PRESCOTT v. R&L CARRIERS, INC. et al
Filing
225
MEMORANDUM OPINION AND ORDER denying 215 Motion for Reconsideration; denying 217 Motion for Reconsideration, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 8/31/2015. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILLIAM M. PRESCOTT,
)
)
Plaintiff,
)
)
CIVIL ACTION NO. 3:11-203
)
~
)
R&L TRANSFER, INC., GREENWOOD,
MOTOR LINES d/b/a R&L CARRIERS,
and R&L CARRIERS SHARED
SERVICES, LLC,
JUDGE KIM R. GIBSON
)
)
)
)
)
Defendants.
)
MEMORANDUM OPINION AND ORDER
I.
Introduction
Pending before the Court in this matter are two motions: (1) Plaintiff's motion
(ECF Nos. 215) for reconsideration of this Court's Order docketed at ECF No. 214, and (2)
Plaintiff's motion (ECF No. 217) for reconsideration of this Court's Order docketed at ECF
No. 216. Defendants filed a single response in opposition to both motions. (ECF No. 218).
The motions have been fully briefed and are now ripe for disposition. For the reasons
stated below, the Court will DENY Plaintiff's motions for reconsideration.
II.
Background
This case arises from personal injuries sustained by Plaintiff after the tractor-trailer
that he was driving left the roadway and crashed in an embankment. Plaintiff alleges that
Clark Mead, an employee of R&L who was also driving a tractor-trailer, forced Plaintiff
off the road, causing the accident. The Court previously set forth the relevant background
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of this case in its memorandum opinion on the parties' cross-motions for summary
judgment. (See ECF No. 170 at 2-6). Trial in this matter is currently scheduled to begin on
September 8, 2015. (See ECF No. 204). The Court has issued seven orders (ECF Nos. 186,
188, 197, 205, 207, 214, and 216) collectively disposing of the parties' thirty motions in
limine. Plaintiff now asks the Court to reconsider its rulings concerning three of those
motions, docketed at ECF Nos. 120, 190, and 199.
III.
Legal Standard
"The purpose of a motion for reconsideration is 'to correct manifest errors of law
or fact or to present newly discovered evidence."' Lazaridis v. Wehmer, 591 F. 3d 666, 669
(3d Cir. 2010) (quoting Max's Seafood Cafe v. Quinteros, 176 F. 3d 669, 677 (3d Cir. 1998)). A
motion for reconsideration may only be granted if the moving party demonstrates at least
one of the following grounds:
(1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct clear error of law or prevent
manifest injustice. Lazaridis, 591 F. 3d at 669 (citing N. River Ins. Co. v. CIGNA Reinsurance
Co., 52 F. 3d 1194, 1218 (3d Cir. 1995)); Max's Seafood Cafe, 176 F. 3d at 677.
Because courts have a strong interest in the finality of their judgments, a motion
for reconsideration is inappropriate to express mere dissatisfaction with a court's
previous ruling. D'Angio v. Borough of Nescopeck, 56 F. Supp. 2d 502, 504 (M.D. Pa. 1999);
Velazquez v. UPMC Bedford Mem'l Hasp., 338 F. Supp. 2d 609, 611 (W.D. Pa. 2004)
("dissatisfaction with [a court's] ruling is not a proper basis for reconsideration").
Furthermore, "a motion for reconsideration is not to be used as a means to reargue
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matters already argued and disposed of or as an attempt to relitigate a point of
disagreement between the Court and the litigant." Ogden v. Keystone Residence, 226 F.
Supp. 2d 588, 606 (M.D. Pa. 2002); see also Lazaridis, 591 F. 3d at 669 (upholding a district
court's denial of a motion for reconsideration because advancing "the same arguments
that were in [the movant's] complaint and motions" was "not a proper basis for
reconsideration").
In other words, it is improper on a motion for reconsideration to
restyle or reargue issues previously presented. Pahler v. City of Wilkes-Barre, 207 F. Supp.
2d 341, 355 (M.D. Pa. 2001); see also Gadley v. Ellis, No. 3:13-cv-17, 2015 WL 2345619, at *2
(W.D. Pa. May 15, 2015). Instead, motions for reconsideration allow district courts the
opportunity to correct their own alleged errors; they do not to provide litigants "a second
bite at the apple." U.S. ex rei. Bartlett v. Ashcroft, No. 3:04-cv-57, 2014 WL 4187214, at *2
(W.D. Pa. Aug. 21, 2014) (quoting Bhatnagar v. Surrendra Overseas Ltd., 52 F. 3d 1220, 1231
(3d Cir. 1995)).
IV.
Discussion
In accordance with the legal principles set forth above, Plaintiff is entitled to
reconsideration of the Court's previous rulings on the motions in limine only if he can
establish one of the following three grounds to justify such relief: (1) an intervening
change in the controlling law; (2) the availability of new evidence; or (3) the need to
correct a clear error of law or prevent manifest injustice. See Tedford v. Beard, No. 09-cv409, 2014 WL 4828873, at *14 (W.D. Pa. Sept. 29, 2014). However, Plaintiff has failed to
establish any one of these grounds.
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Plaintiff has not claimed that he has any new evidence or additional information.
The factual record before the Court is complete and Plaintiff has not offered any new
evidence with regard to his motions for reconsideration.
Likewise, Plaintiff has not
presented the Court with any change in law. Further, Plaintiff has not made a persuasive
argument that this Court made a clear error of law or that manifest injustice would result.
Instead, Plaintiff has simply reasserted the same arguments made before the Court on the
original motions in limine. Accordingly, Plaintiff's motions for reconsideration will be
denied because "a motion for reconsideration is not a tool tore-litigate and reargue issues
which have already been considered and disposed of by the court."
Westfield Ins. v.
Detroit Diesel Corp., No. 3:10-cv-100, 2013 WL 226883, at *3 (W.D. Pa. Jan. 18, 2013). The
Court will briefly address Plaintiff's arguments as to each motion in limine for which he
seeks reconsideration.
A.
Testimony of Michael Zabel (ECF No. 190)
In its Order at ECF No. 2-r4, this Court granted Defendants' motion (ECF No. 190)
to exclude testimony of Defendants' attorney Michael Zabel. As explained in the Order,
the Court will exclude the testimony of Defendants' counsel, Michael Zabel, from the trial
in this matter under the attorney-client privilege 1 because the conversation between Zabel
1
The Court set forth the legal principles governing the privilege as follows:
The attorney-client privilege is one of the oldest privileges for confidential
communications known to the law. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). "Its
purpose is to encourage full and frank communication between attorneys and their clients and
thereby promote broader public interests in the observance of law and administration of justice."
Id.; see also Nesselrotte v. Allegheny Energy, Inc., 242 F.R.D. 338, 340 (W.O. Pa. 2007). Under Rule 501
of the Federal Rules of Evidence, a district court exercising diversity jurisdiction applies the law of
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and French constitutes a communication between an attorney and his client, as French is
an employee of Defendant R&L and the conversation was made in anticipation of the
privilege from the state in which it sits. Samuelson v. Susen, 576 F. 2d 546, 549 (3d Cir. 1978).
Pennsylvania defines the attorney-client privilege by statute:
In a civil matter counsel shall not be competent or permitted to testify to
confidential communications made to him by his client, nor shall the client be
compelled to disclose the same, unless in either case this privilege is waived
upon the trial by the client.
42 Pa. Cons. Stat. Ann. ยง 5928; see also Koen Book Distributors, Inc. v. Powell, Trachtman, Logan, Carrie,
Bowman & Lombardo, P.C., 212 F.R.D. 283, 284 (E.D. Pa. 2002).
The Third Circuit has explained the required elements to establish the attorney-client
privilege under Pennsylvania law as follows:
(1) the asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a
court, or his or her subordinate, and (b) in connection with this communication is
acting as a lawyer; (3) the communication relates to a fact of which the attorney
was informed (a) by his client (b) without the presence of strangers (c) for the
purpose of securing primarily either (i) an opinion of law or (ii) legal services or
(iii) assistance in some legal proceeding, and (d) not for the purpose of
committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not
waived by the client.
Montgomery Cnty. v. Micro Vote Corp., 175 F. 3d 296, 301 (3d Cir. 1999); Kephart v. ABB, Inc., No. 2:12cv-668, 2014 WL 1452020, at *3-5 (W.O. Pa. Apr. 14, 2014); see also In re Grand Jury Proceeding
Impounded, 241 F. 3d 308, 316 n. 6 (3d Cir. 2001).
To determine whether the attorney-client privilege applies to a particular communication,
the threshold inquiry is "whether the communication is one that was made by a client to an
attorney for the purpose of obtaining legal advice or services." In re Spalding, 203 F. 3d 800, 805
(Fed. Cir. 2000) (citations omitted). In other words, there must be the existence of an attorneyclient relationship. The existence of an attorney-client relationship does not necessarily depend
upon the payment of fees or upon the execution of a formal contract. Westinghouse Electric Corp. v.
Kerr-McGee Corp., 580 F. 2d 1311 (7th Cir. 1978). Rather, the existence of the privilege depends
upon the attempt by a party to secure some legal advice or to procure some legal services. Martin
Marietta Materials, Inc. v. Bedford Reinforced Plastics, Inc., 227 F.R.D. 382, 392 (W.O. Pa. 2005).
Under the attorney-client privilege, confidential communications between an attorney and
client are privileged from disclosure. Nevertheless, communications made in the known presence
of a third party are typically not privileged. See United States v. Morris, No. 07-cr-20, 2008 WL
5188826, at *22 (W.O. Pa. Dec. 8, 2008); Highland Tank & Mfg. Co. v. PS Int'l, Inc., 246 F.R.D. 239, 24445 (W.O. Pa. 2007).
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present litigation. As explained in the Court's previous order, the conversation at issue
meets all of the requirements for attorney-client privilege, and the privilege was not
waived in this case.
Plaintiff contends that French was not a client of Attorney Zabel and that the
conversation between the two did not involve legal advice. Plaintiff also argues that the
privilege was waived.
The Court considered these arguments and concluded that
Plaintiff's arguments were without merit.
Plaintiff has not presented any additional
evidence or information nor has he presented any new legal principles that would alter
the Court's application of the relevant law.
Plaintiff asserts that it is imperative that he introduce Attorney Zabel's testimony
in order to challenge French's testimony. However, Plaintiff may call French's version of
events into question in a variety of other ways. For example, Plaintiff can question French
regarding whether or not he initially denied having any knowledge of the accident.
Plaintiff can also use French's deposition testimony to challenge his credibility.
In
summary, Plaintiff has not presented a valid basis for this Court to reconsider its previous
Order granting Defendant's motion in limine to preclude Plaintiff from calling
Defendants' attorney, Michael Zabel, to offer testimony concerning his communications
with Luke French, an employee of the Defendant corporation.
B.
Defendants' Responses to Requests for Admissions (ECF No. 199)
In its Order at ECF No. 214, this Court granted Defendants' motion in limine (ECF
No. IY9) to preclude evidence of Defendants' responses to Plaintiff's request for
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admissions. As explained in the Order, the Court will preclude Plaintiff from introducing
Defendants' responses to Plaintiff's requests for admissions numbers 1 through 5.
Plaintiff makes the same arguments that he previously made, and provides no
new evidence or legal principles for this Court's consideration. At issue is Defendants'
initial responses to certain request for admissions.
Plaintiff served his requests for
admissions asking Defendants to admit that no R&L driver was at the scene of Plaintiff's
accident.
(See ECF No. 199-1 at 3).
As previously noted by the Court, Defendants
responded with the following statement to each of these five requested admissions:
"Admitted based upon information known to date. Answering Defendants reserve the
right to supplement or amend their response as necessary." (Id. at 11-12). During its
subsequent investigation, Defendants discovered that one of R&L' s drivers, Clark Mead,
was present at the scene of the accident. Defendants informed Plaintiff of this fact on
January 3, 2013, and the parties further developed this fact in subsequent discovery. The
Court concluded that Defendants' initial admissions that no R&L driver was present at
the scene of Plaintiff's accident appears to have been based on the information available to
Defendants at that time. Defendants were careful to qualify their admissions by reserving
the right to revise the admissions as more information became available.
Once
Defendants became aware that one of their drivers, Clark Mead, was indeed present at the
scene of the accident, Defendants made that information known to Plaintiff and the
parties conducted discovery in accordance with that information.
Thus, the Court concluded that, permitting Plaintiff to use the original admissions
to argue that Defendants concealed information would confuse the jury from the ultimate
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issue in this case and would be unduly prejudicial to Defendants under Rule 403. Plaintiff
now contends that he should be permitted to use the admissions to challenge the
credibility of Luke French. However,
Accordingly, the Court will preclude Plaintiff from introducing Defendants'
responses to Plaintiff's requests for admissions numbers 1 through 5.
C.
Hearsay Conversation between French and Mead (ECF No. 120)
In its Order at ECF No. 217, this Court denied Plaintiff's motion in limine (ECF
No. 120) to preclude hearsay conversation that took place between Luke French and Clark
Mead. As explained in the Order, the Court will permit Defendant to introduce testimony
by French regarding certain statements made by Mead following the accident during a
phone conversation as an excited utterance. In its order, the Court reviewed the disputed
statements and concluded that the statements were admissible under the excited
utterance exception2 to the hearsay rule. 3
Rule 803(2) provides an exception to the hearsay rule for an "excited utterance" when "[a]
statement relating to a startling event or condition [was] made while the declarant was under the
stress of excitement that it caused." Fed. R. Evid. 803(2). For a hearsay statement to qualify as an
excited utterance, the party seeking to introduce the statement must show each of the following: (1)
a startling event occurred, (2) a statement relating to the circumstances of the startling event was
made, (3) the declarant making the statement must have had an opportunity to personally observe
the events, and (4) the statement was made before the declarant had time to reflect and fabricate.
Mitchell, 145 F. 3d at 576 (citation omitted). "The rationale for the excited utterance exception lies
in the notion that excitement suspends the declarant's powers of reflection and fabrication,
consequently minimizing the possibility that the utterance will be influenced by self interest and
therefore rendered unreliable." United States v. Brown, 254 F. 3d 454, 458 (3d Cir. 2001).
2
Hearsay is "a statement that (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter asserted." Fed. R. Evid.
801(c). Hearsay evidence is generally inadmissible at trial unless otherwise provided by statute,
the Federal Rules of Evidence, or other rules prescribed by the United States Supreme Court. Fed.
R. Evid. 802.
3
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Importantly, this Court reviewed the evidence submitted by the parties and
concluded that Mead did not have time to reflect and fabricate before he made his
statement to French. Plaintiff disputes this conclusion, arguing that, by the time Mead
initiated the phone call to French, he had sufficient opportunity to reflect and fabricate a
story.
However, as the Court previously noted, Plaintiff's timeline of events is
contradicted by the evidence in the record.
The accident occurred at approximately 12:35 a.m.
Luke French drove by the
accident at approximately 12:45 a.m. and observed Mead's R&L truck parked on the side
of the road. During the time that he was at the scene of the accident, Mead, along with
two other truck drivers, pulled Plaintiff out of his burning truck and carried him away to
safety to await medical personnel. At some point in time, Mead left the scene of the
accident in his truck. Mead then placed a phone call to French at 12:58 a.m. The phone
records clearly show that only 23 minutes passed between the time that the accident
initially occurred and when Mead placed his call to French. Additionally, during that 23
minute window of time, Mead was involved to some extent in aiding the other truck
drivers in moving Plaintiff to safety, at which time, Mead observed Plaintiff's traumatic
injuries. The shortness of time between Mead's phone call to French and his observations
of the accident and the Plaintiff's injuries falls within the time limitation imposed by Rule
803(2). See United States v. Mitchell, 145 F. 3d 572, 577 (3d Cir. 1998) (noting that a 40
minute time span might be too long while a 15 to 20 minute time span would not be too
long) (collecting cases).
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Thus, as the Court previously noted, French's testimony regarding Mead's
statements made soon after the accident is admissible as Mead's statements constitute an
excited utterance. Accordingly, Plaintiff's motion for reconsideration is DENIED.
V.
Conclusion
For the reasons set forth above, Plaintiff's motions for reconsideration are both
denied.
An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILLIAM M. PRESCOTT,
)
)
Plaintiff,
)
)
CIVIL ACTION NO. 3:11-203
)
~
)
R&L TRANSFER, INC., GREENWOOD,
MOTOR LINES d/b/a R&L CARRIERS,
and R&L CARRIERS SHARED
SERVICES, LLC,
JUDGE KIM R. GIBSON
)
)
)
)
)
Defendants.
)
s-r
AND NOW, this
31
ORDER
day of August 2015, upon consideration of Plaintiff's
motions (ECF Nos. 215 and 217) for reconsideration, and Defendants' response in
opposition, IT IS HEREBY ORDERED that, in accordance with the foregoing
memorandum opinion, the motions are DENIED.
BY THE COURT:
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
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