1. A motion for reconsideration should “address[] only factual and legal matters that the court may have

overlooked. It is improper on a motion for reconsideration to ask the Court to rethink what it had already thought

through - rightly or wrongly.” Yang v. AstraZeneca, No. 04-4626, 2005 U.S. Dist. LEXIS 18567, at *3 (E.D. Pa.

Aug. 29, 2005) (quoting Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993)

(citations and internal alterations omitted)). 

 Plaintiff also makes the following arguments with regard to the personal injury case: Plaintiff did not agree to the

assignment of the personal injury case to Magistrate Judge Hart; the defense counsel and the defendant “lied,

committed fraud, withheld hundreds of documents,” Pl.’s Mot. Recons. at 2; and, Plaintiff did not have a full and fair

opportunity to litigate discovery issues. These arguments were also set forth in Plaintiff’s Substantive Answer to

Defendants’ Motion to Dismiss. Therefore, the Court finds that Plaintiff’s repetitive arguments are not proper

grounds for reconsideration. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LINDA SEAWRIGHT, :

Personal Representative and Administratrix :

of the Estate of Joseph Jackson, :

:

Plaintiff, : CIVIL ACTION NO. 05-2751

:

v. :

:

ANDREW E. GREENBERG, et al., :

:

Defendants. :

M E M O R A N D U M

BUCKWALTER, S.J. December 14, 2005

Presently before the Court are Plaintiff’s Motion for Reconsideration of Order

Dismissing Action (Docket No. 28) and Defendants’ Replies (Docket Nos. 29, 30, 31, 34).

I. FACTS AND PROCEDURAL HISTORY 

On November 2, 2005, this Court dismissed Plaintiff’s complaint as barred by the

statute of limitations and the doctrine of collateral estoppel. See Seawright v. Greenberg, No. 05-

2751, 2005 LEXIS 26229 (E.D. Pa. Nov. 2, 2005). Plaintiff now seeks reconsideration of the

Court’s Order Dismissing Plaintiff’s Complaint. Plaintiff makes two primary arguments1 in

Case 2:05-cv-02751-RB Document 37 Filed 12/14/05 Page 1 of 6
2. “A motion for reconsideration may not advance new facts, issues, or arguments not previously presented to the

court.” Vaidya v. Xerox Corp., No. 97-547, 1997 U.S. Dist. LEXIS 18548, at * 5 n.3 (E.D. Pa. Nov. 25, 1997)

(citing Smith v. City of Chester, 155 F.R.D. 95, 97 (E.D. Pa. 1994)). However, in some cases, courts may exercise

discretion to consider case law not previously brought to the attention of the court. Caudill Seed & Warehouse Co.,

Inc. v. Prophet 21, Inc., 126 F. Supp. 2d 937, 939 n.1 (granting a motion for reconsideration where a party brought a

recent Third Circuit decision to the district court’s attention); Fidelity Fed. Sav. & Loan Assoc. v. Felicetti, 813 F.

Supp. 332, 334-35 (E.D. Pa. 1993) (granting a motion for reconsideration where a party brought an applicable Third

Circuit case to the district court’s attention). 

 In the present case, Plaintiff raises new arguments regarding whether a court can grant a motion to dismiss on

limitations and collateral estoppel grounds and the continuing violation theory. Even if the Court could consider

these new arguments, the Court would still deny Plaintiff’s Motion for Reconsideration for the reasons discussed in

this Memorandum. 

2

support of her Motion for Reconsideration: (1) “[t]he expiration of the applicable statute of

limitations and/or claims of collateral estoppel are most appropriately raised as an affirmative

defense in responsive pleadings and not in a motion to dismiss;” and (2) Defendants’ conduct

constituted a continuing violation, and therefore, Plaintiff’s complaint is not barred by the statute

of limitations.2 (Pl.’s Mot. Recons. at 1.) For the reasons that follow, Plaintiff’s Motion will be

denied.

II. ANALYSIS

A. Standard of Review

Local Rule of Civil Procedure 7.1(g) allows a party to make a motion for

reconsideration. “The purpose of the motion for reconsideration is to correct manifest error of

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

909 (3d Cir. 1985). Motions for reconsideration are granted sparingly. Cont’l Cas. Co. v.

Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995). District courts should grant a

party’s motion for reconsideration in only three situations: “(1) the availability of new evidence

not previously available, (2) an intervening change in controlling law, or (3) the need to correct a

clear error of law or to prevent manifest injustice.” Yang v. Astra Zeneca, No. 04-4626, U.S.

Case 2:05-cv-02751-RB Document 37 Filed 12/14/05 Page 2 of 6
3

Dist. LEXIS 18567, at *2 (E.D. Pa. Aug. 29, 2005) (quoting New Chemic (U.S.), Inc. v. Fine

Grinding Corp., 948 F. Supp. 17, 18-19 (E.D. Pa. 1996)). 

B. Statute of Limitations and Collateral Estoppel as Affirmative Defenses

Plaintiff argues that under Federal Rules of Civil Procedure, a limitations defense

and a collateral estoppel defense cannot be raised by motion, but rather must be raised in a

defendant’s answer. Federal Rule of Civil Procedure 8(c) provides that: “In pleading to a

preceding pleading, a party shall set forth affirmatively . . . estoppel, . . . statute of limitations, . . .

and any other matter constituting an avoidance or affirmative defense.” Fed. R. Civ. P. 8(c). 

Rule 12(b) states that “every defense . . . shall be asserted in the responsive pleading hereto if one

is required,” and then goes on to list specific exceptions to the rule. Fed. R. Civ. P. 12(b). The

statute of limitations and collateral estoppel are not listed as exceptions. Therefore, taking Rules

8(c) and 12(b) together, both a limitations defense and a collateral estoppel defense must be

raised in a defendant’s answer. See Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)

(holding that a limitations defense must be raised in a defendant’s answer). 

However, “the law of this Circuit (the so-called ‘Third Circuit Rule’) permits a

limitations defense to be raised by a motion under 12(b)(6), but only if ‘the time alleged in the

statement of a claim shows that the cause of action has not been brought within the statute of

limitations.’” See id. (quoting Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d

Cir. 1975)). See also Oshiver v. Levin et al., 38 F.3d 1380, 1384 n.1 (3d Cir. 1994) (“While the

language of Fed. R. Civ. P. 8(c) indicates that a statute of limitations defense cannot be used in

the context of a Rule 12(b)(6) motion to dismiss, an exception is made where the complaint

facially shows noncompliance with the limitations period and the affirmative defense clearly

Case 2:05-cv-02751-RB Document 37 Filed 12/14/05 Page 3 of 6
3. There are two statutes of limitation applicable in this case. First, the statute of limitations for fraud,

misrepresentation, abuse of process, civil conspiracy, and intentional infliction of emotional distress is two years. 

Seawright, 2005 U.S. Dist. LEXIS 26229, at *10-11. Second, the statute of limitations for slander is one year. Id. at

*11-12.

4

appears on the face of the pleading.”). The Court finds that the Third Circuit Rule applies in the

present case. As the Court noted in its November 2, 2005 Memorandum, the “last action by any

defendant alleged in Plaintiff’s Amended Complaint occurred on February 20, 2003.” Seawright,

2005 U.S. Dist. LEXIS 26229, at *11. Plaintiff did not bring suit until May 19, 2005. Therefore,

on its face, Plaintiff’s Complaint demonstrates noncompliance with the applicable statutes of

limitations and the Court was correct to grant Defendant’s Motion to Dismiss on this basis.3

With regard to collateral estoppel, the Court notes that other courts in the United

States District Court for the Eastern District of Pennsylvania have granted motions to dismiss on

collateral estoppel grounds. See, e.g., Ehly v. City of Philadelphia, No. 03-3634, 2004 U.S. Dist.

LEXIS 23089, at *7-10 (E.D. Pa. Nov. 9, 2004); Weber v. Henderson, 275 F. Supp. 2d 616 (E.D.

Pa. 2003). 

Therefore, with regard to the appropriateness of granting a motion to dismiss

based on a limitations defense and a collateral estoppel defense, Plaintiff has failed to

demonstrate the availability of new evidence not previously available, an intervening change in

controlling law, or the need to correct a clear error of law or to prevent manifest injustice. 

Consequently, the Court declines to grant Plaintiff’s Motion for Reconsideration on this basis. 

C. Continuing Violation Theory 

Plaintiff also argues that the “conduct pleaded in [Plaintiff’s] complaint . . . may

be deemed in the nature of a continuing violation of plaintiff’s rights.” (Pl.’s Mot. Recons. at 4.) 

Case 2:05-cv-02751-RB Document 37 Filed 12/14/05 Page 4 of 6
5

Plaintiff alleges that Defendants’ “withholding of evidence and other fraudulent and tortuous

conduct has continued up to the date of the filing of the initial complaint, is ongoing and

continuing today and will be ongoing and continuing until all of these wrongs and improprieties

see the light of day and are once for all cleansed by the sword of justice.” Id. at 4-5. 

Defendants correctly point out that the continuing violation theory does not apply

when a plaintiff is aware of the injury at the time that it occurred. Morganroth v. Norris et al.,

331 F.3d 406, 417 n.6 (3d Cir. 2003). The Court’s Memorandum accompanying its Order

Dismissing Plaintiff’s Complaint found that “Plaintiff and Plaintiff’s counsel were aware of the

alleged conduct at the time that it occurred, as evidenced by Plaintiff’s communications with the

judges in the underlying actions.” Seawright, 2005 LEXIS 26229, at *13 n. 11. Therefore,

because Plaintiff was aware of the injury at the time that it occurred, the continuing violation

theory does not apply in this case. 

Therefore, with regard to the continuing violation theory, Plaintiff has failed to

present any new evidence not previously available, an intervening change in controlling law, or

the need to correct a clear error of law or to prevent manifest injustice. Consequently, the Court

declines to grant Plaintiff’s Motion for Reconsideration on this basis. 

III. CONCLUSION

For the reasons stated above, Plaintiff’s Motion for Reconsideration is DENIED. 

An appropriate order follows. 

Case 2:05-cv-02751-RB Document 37 Filed 12/14/05 Page 5 of 6
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LINDA SEAWRIGHT, :

Personal Representative and Administratrix :

of the Estate of Joseph Jackson, :

:

Plaintiff, : CIVIL ACTION NO. 05-2751

:

v. :

:

ANDREW E. GREENBERG, et al., :

:

Defendants. :

ORDER

AND NOW, this 14th day of December, 2005, upon consideration of Plaintiff’s

Motion for Reconsideration of Order Dismissing Action (Docket No. 28), Defendants’ Replies

(Docket Nos. 29, 30, 31, 34), it is hereby ORDERED that Plaintiff’s Motion for Reconsideration

is DENIED. 

BY THE COURT:

_____________________________________

 RONALD L. BUCKWALTER, S.J.

Case 2:05-cv-02751-RB Document 37 Filed 12/14/05 Page 6 of 6