsideration of an interlocutory ruling, rather than a final judgment or order. Id. “It is wellestablished that the appropriate Rule under which to file motions for reconsideration of an
interlocutory order is Rule 54(b).” Cezair v. JP Morgan Chase Bank N.A., Civ. Action No. 132928, 2014 WL 4955535, at *1 (D.Md. Sept. 30, 2014); see Qazizadeh v. Pinnacle Health Sys.,
214 F.Supp.3d 292, 298 (M.D. Pa. 2016) (“[M]otions for reconsideration of interlocutory
orders—whether denials of summary judgment, grants of partial summary judgment, or any
other non-final orders—are motions under Federal Rule of Civil Procedure 54(b).”). Federal
Rule of Civil Procedure 54(b) provides, in pertinent part:
[A]ny 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
FED. R. CIV. P. 54(b).
A motion for reconsideration with respect to a final order or judgment must rely on one
of three grounds: (1) an intervening change in the law; (2) the availability of new evidence; or
(3) the need to correct clear error of law or prevent manifest injustice. N. River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). The purpose of such a motion is
“to correct manifest errors of law or fact or to present newly discovered evidence.” Bootay v.
KBR, Inc., 437 F.App’x 140, 146-47 (3d Cir. 2011) (citing Harsco Corp. v. Zlotnicki, 779 F.2d
906, 909 (3d Cir. 1985)). A motion for reconsideration is not to be used to relitigate or “rehash”
issues the court already decided, or to ask a district court to rethink a decision it, rightly or
wrongly, already made. Williams v. City of Pittsburgh, 32 F.Supp.2d 236, 238 (W.D. Pa. 1998);
Reich v. Compton, 834 F.Supp. 753, 755 (E.D. Pa. 1993), aff’d in part, rev’d in part, 57 F.3d
270 (3d Cir. 1995); Keyes v. Nat’l R.R. Passenger Corp., 766 F.Supp. 277, 280 (E.D. Pa. 1991).
In order to be successful on a motion for reconsideration, the movant must demonstrate a
“definite and firm conviction that a mistake has been committed,” or that the court overlooked
arguments that were previously made. United States v. Jasin, 292 F.Supp.2d 670, 676 (E.D. Pa.
“‘While the standards articulated in Rule[ ] ... 60(b) are not binding in an analysis of Rule
54(b) motions, courts frequently look to these standards for guidance in considering such
motions.’” Ampro Computers, Inc. v. LXE, LLC, Civ. Action No. 2016 WL 3703129, at *2
(D.Del. July 8, 2016) (quoting Cezair, 2014 WL 4955535, at *1). 2 Reconsideration of
interlocutory orders, however, “may be had even if the movant cannot show an intervening
change in controlling law, the availability of new evidence that was not available when the court
issued the underlying order, or the ‘need to correct a clear error of law or fact or to prevent
manifest injustice.’” Qazizadeh, 214 F.Supp.3d at 298 (quoting Max's Seafood Café v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). “[T]he court may permit reconsideration whenever
‘consonant with justice to do so.’” Qazizadeh, 214 F.Supp.3d at 298 (quoting St. Mary's Area
Water Auth. v. St. Paul Fire and Marine Ins. Co., 472 F.Supp.2d 630, 632 (M.D. Pa. 2007));
United States v. Jerry, 487 F.2d 600, 604 (3d Cir. 1973) (“‘[I]f an interlocutory decree be
involved, a rehearing may be sought at any time before final decree, provided due diligence be
“An alleged clear error of fact, which meets the stringent requirements for reconsideration of
final orders…logically meets the lesser threshold for reconsideration of interlocutory orders.”
Qazizadeh v. Pinnacle Health Sys., 214 F.Supp.3d 292, 298 (M.D. Pa. 2016).
employed and a revision be otherwise consonant with equity.’”) (quoting John Simmons Co. v.
Grier Bros. Co., 258 U.S. 82, 90-91 (1922)).
While “district courts have more discretion in reconsidering interlocutory orders than in
revising final judgments,” Foster v. Westchester Fire Ins. Co., Civ. Action No. 09-1459, 2012
WL 2402895, at *4 (W.D. Pa. June 26, 2012), the Third Circuit Court of Appeals has held that
“[t]he trial court must, of course, exercise this authority in a responsible way, both procedurally
and substantively,” and that “[e]ffective trial court management requires a presumption against
reconsideration of interlocutory decisions.” In re Anthanassious, 418 F. App'x 91, 96 (3d Cir.
2011). Thus, courts should exercise this inherent power with a “light hand.” Foster, 2012 WL
2402895, at *4 n.1. In discussing the scope of a district court’s discretion to reconsider an
interlocutory decision, the Third Circuit Court of Appeals has held that while “ ‘[a] court has the
power to revisit prior decisions of its own or of a coordinate court in any circumstance . . . as a
rule courts should be loathe to do so in the absence of extraordinary circumstances such as where
the initial decision was clearly erroneous and would make a manifest injustice.’ ” In re Pharmacy
Benefit Managers, 582 F.3d 432, 439 (3d Cir. 2009) (quoting Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 816 (1988)).
The court is not persuaded that in dismissing Black Bear’s complaint without prejudice
“a mistake [was] committed.” Jasin, 292 F.Supp.2d at 676. “[D]ismissals with prejudice or
defaults are drastic sanctions, termed ‘extreme’ by the Supreme Court, and are to be reserved for
comparable cases.” Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867–68 (3d Cir. 1984)
(citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976)). Here,
plaintiff’s complaint was dismissed for failure to prosecute because plaintiff, a corporation, was
not represented by counsel and a corporation may not appear pro se in federal litigation. (ECF
No. 71.); see Simbraw, Inc. v. United States, 367 F.2d 373, 374 (3d Cir. 1966). Plaintiff’s case
was not dismissed on the merits; rather, it was dismissed based on a procedural requirement.
YPS argues that Black Bear engaged in willful misconduct by not obtaining new counsel. Under
all the circumstances asserted, however, the court is not convinced that plaintiff’s failure to
obtain new counsel rises to the “extreme” level necessary for dismissing a case with prejudice,
and courts have found that “dismissal without prejudice is a more easily justified sanction for
failure to prosecute.” Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984) (emphasis added);
compare Joseph v. Pennsylvania Dep't of Pub. Welfare, 602 F. App'x 898, 901 (3d Cir. 2015)
(upholding a district court’s decision to dismiss a complaint for failure to prosecute, in part,
because the court did not “tak[e] the drastic step of dismissing [the] complaint with prejudice.”)
with Barger v. Walton, 260 F. App'x 476, 478 (3d Cir. 2008) (reversing a district court’s decision
to dismiss a complaint with prejudice for failure to prosecute, in part, because “the District Court
could have dismissed the complaint without prejudice, which would have communicated the
importance of timely executing of service of process forms, while avoiding a complete dismissal
on the merits with prejudice.”).
The court finds that dismissal without prejudice was an appropriate response to Black
Bear’s failure to timely retain counsel, and that, consequently, the drastic sanction of dismissal
with prejudice was not warranted in this case.
For the reasons set forth above, the court finds that defendant did not show that this
matter presents an “extraordinary circumstance” worthy of reconsideration under Rule 54(b).
Furthermore, defendant did not show that dismissal with prejudice was warranted in this case.
The court, therefore, will deny defendant’s motion for reconsideration. An appropriate order will
Dated: August 14, 2017
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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