Opinion
Civil Action No. 01-3418.
November 9, 2005
ORDER
AND NOW, this 8th day of November 2005, upon consideration of defendant's motion for reconsideration of the Court's October 31, 2005 Order (Doc. No. 59), it is hereby ORDERED that defendant's motion (Doc. No. 59) is DENIED.
A party may raise a motion for reconsideration within ten days from the date of entry of the judgment. See Fed.R.Civ.P. 59(e); Loc. R. Civ. P. 7.1(g). A motion for reconsideration should be granted "sparingly." Synthes v. Globus Medical Inc., 2005 WL 562764, at *1 (E.D. Pa. March 7, 2005). A motion for reconsideration may only be granted when the plaintiff demonstrates: (i) an intervening change in controlling law; (ii) new evidence that was not previously available; or (iii) the need to correct a clear error of law or fact or to prevent manifest injustice. See, e.g., North River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995). In other words, a motion for reconsideration may not be based upon new arguments that could have been raised in support of the original motion. See, e.g., Agere Systems, Inc. v. Broadcom Corp., 2004 WL 1970111, at *1 (E.D. Pa. Sep. 7, 2004). Nor should a motion for reconsideration be used as a vehicle to "reconsider repetitive arguments that have already been fully examined by the court." EEOC v. Dan Lepore Sons Co., 2004 WL 569526, at *2 (E.D. Pa. March 15, 2004).
Defendant's motion fails on several, independent grounds. First, defendant's motion fails to meet the threshold standard for a reconsideration motion. This Court has exhaustively considered whether defendant was acting within the scope of his employment within the meaning of 1 Pa. C.S.A. § 2310 on two previous occasions. ( See October 31, 2005 Opinion, at 15-16; October 28, 2003 Opinion, at 14). The instant motion for reconsideration requests in a repetitive fashion a re-evaluation of those prior analyses, based upon an argument identical to that considered by the Court in its October 28, 2003 and October 31, 2005 rulings. Accordingly, defendant's instant motion fails to assert a proper basis for reconsideration. See, e.g., Yang v. AstraZeneca, 2005 WL 2095072, at *1 (E.D. Pa. Aug. 29, 2005) ("a motion for reconsideration is not intended to provide losing party with a second bite at the apple"); AstraZeneca AB v. Mutual Pharmaceutical Co., Inc., 2002 WL 32348145, at *4 (E.D. Pa. Oct. 3, 2002) (refusing to revisit merits of Court's substantive analysis on motion for reconsideration because dissatisfaction with Court's ruling not proper basis for such motion); Tobin v. General Electric Co., 1998 WL 31875, at *3 (E.D. Pa. Jan. 27, 1998) (noting that Court may summarily deny motion for reconsideration when it presents repetitive arguments that have previously been fully examined).
Second, assuming arguendo that this Court did not exhaustively examine defendant's sovereign immunity argument on two previous occasions, this Court again finds that genuine issues of material fact preclude summary judgment on the issue of whether defendant was acting within the scope of his employment when he allegedly assaulted and then fabricated evidence against plaintiff. Under Pennsylvania law, although a forbidden or criminal act may be within the scope of an employee's employment, the resolution of this factual question ordinarily falls within the province of the jury. See, e.g., Orr v. William J. Burns Int'l Detective Agency, 12 A.2d 25, 27 (Pa. 1940) ("it is ordinarily a question for the jury whether or not a particular act comes within the scope of a servant's employment"); Butler v. Flo-Ron Vending Co., 557 A.2d 730, 646 (Pa.Super.Ct. 1989) (although performance of intentional or criminal acts may be within course of employment, this issue is "ordinarily a question for the jury"). In this instance, a jury must resolve the genuine issues of material fact that exist as to whether defendant's allegedly unprovoked assault, arrest, and intentional fabrication of evidence against plaintiff, after plaintiff requested aid for a seizure victim, were actuated by a purpose to serve defendant's employer, the Pennsylvania Department of Probation and Parole, and whether this conduct was of the kind and nature that defendant was employed to perform as a parole agent. See Restatement (Second) of Agency § 228 (1958) (listing standard for resolving scope of employment question); id. § 229, comment e ("fact that act is done at an unauthorized place or time or is actuated by a purpose not to serve the master indicates that the act is not within the scope of the employment"); Barry v. Manor Care, Inc., 1999 WL 257663, at *4 (E.D. Pa. April 29, 1999) (whether alleged assault of nursing home resident took place within nursing assistant's scope of employment is question of fact for jury); Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa.Super.Ct. 1979) ("If an assault is committed for personal reasons or in an outrageous manner, it is not actuated by an intent of performing the business of the employer and is not done within the scope of employment").
Because a scope of employment analysis is driven by the unique facts of a particular case, this Court need not distinguish each of the cases cited by defendant in its motion for reconsideration. Nonetheless, it is clear that these cases are readily distinguishable from the factual predicate of this particular case. For example, it is not clear that the interests of defendant's employer were served by defendant's decision to assault plaintiff, rather than to help a seizure victim in the waiting room of the Pennsylvania Board of Probation and Parole, and then to manufacture evidence of a fictitious assault committed by plaintiff against a second probation agent. See, e.g., Brumfield v. Sanders, 223 F.3d 376, 381 (3d Cir. 2000) (defendant correction officers acted within scope of employment by complying with employer's request to sign affidavits containing false facts about plaintiff's job performance during course of investigation against employer); Haas v. Barto, 829 F. Supp. 729, 734 (M.D. Pa. 1993) (civilian employee acts within scope of employment by retrieving equipment in an aggressive manner because employer benefitted from retrieval of work equipment, regardless of existence of personal animosity). Nor does plaintiff allege that defendant was acting within the scope of his employment in his amended complaint. See, e.g., Pierce v. Montgomery County Opportunity Bd., Inc., 884 F. Supp. 965, 972 (E.D. Pa. 1995) (state defendants entitled to sovereign immunity at motion to dismiss stage when plaintiff's complaint avers that defendants acted within scope of employment or provides specific description of defendants performing state functions); La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa.Commw. 1992) (officer entitled to sovereign immunity on state law abuse of process, malicious prosecution, and false arrest claims when plaintiff alleges in complaint that intentional torts committed during scope of employment).
In summary, this Court finds that defendant has not articulated an appropriate reason for this Court to reconsider its October 31, 2005 Order. Furthermore, even if this Court reached the substantive merit of defendant's argument, this Court would reiterate that genuine issues of material fact preclude summary judgment on plaintiff's state law claims, as discussed in this Court's October 28, 2003 and October 31, 2005 rulings.
In addition, even if this Court was to reconsider its denial of defendant's summary judgment motion as to the state law claims, the Court would choose not to reach the merit of these claims, and, instead, would remand to the Philadelphia Court of Common Pleas pursuant to 28 U.S.C. 1367(c)(3) without determining whether they are barred by the immunity principles contained within 1 Pa. C.S.A. § 2310.