IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VICTORIA MCCLOUD and BARBARA :

BOYLE, :

 :

 Plaintiffs : No. 4:04-CV-2322

 :

v. : Complaint Filed 10/21/04

 :

CITY OF SUNBURY, : (Judge Muir)

 :

 Defendant :

ORDER

April 3, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On November 22, 2005, a jury returned a verdict on

liability in favor of the Plaintiffs Victoria McCloud and Barbara

Boyle with respect to the Plaintiffs’ claims of unlawful

retaliation in violation of Title VII of the Civil Rights Act of

1964 and the Pennsylvania Human Relations Act. On December 7,

2005, the jury awarded Plaintiff McCloud $250,000 and Plaintiff

Boyle $65,000 in damages. On December 21, 2005, Plaintiffs filed

a motion for attorney’s fees and expenses. On February 23, 2006,

we granted Plaintiffs’ motion by awarding them attorney’s fees

and expenses in the amount of $105,151.77.

On March 3, 2006, Defendant filed a motion for

reconsideration and a brief in support thereof. On March 21,

2006, Plaintiffs filed a brief in opposition. The motion became

ripe for disposition with the filing of the Defendant’s reply

brief on March 30, 2006.

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Before addressing the merits of Defendant’s arguments,

we will review the legal principles governing motions for

reconsideration, beginning with the well-settled doctrine of "law

of the case." It is important to note the manner in which a

court's reconsideration of a prior decision meshes with that

doctrine. The "law of the case" doctrine "directs [a federal

court's] exercise of its discretion." Public Interest Research

Group of New Jersey, Inc., et al. v. Magnesium Elektron, Inc.,

123 F.3d 111, 113 (3d Cir. 1997). When the United States Supreme

Court considered how a motion for reconsideration affects the

scope and nature of that discretion, it commented that

[a] court has the power to revisit prior decisions of

its own or of a coordinate court in any circumstance,

although 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 work a manifest injustice."

Christianson v. Colt Industries Operating Corp., 486 U.S. 800,

817 (1988)(emphasis added).

The Supreme Court's guidance in Christianson is

reflected in the repeated holding of the Court of Appeals for the

Third Circuit that 

we have recognized that the doctrine [of the law of

the case] does not preclude our reconsideration

of previously decided issues in extraordinary

circumstances such as where: (1) new evidence is

available; (2) a supervening new law has been

announced; or (3) the earlier decision was 

clearly erroneous and would create manifest

injustice. 

In re City of Philadelphia Litigation, 158 F.3d 711, 718 (3d Cir.

1998)(emphasis added); see also Public Interest Research Group of

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New Jersey, Inc., 123 F.3d at 117-118. A demonstration of

extraordinary circumstances as outlined above is a threshold

prerequisite for obtaining reconsideration of a court's prior

decision.

There is also an abundance of case law describing the

events and conditions that do not constitute extraordinary

circumstances justifying a court's reconsideration of a prior

decision. "A motion for reconsideration is not properly grounded

on a request that a court should rethink a decision it has

already made." Armstrong v. Reisman, No. 99-CV-4188, 2000 WL

288243, *2 (E.D.Pa. March 7, 2000)(Brody, J.). Moreover, "where

evidence is not newly discovered, a party may not submit that

evidence in support of a motion for reconsideration." D'Angio v.

Borough of Nescopeck, 56 F.Supp.2d 502, 504 (M.D.Pa.

1999)(McClure, J.)(citing Harsco Corp. v. Zlotnicki, 779 F.2d

906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986)); see

also Delong Corp. v. Raymond Int'l Inc., 622 F.2d 1135, 1139-40

(3d Cir. 1980).

As the cited cases demonstrate, a motion for

reconsideration is a device of limited utility. Its fundamental

purpose is to remedy manifest errors of law or fact or to present

newly discovered precedent or evidence which, if discovered

previously, might have affected the court's decision. Harsco,

supra. A party seeking to establish that the court has made such

a manifest error is required "to persuade us not only that our

prior decision was wrong, but that it was clearly wrong and that

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adherence to that decision would create manifest injustice." In

re City of Philadelphia Litigation, 158 F.3d 711, 718 (3d Cir.

1998). We will apply those concepts to Defendant’s pending

motion for reconsideration.

Plaintiffs in their brief in opposition point out that

Defendant’s motion is a rehash of arguments already considered by

the court. We agree with the Plaintiffs and will simply clarify

one item relating to the award of attorney’s fees involving work

performed for Jamie Quinn.

Defendant argued previously and in support of its

present motion for reconsideration that certain time entries

related to Jamie Quinn should have been eliminated from the

calculation of the award of attorney’s fees and expenses. Jamie

Quinn was a former plaintiff who settled with the Defendant prior

to trial. As we noted in our order of February 23, 2006, much of

the work associated with Jamie Quinn was not distinct from the

successful retaliation claims of Plaintiffs McCloud and Boyle.

Plaintiffs McCloud and Boyle quite appropriately presented at the

time of trial evidence relating to the hostile work environment

for the jury to evaluate the retaliation claims. The jury was

instructed, in assessing the retaliation claims, that the

Plaintiffs had to prove that they were acting on a good faith,

reasonable belief that they were the victims of discrimination

when they made the original discrimination charges. In order for

the jury to make such a determination evidence regarding the work

environment had to be presented. All of the work associated

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with Jaime Quinn would have been performed in order to develop

evidence of the work environment to which Plaintiffs McCloud and

Boyle were exposed. The reduction requested by Defendant would

have the effect of simply ignoring the amount of work required to

obtain evidence through Jamie Quinn which was relevant to the

development of the retaliation case presented on behalf of

Plaintiffs McCloud and Boyle. Defendant has not argued that

attorney Zicolello was previously compensated for the time as

part of the settlement with Jamie Quinn. 

As noted in our order of February 23, 2006, Plaintiffs

did not have limited success in this case. The jury awarded

$65,000 in favor of Plaintiff Barbara Boyle and $250,000 in favor

Plaintiff Victoria McCloud. Defendant does not raise or set

forth any arguments in its motion for reconsideration that call

into question the merits of our order of February 23, 2006. That

order is not troubled by manifest errors of law or fact and

Defendant has not presented anything new, which if previously

presented, might have affected our decision. Consequently, the

motion for reconsideration will be denied. 

Plaintiffs have also requested in their opposition

brief additional attorney’s fees in the amount of $3,820.00

associated with having to respond to the Defendant’s motion for a

stay and the motion for reconsideration. Defendant’s response to

this request is that “[i]t is questionable as to whether the

Plaintiffs can affirmatively request the additional fees in a

document which is a responsive pleading as opposed to an

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affirmative request.” In light of Defendant’s objection we will

not consider an award of the additional fees requested by

Plaintiffs at this time. The Plaintiffs will be required to file

a motion for the fees before we will consider the matter.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

Defendant’s motion for reconsideration (Doc. 118) filed

on March 3, 2006, is denied.

 

 s/Malcolm Muir MUIR, U.S. District Judge

MM:gs

 

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