The opinion of the court was delivered by: WOLIN
In the underlying action, plaintiffs, eighteen Chevron or Gulf dealers in New Jersey, Pennsylvania, and Delaware, challenge the transfer of their service station leases from Chevron to Cumberland Farms as violative of the Petroleum Marketing Practices Act. Two summary judgment motions have already been heard. Before the Court today are three motions: (1) Defendant-Chevron's Motion for Partial Reconsideration of the November 4, 1987 summary judgment motion; (2) Three Plaintiffs' Motion for Equitable Relief; and (3) Plaintiffs' Motion for Reversal of Magistrate Hedges' December 4, 1987 Order Denying a Special Protective Order.
Defendant-Chevron brings this motion pursuant to Fed.R.Civ.P. 52 and Local Rule 12(I) for reconsideration, alteration and/or amendment of the Opinion and Order entered on November 4, 1987, in connection with defendant's motion for summary judgment. Specifically, Chevron seeks the alteration of "those portions of the Opinion and Order wherein it was held as a matter of fact that Chevron had entered into a franchise agreement with plaintiff Wesley R. Pinson d/b/a West End Gulf after the occurrence of changes in relevant facts and circumstances which led to Chevron's determination to withdraw from the marketing of motor fuel in the State of New Jersey." In support of its application, Chevron has submitted supplemental affidavits which provide the Court with information not previously before the Court.
Plaintiff-Wesley Pinson (West End Gulf), argues in response to defendant's motion that the standards set forth for reconsideration under Fed.R.Civ.P. 52 and Local Rule 12(I) have not been met. In addition, beyond the procedural problems with defendant's motion, plaintiff contends that the motion should be denied as it attempts to raise issues of fact where none exist. This Court agrees.
At the outset, the Court notes that while Fed.R.Civ.P. 52(b) provides in part that "upon motion of a party made not more than 10 days after entry of judgment the Court may amend its findings or make additional findings and may amend the judgment accordingly," a district court does not engage in fact-finding within the meaning of Fed.R.Civ.P. 52 on a motion for summary judgment. See DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1138, n.2 (3d Cir. 1980). It follows then, that defendant's motion, pursuant to Fed.R.Civ.P. 52, for reconsideration or amendment of findings made in connection with the summary judgment motion is procedurally inappropriate.
Moreover, although the Delong opinion indicates that a motion to alter or amend, brought pursuant to Fed.R.Civ.P. 59(e), is the appropriate rule to proceed under in such an instance, this Court notes that defendant's motion for amendment was not filed within the ten day time limitation set forth in Fed.R.Civ.P. 59(e). The significance of such is, of course, in its nonrelaxibility as compared with the more flexible time limitation set forth in Fed.R.Civ.P. 52(b). See Practice Comments to Fed.R.Civ.P. 59(e). Thus, despite the consent of all parties and the court to file this motion for reconsideration out of time under Rule 52(b), such cannot be allowed under Rule 59(e).
Furthermore, Local Rule 12(I) provides, in pertinent part, that "there shall be served with the notice [of motion for reargument] a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court has overlooked" (emphasis added). Defendant has submitted several supplemental affidavits along with a memorandum in support of its motion which sets forth the following items which counsel believes the Court has overlooked:
(1) Cumberland Farms submitted four different bids to Chevron and several letters modifying these bids;
(2) The bid tentatively accepted by Chevron's Board of Directors on November 7, 1985 was that set forth in Cumberlands telex of October 30, 1985 and letter of October 30 which was received by Chevron on October 31, 1985;
(3) A Chevron financial statement was completed and executed on August 27, 1985 between Pinson and Chevron;
(4) Pinson completed a financial statement for the Somerset Trust Company in August 27, 1985;
(5) Pinson completed an application for Chevron dealership and a Chevron dealer credit application on September 5, 1985;
(6) On October 9, 1985, Chevron approved Pinson's application for credit approval;
(8) The lease was delivered to Pinson on or before October 23, 1985; and
(9) Pinson may have signed the lease on October 23, 1985.
Only one of the above matters (#7), which defendant now seeks the Court to recognize was presented in affidavits or exhibit form to the Court on the motion for summary judgment. See, Exhibit 2M to declaration of Jeffrey Schmidt. The other factors are first before the Court for consideration on this motion for reconsideration. Local Rule 12(I) does not, however, contemplate a Court looking to matters which were not originally presented, but which have since been provided for consideration. DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1140 (3d Cir. 1980). As the Court of Appeals for the Third Circuit noted in addressing the contention that a district court had abused its discretion in denying a motion for reargument on summary judgment:
[Plaintiff] does not assert that the evidentiary material which it later sought to introduce on the motion for reargument was unavailable or unknown to it at the time of the original hearing. Nor does such reason ...