IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHELLE BUTZ and BRIAN BUTZ, : No. 4:09-CV-00673

:

Plaintiffs, :

:

v. : (Judge McClure)

:

JAMES SCHLEIG, WATSONTOWN :

TRUCKING COMPANY, JOHN DOE I, :

JOHN DOE II, AND JOHN DOE III, :

:

Defendants. :

MEMORANDUM

April 2, 2010

I. Background:

This action began on or around January 9, 2009, when the plaintiffs,

Michelle and Brian Butz, filed a complaint in the Superior Court of Monmouth

County, New Jersey. In their complaint, the plaintiffs allege that Watsontown

Trucking Company (“Watsontown Trucking”) and James Schleig negligently

caused an accident with plaintiffs that occurred on June 4, 2008. That accident

took place in Clearfield County, Pennsylvania.

The action was removed by defendants Watsontown Trucking and Schleig

on February 20, 2009, to the United States District Court for the District of New

Jersey.

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II. Procedural History:

The United States District Court for the District of New Jersey (“New Jersey

Court”), on March 3, 2009, issued an order, sua sponte, to show cause why the

matter should not be transferred to the United States District Court for the Middle

District of Pennsylvania. (Rec. Doc. No. 4). Plaintiffs filed a response to this

order on March 17, 2009, and defendants Watsontown Trucking and Schleig filed

a response on March 24, 2009. (Rec. Doc. Nos. 5 and 11). On April 2, 2009, the

plaintiffs filed a reply brief, with exhibits, in which the plaintiffs opposed transfer

of the case to the District Court for the Middle District of Pennsylvania and, in

addition, sought reassignment of the action within the District of New Jersey. 

(Rec. Doc. Nos. 15 and 16). On April 7, 2009, the New Jersey Court issued a

Memorandum Opinion, in which it granted the order to show cause and transferred

the action to the United States District Court for the Middle District of

Pennsylvania. (Rec. Doc. Nos. 17 and 18).

Defendants Watsontown Trucking and Schleig filed an answer to the

plaintiffs’ complaint on March 19, 2009 (Rec. Doc. No. 8), an amended answer on

March 19, 2009 (Rec. Doc. No. 9), and an additional amended answer on March

20, 2009 (Rec. Doc. No. 10)

On January 19, 2010, plaintiffs filed a motion, which was concurred in by

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defendants, for an extension of time in which to complete discovery. (Rec. Doc.

No. 31). This Court granted the motion on January 25, 2010. (Rec. Doc. No. 41).

Also on January 19, 2010, plaintiffs filed a motion seeking the transfer of the

action under 28 U.S.C. § 1404 to the District of New Jersey, with a brief in support

thereof. (Rec. Doc. Nos. 32 and 34). On January 26, 2010, defendants

Watsontown Trucking and Schleig filed a brief in opposition to the motion to

transfer the case. (Rec. Doc. No. 42). Plaintiffs filed a reply brief on February 5,

2010. (Rec. Doc. No. 43). On February 9, 2010, we denied the motion for

transfer. (Rec. Doc. No. 44). Our denial rested on the fact that we harbored

substantial doubt as to whether the case could have been brought against defendant

Schleig in New Jersey. We also noted that, even if the District of New Jersey

could exercise personal jurisdiction over defendant Schleig, we would still

conclude that transfer to the District of New Jersey under § 1404 would be

improper.

At issue in the instant memorandum and order is plaintiffs’ “Motion for

Reconsideration of Order Entered February 9, 2010 or in the Alternative for

Certification Pursuant to 28 U.S.C. 1292(b),” accompanied by a brief in support. 

(Rec. Doc. Nos. 45 and 46). Defendants have filed a memorandum of law in

opposition to plaintiffs’ motion for reconsideration (Rec. Doc. No. 47), and

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 This court notes that, in the context of deciding a motion for

reconsideration of an order pertaining to transfer of venue, Pennsylvania district

courts have applied Max’s Seafood and Pub. Interest, though a transfer of venue

order is interlocutory in nature and not a final judgment. See Akhi Raheem

Muhammad v. Weis, 2009 U.S. Dist. LEXIS 94243, *3-6 (E.D. Pa. Oct. 6, 2009)

4

plaintiffs have filed a reply brief (Rec. Doc. No. 48). The motion for

reconsideration is therefore ripe for disposition, and now for the following reasons

we will deny the motion. (Rec. Doc. No. 45).

III. Discussion

1. Standard of Review for Motions for Reconsideration

A motion for reconsideration is a device of limited utility. Its purpose is to

correct manifest errors of law or fact or to present newly discovered evidence.

Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party

seeking reconsideration must demonstrate at least one of the following grounds

prior to the court’s altering, or amending, a standing judgment: (1) an intervening

change in the controlling law; (2) the availability of new evidence that was not

available when the court entered judgment; or (3) the need to correct a clear error

of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quinteros,

176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA

Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)); see also Pub. Interest

Research Group v. Magnesium Elektron, 123 F.3d 111, 117 (3d Cir. 1997).1 A

Case 4:09-cv-00673-YK Document 49 Filed 04/02/10 Page 4 of 14
(in which the district court reconsidered whether its order that dismissed all but

two of the plaintiff’s claims and transferred the remaining claims against all

defendants but one to the United States District Court for the Western District of

Pennsylvania “was a clear error of law or would create manifest injustice” under

Pub. Interest); Shaw v. Parker Hannifin Corp., 2008 U.S. Dist. LEXIS 49541, *5

(E.D. Pa. June 27, 2008) (in which the district court reconsidered whether its order

that transferred the action to the United States District Court for the Northern

District of Ohio would result in “a manifest injustice”).

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motion for reconsideration is appropriate in instances where the court has “patently

misunderstood a party, or has made a decision outside the adversarial issues

presented to the Court by the parties, or has made an error not of reasoning but of

apprehension.” Rohrbach v. AT & T Nassau Metals Corp., 902 F.Supp. 523, 527

(M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F.Supp.

712 (M.D. Pa. 1996) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc.,

99 F.R.D. 99, 101 (E.D.Va.1983)).

Importantly, a motion for reconsideration may not be used as a means to

reargue unsuccessful theories, or argue new facts or issues that were not presented

to the court in the context of the matter previously decided. Drysdale v. Woerth,

153 F. Supp. 2d 678, 682 (E.D. Pa. 2001). “Because federal courts have a strong

interest in the finality of judgments, motions for reconsideration should be granted

sparingly.” Continental Cas. Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943

(E.D. Pa. 1995).

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2. Plaintiffs’ Motion for Reconsideration

The subject of the instant memorandum and order is plaintiffs’ motion for

reconsideration of our February 9, 2010 Order. (Rec. Doc. No. 45). In their brief

in support, plaintiffs first argue at length as to the burden that would be placed on

them if they and their experts and other witnesses were forced to travel to

Williamsport, Pennsylvania, for an eventual trial. Plaintiffs also point to the fact

that the only remaining issues in dispute are causation and damages, further

support, they contend, for transferring this action back to the District of New

Jersey under § 1404. In addition, it appears as though nearly all of the medical

records relevant to the remaining issues are located in New Jersey. Plaintiffs

contend that the court misunderstood material facts and assumed others in our

February 9, 2010 Order and, as such, a granting of the plaintiffs’ motion for

reconsideration is warranted.

Second, plaintiffs claim that defendant Schleig cannot contend that New

Jersey lacks personal jurisdiction over him, as he waived any objection to that

court’s jurisdiction. As support for this claim, the plaintiffs state that “[d]efendant

Schleig raised (3) improper venue, but not (2) lack of personal jurisdiction.” (Rec.

Doc. No. 46 at 25). Plaintiffs go on to argue that “defendant Schleig waived

objection to the New Jersey court’s jurisdiction by challenging venue, but omitting

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a motion to dismiss for lack of personal jurisdiction.” Id. at 26.

The plaintiffs request that this court grant reconsideration and transfer the

instant action to the United States District Court for the District of New Jersey. If

this court were to deny the plaintiffs’ motion, they would request that this court

certify our February 9, 2010 Order pursuant to 28 U.S.C. § 1292(b), for the

purposes of an interlocutory appeal.

3. Whether the Action Could have been Brought in the District of New Jersey

As this court noted in its February 9, 2010 Order, a court may transfer an

action only when the transferee court has the power to exercise personal

jurisdiction over all defendants. See High River Ltd. Partnership v. Mylan Labs.,

Inc., 353 F. Supp. 2d 487, 492 (M.D. Pa. 2005) (Rambo, J.) (citing Sunbelt Corp.

v. Noble, Denton & Assocs., 5 F.3d 28, 31 (3d Cir. 1993); Shutte v. Armco Steel

Corp., 431 F.2d 22, 24 (3d Cir. 1970)). The issue of whether the action could have

been brought in the transferee district is a threshold question. It is a plaintiff’s

burden to show that the transferee court is empowered to exercise personal

jurisdiction over all defendants. See High River, 353 F. Supp. 2d at 493 (stating

that “the moving party must demonstrate that venue, personal jurisdiction, and

subject matter jurisdiction would all have been proper in the proposed transferee

district”) (citing Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960)).

Case 4:09-cv-00673-YK Document 49 Filed 04/02/10 Page 7 of 14
2 We are similarly skeptical that venue would properly lie in the District of

New Jersey such that the present action could have been brought there. Pursuant to

28 U.S.C. § 1391(a):

A civil action wherein jurisdiction is founded only on diversity of

citizenship may, except as otherwise provided by law, be brought only

in (1) a judicial district where any defendant resides, if all defendants

reside in the same State, (2) a judicial district in which a substantial

part of the events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated,

or (3) a judicial district in which any defendant is subject to personal

jurisdiction at the time the action is commenced, if there is no district

in which the action may otherwise be brought.

Here, for the purposes of subsection (a)(2), no events or omissions giving rise to

the plaintiffs’ claims occurred in New Jersey; instead, the accident occurred in

Clearfield County, in the Western District of Pennsylvania. Subsection (a)(1) is

also applicable as both defendants reside in Pennsylvania; therefore, the action

could have been brought in any district where either Watsontown Trucking or

Schleig resides. Clearly, the Middle District of Pennsylvania is such a district, as

both Watsontown Trucking and Schleig reside there for the purposes of § 1391. 

However, this court is unaware of any allegations that both defendants reside in

New Jersey, a fact that would have allowed the plaintiffs to bring the action in the

District of New Jersey under subsection (a)(2). Because there are at least two

districts in Pennsylvania in which the present action might have otherwise been

brought, subsection (a)(3) is inapplicable.

8

We remain unconvinced that the plaintiffs have demonstrated that personal

jurisdiction over defendant Schleig would properly lie in the District of New

Jersey.2

 Instead of making any showing that a New Jersey court would be

empowered to exercise personal jurisdiction over defendant Schleig, plaintiffs have

sought to show that Schleig did not properly raise a defense based on lack of

personal jurisdiction and that he in fact waived such a defense.

Case 4:09-cv-00673-YK Document 49 Filed 04/02/10 Page 8 of 14
3

 See Rec. Doc. No. 11 at 3 (stating that the “U.S. District Court for the

District of New Jersey has no personal jurisdiction”), at 4 (“The District of New

Jersey has no personal jurisdiction over John Schleig.”), at 5 (“This Court has no

9

We find plaintiffs’ attempts to demonstrate waiver unavailing. In their

amended answer to the plaintiffs’ complaint that was filed on March 20, 2009, the

defendants stated that the New Jersey Court “lacks jurisdiction over defendants by

reason of insufficiency of process and reserves the right to move at or before trial

for a dismissal of the Complaint on the ground of lack of jurisdiction because of

insufficiency of process and/or service, personal or subject matter jurisdiction.” 

(Rec. Doc. No. 10 at 6) (emphasis added). Defendants made no motion under Fed.

R. Civ. P. 12(b) prior to this responsive pleading.

Four days later, on March 24, 2009, the defendants filed a response to the

New Jersey Court’s sua sponte order to show cause. (Rec. Doc. No. 11). In that

response, defendants argued that venue in the District of New Jersey was improper

and that the action should be transferred to the Middle District of Pennsylvania. 

The defendants did not make a motion relying on improper venue under Fed. R.

Civ. P. 12(b); instead, they merely responded to a sua sponte order to show cause

issued by the New Jersey Court. Even so, the defendants, on numerous occasions

throughout their brief, reiterated their belief that personal jurisdiction over all of

the defendants did not exist.3

Case 4:09-cv-00673-YK Document 49 Filed 04/02/10 Page 9 of 14
personal jurisdiction over James Schleig.”).

4

 Plaintiffs have attempted to show, in essence, that the present action could

have been brought in the District of New Jersey because defendant Schleig failed

to properly raise or waived a defense based on lack of personal jurisdiction under

Fed. R. Civ. P. 12(b)(2). However, even if this court were to agree with the

plaintiffs that defendant Schleig did fail to properly raise, or did waive, a defense

based upon lack of personal jurisdiction, it would not be clear that, for the purposes

of § 1404, the plaintiffs could have brought the action in the District of New

Jersey. As the United States Supreme Court has noted, “the power of a District

Court under § 1404(a) to transfer an action to another district is made to depend

not upon the wish or waiver of the defendant but, rather, upon whether the

transferee district was one in which the action ‘might have been brought’ by the

plaintiff.” Hoffman, 363 U.S. at 343-44 (1960). The Court went on to agree with

the Circuit Court of Appeals for the Seventh Circuit, which has stated:

If when a suit is commenced, plaintiff has a right to sue in that district,

independently of the wishes of defendant, it is a district 'where [the

action] might have been brought.' If he does not have that right,

independently of the wishes of defendant, it is not a district 'where it

might have been brought,' and it is immaterial that the defendant

subsequently [makes himself subject, by consent, waiver of venue and

personal jurisdiction defenses or otherwise, to the jurisdiction of some

other forum]."

Id. at 344 (quoting Blaski v. Hoffman, 260 F.2d 317, 321 (7th Cir. 1958); Behimer

v. Sullivan, 261 F.2d 467, 469 (7th Cir. 1958)). The above calls into question even

10

The court finds it difficult to conclude, on this record, that defendant Schleig

waived his Fed. R. Civ. P. 12(b) defense based upon lack of personal jurisdiction. 

As such, we conclude that there remains substantial doubt as to the District Court

of New Jersey’s ability to exercise personal jurisdiction over defendant Schleig;

therefore, we will refrain from transferring this action to the District of New

Jersey.4

Case 4:09-cv-00673-YK Document 49 Filed 04/02/10 Page 10 of 14
the plaintiffs’ argument that because of defendant Schleig’s arguable waiver of his

defense based upon lack of personal jurisdiction, the action could have been

brought in the District of New Jersey and, therefore, transfer under § 1404 would

be proper.

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4. This Court’s Analysis of the § 1404 Factors

Because we conclude that the question of personal jurisdiction by a New

Jersey court over defendant Schleig was properly addressed by our February 9,

2010 Order, we need not reconsider our analysis of the § 1404 factors in deciding

whether the convenience of the parties weighs in favor of or against transfer. As

we conclude that the present action could not have been brought in the District of

New Jersey, which is a threshold question, the analysis of the § 1404 factors

becomes irrelevant.

5. Whether Certification Pursuant to 28 U.S.C. § 1292(b) is Warranted

In the alternative, plaintiffs argue that this court’s order denying transfer to

the District of New Jersey should be certified for appeal under 28 U.S.C. §

1292(b).

An order may be certified for interlocutory appeal by a district court

pursuant to 28 U.S.C. § 1292(b) if the order: (1) involves a controlling question of

law; (2) there is substantial ground for difference of opinion with respect to that

question, and (3) immediate appeal may materially advance the ultimate

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termination of the litigation. See 28 U.S.C. § 1292(b); Katz v. Carte Blanche

Corp., 496 F.2d 747, 754 (3d Cir. 1974). An order should be certified under §

1292(b) by a district court only in exceptional circumstances. See Milbert v. Bison

Labs., Inc., 260 F.2d 431, 433 (3d Cir. 1958).

A “controlling question of law” is one that is “serious to the conduct of the

litigation, either practically or legally,” such as whether an erroneous decision on

the question “would result in a reversal of a judgment after final hearing.” Katz,

496 F.2d at 755. We fail to see how our decision not to transfer this case back to

the District of New Jersey involves a controlling question of law. First, it is not

clear that New Jersey law would apply if the matter were transferred back to the

District of New Jersey. Harkes v. Accessory Corp., 2010 U.S. Dist. LEXIS 21748,

*6 n.3 (D.N.J. Mar. 10, 2010) (“Similar to contract claims, when resolving choice

of law disputes stemming from tort claims, New Jersey courts apply the law of the

state with most significant contacts in light of the factors enumerated in § 145 of

the Restatement (Second) of Conflict of Laws.”) (citing Lebegern v. Forman, 471

F.3d 424, 428 (3d Cir. 2006)). Second, this court remains unconvinced that

transfer would be appropriate. Plaintiffs’ have not pointed to any basis for a New

Jersey court’s ability to exercise personal jurisdiction over defendant Schleig, and

we do not believe that Schleig’s conduct concerning his personal jurisdiction

Case 4:09-cv-00673-YK Document 49 Filed 04/02/10 Page 12 of 14
13

defense could be characterized as a waiver. For these reasons, the court believes

our decision denying plaintiffs’ motion for transfer to the District of New Jersey

does not involve a controlling question of law.

Additionally, we do not believe that certification under § 1292(b) would

materially advance the ultimate termination of this litigation. First, an

interlocutory appeal concerning venue will not resolve any issue remaining in the

instant case. Second, any such appeal will only increase the likelihood, as the

defendants point out, that a stay prior to trial will be required. As such, we fail to

see how certification will materially advance the ultimate termination of this

litigation. 

In light of the foregoing, the court finds that two of the three elements

required for certification under § 1292(b) have not been met. Therefore, the court

will deny the plaintiffs’ alternative motion for certification pursuant to § 1292(b).

IV. Conclusion

In light of the foregoing, the plaintiffs’ “Motion for Reconsideration of

Order Entered February 9, 2010 or in the Alternative for Certification Pursuant to

28 U.S.C. 1292(b)” will be denied. (Rec. Doc. No. 45).

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHELLE BUTZ and BRIAN BUTZ, : No. 4:09-CV-00673

:

Plaintiffs, :

:

v. : (Judge McClure)

:

JAMES SCHLEIG, WATSONTOWN :

TRUCKING COMPANY, JOHN DOE I, :

JOHN DOE II, AND JOHN DOE III, :

:

Defendants. :

ORDER

April 2, 2010

For the reasons set forth in the accompanying Memorandum, IT IS

HEREBY ORDERED THAT:

Plaintiffs’ “Motion for Reconsideration of Order Entered February 9, 2010

or in the Alternative for Certification Pursuant to 28 U.S.C. 1292(b)” is DENIED. 

(Rec. Doc. No. 45).

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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