UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
July 23, 1998
PATRICIA S. TISCHIO, Plaintiff,
BONTEX, INC., JAMES C. KOSTELNI, and DOLORES S. KOSTELNI, Defendants.
The opinion of the court was delivered by: LECHNER
LECHNER, District Judge
Currently pending is a timely motion for reargument (the "Motion for Reargument") filed by the plaintiff, Patricia S. Tischio ("Patricia Tischio"), pursuant to Rule 59(e) and/or Rule 60(b) of the Federal Rules of Civil Procedure and Local Civil Rule 7.1(g). The Motion for Reargument seeks to vacate the 29 June 1998 order that transferred the action (the "Order of Transfer") to the United States District Court for the Western District of Virginia (the "Western District of Virginia"), pursuant to 28 U.S.C. § 1404(a) ("Section 1404(a)"). In the alternative, the Motion for Reargument seeks a stay of the Order of Transfer pending appeal and certification of the Order of Transfer pursuant to 28 U.S.C. § 1292(b) ("Section 1292(b)").
For the reasons set forth below, the Motion for Reargument is denied in its entirety.
A. Procedural History
On 11 March 1998, Patricia Tischio filed a complaint (the "Complaint") against the Defendants in the Superior Court of the State of New Jersey. The Complaint asserts claims for, among other things, breach of an alleged lifetime employment contract, tortious interference with contract and discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. See Complaint.
On 13 April 1998, the Defendants removed the action to this court by filing a notice of removal (the "Notice of Removal"). See Notice of Removal. On 15 April 1998, Bontex filed an amended notice of removal (the "Amended Notice of Removal"). See Amended Notice of Removal.
On 5 May 1998, Bontex filed an answer (the "Bontex Answer") to the Complaint. See Bontex Answer. On the same day, James Kostelni filed an answer (the "James Kostelni Answer") to the Complaint. See James Kostelni Answer. On 6 May 1998, Dolores Kostelni filed an answer (the "Dolores Kostelni Answer") to the Complaint and raised the defense of lack of personal jurisdiction. See Dolores Kostelni Answer.
At a conference on 15 April 1995, the Defendants indicated their intent to file a motion to transfer the action to the Western District of Virginia (the "Motion to Transfer"). A month later, by letter, dated 11 May 1998, (the "Patricia Tischio 11 May 1998 Letter") Patricia Tischio advised that the parties had agreed to a briefing schedule, apparently comfortable to all parties, in connection with the Motion to Transfer. See Patricia Tischio 11 May 1998 Letter. She further advised that all briefs would be submitted by 19 June 1998. Id.
After the Motion to Transfer had been fully briefed by the parties,
Patricia Tischio submitted a letter, dated 22 June 1998, (the "Patricia Tischio 22 June 1998 Letter") seeking permission to file a sur-reply brief in further opposition to the Motion to Transfer. Id. The Patricia Tischio 22 June 1998 Letter is significant because of what it says and what it does not say.
Plaintiff hereby requests permission to submit a short sur-reply in connection with said motion [the Motion to Transfer]. The reason for this request is that Defendants, in their Reply Memorandum of Law, raised new issues as to which Plaintiff should be afforded an opportunity to respond. First, Defendants raised, for the first time, the argument that this Court lacks personal jurisdiction over Defendant Dolores Kostelni. Second, Defendants raise arguments relating to the admissibility and relevance of the testimony of Plaintiff's non-party witnesses.
Plaintiff respectfully requests leave to file a short letter brief in reply to Defendants' newly-raised arguments.
Patricia Tischio 22 June 1992 Letter (emphasis added).
The Patricia Tischio 22 June 1992 Letter clearly seeks leave to file "a short letter brief" to respond to so-called newly raised arguments. These arguments are legal in nature: jurisdiction over Dolores Kostelni and admissibility and relevance of certain testimony of non-party witnesses. All that was sought was the opportunity to brief these issues. No request was made to submit additional facts; no suggestion was made that additional facts were necessary; no suggestion was made that the court did not have all the facts necessary to decide the motion.
Because leave to submit additional data or detail was not sought and because additional briefing was not necessary, the request to submit a "short letter brief" in reply to these so-called newly raised issues was denied. See letter from the Court, dated 25 June 1998.
The Patricia Tischio 22 June 1998 Letter is also significant because it undercuts many of the arguments made by Patricia Tischio in the Motion for Reargument. For example, the last sentence of paragraph six of her affidavit submitted in support of the Motion for Reargument states: "I attempted, through counsel, to convey these facts to the Court in reply to Defendant's responsive motion filings, but was precluded." Patricia Tischio Supplemental Aff. at P 6. As indicated above, there was no request, proffer or even suggestion that Patricia Tischio was attempting to, or needed to, or wanted to, offer additional data or detail in opposition to the Motion to Transfer.
As described more fully below, although Patricia Tischio now submits additional data and detail in support of the Motion for Reargument, these data or detail were not before the court for consideration with regard to the Motion to Transfer. Moreover, none of these data constitutes "new evidence" to justify reconsideration pursuant to either Rule 59(e) or 60(b) of the Federal Rules of Civil Procedure. In addition, no explanation was offered to explain why these data and detail were withheld from the court when the Motion to Transfer was considered.
On 29 June 1998, a forty-seven page letter-opinion (the "29 June 1998 Letter-Opinion") and the Order of Transfer were issued granting the Motion to Transfer and transferring the action to the Western District of Virginia pursuant to Section 1404(a).
After reviewing the 29 June 1998 Letter Opinion, Patricia Tischio now attempts to forward additional data and detail as a basis to suggest this court failed to consider certain facts when issuing the Order of Transfer.
In paragraph two of her supplemental affidavit, Patricia Tischio states in part "a number of crucial facts were, I believe, not before the Court or were overlooked." Patricia Tischio Supplemental Aff. at P 2. Moreover, in her supplemental brief, Patricia Tischio argues "the Court overlooked the facts pertaining to Dolores' (sic) [Kostelni's] New Jersey contacts and the fact that Defendant-Bontex pays plaintiff's travel expenses when plaintiff travels to Virginia for Board Meetings. These facts are set forth in affidavit of Patricia Surmonte Tischio dated July 9, 1998, submitted herewith." Supplemental Brief at 3. As these two statements indicate, these data and detail were not previously before the court. This is true with much of the additional data and detail which were submitted in the affidavits in support of the Motion for Reargument. See Supplemental Brief at 5. ("Their [the witnesses'] proposed testimony, now before the Court in the form of Affidavits appended to Plaintiff's more recent Affidavit, makes clear....") (emphasis added).
As indicated previously, the argument that Patricia Tischio was blocked in her attempt to submit additional data or detail is simply wrong. See Affidavit of Melissa Feldman Michalsky at P 3 ("Plaintiff was deprived of an opportunity to respond") and Supplemental Brief at 7 ("Plaintiff had no opportunity to submit factual material regarding Dolores' (sic) [Kostelni's] contacts with this form.").
As explained, at no time did Patricia Tischio seek to file affidavits or other appropriate documentation containing additional data or detail. She did not suggest she had in her possession additional data, detail or documents necessary for the disposition of the Motion to Transfer or that she was prevented from discovering or offering such data or detail in opposition to the Motion to Transfer. See Patricia Tischio 22 June 1998 Letter (requesting opportunity to submit "a short letter brief " regarding issues of personal jurisdiction over Dolores Kostelni and concerning admissibility and relevance of testimony).
There was never a suggestion that Patricia Tischio did not have an adequate period of time in which to oppose the Motion to Transfer. On the contrary, her attorney wrote to the court advising of an agreement among the parties on a schedule with regard to submission of briefing concerning the Motion to Transfer. See 11 May 1998 letter.
Patricia Tischio is a resident of the State of Connecticut. See Complaint; Patricia Tischio Aff. PP 6(i), 10. Bontex is a publicly owned corporation that is incorporated in the State of Virginia and maintains its principal place of business in Buena Vista, Virginia. See Complaint P 2; James Kostelni Aff. PP 2-3. James Kostelni is a resident of the State of Virginia and is the President, Chief Executive Officer and Chairman of the Board of Directors of Bontex.
See Complaint P 3; James Kostelni Aff. P 2. Dolores Kostelni is a resident of the State of Virginia. See Dolores Kostelni Aff. P 1. She is married to James Kostelni and is the sister of Patricia Tischio. See Complaint P 3; James Kostelni Aff. P 1; Dolores Kostelni Aff. P 1. Dolores Kostelni is neither a director, nor an officer nor an employee of Bontex. See Dolores Kostelni Aff. P 2.
Bontex is the successor corporation to Georgia-Bonded Fibers, Inc. ("Georgia-Bonded"). See Complaint P 2. Georgia-Bonded was a manufacturing corporation founded in 1934 by the father of Patricia Tischio, Hugo N. Surmonte ("Hugo Surmonte"). It was incorporated under the laws of the State of New Jersey. See id. PP 1-2; Patricia Tischio Aff. P 2. According to Patricia Tischio, Georgia-Bonded/Bontex maintained its principal place of business in Newark, New Jersey until October 1997. See Complaint P 2; Patricia Tischio Aff. P 2. The Defendants dispute the assertion that Georgia-Bonded/Bontex maintained its principal place of business in Newark until 1997. See Reply Brief at 11 n.1.
Bontex manufactures and markets blastomeric saturated cellulose fiberboard that is used in a variety of consumer products. See James Kostelni Aff. P 4. The sole manufacturing facility of Bontex is located in Buena Vista, Virginia (the "Virginia Facility"). See id. P 5. Approximately ninety-seven individuals are employed by Bontex at the Virginia Facility. See id. P 5. The majority of the corporate records of Bontex are located at the Virginia Facility. See Dugan Aff. PP 4-6, 8-10.
Bontex currently maintains a sales office and warehouse facility in Newark, New Jersey (the "New Jersey Facility"). See James Kostelni Aff. P 8. Two full-time staff and one part-time warehouse employee are employed by Bontex at the New Jersey Facility. See id. P 8. The New Jersey Facility is scheduled to be permanently closed by Bontex before the end of 1998. See id. P 8. The closure of this facility is one of the reasons for this dispute. See Complaint.
In 1989, allegedly at the request of Hugo Surmonte, Patricia Tischio joined Bontex as a full-time employee at the New Jersey Facility. See id. P 4; Patricia Tischio Aff. P 3. She later became a member of the Bontex Board of Directors (the "Bontex Board").
See Complaint P 1; James Kostelni Aff. P 8. According to Patricia Tischio, Hugo Surmonte and James Kostelni promised that, upon joining Bontex, she would assume the positions of Corporate Secretary and Office Manager and would be trained in those capacities. See Patricia Tischio Aff. P 4. Patricia Tischio also asserts Hugo Surmonte promised her that, if she left her then current employment to work for Bontex, she would have "employment with Bontex in Newark or the vicinity for as long as [she] desired." Id. P 3; see Complaint PP 4, 6.
Patricia Tischio contends that, following the death of Hugo Surmonte in October 1994, James Kostelni began transferring the important operations of Bontex from the New Jersey Facility to the Virginia Facility. See Complaint P 9; Patricia Tischio Aff. P 5. Patricia Tischio contends her responsibilities at Bontex were diminished because of the transfer of these operations. See Patricia Tischio Aff. P 5.
On 25 June 1997, a meeting of the Bontex Board was held in Lexington, Virginia. See James Kostelni Aff. P 8. At the meeting, all members of the Bontex Board, with the exception of Patricia Tischio, voted to close the New Jersey Facility permanently. See id. PP 8, 11. Patricia Tischio attended the meeting but abstained from voting on the closure of the New Jersey Facility. See id. P 8. On the same day, Patricia Tischio was advised by Bontex that her position would be terminated, effective January 1998. See Complaint P 9; Patricia Tischio Aff. P 5. It appears she is still a member of the Bontex Board.
Patricia Tischio contends her termination is, among other things, a breach of the alleged lifetime employment contract she had with Bontex. See Complaint PP 4-12. She also contends her termination is discriminatory because Bontex has decided to retain as an employee in New Jersey an individual employed at the New Jersey Facility, Simon Grubin ("Grubin"), who is male and younger than she. See id. PP 17-20.
C. The 29 June 1998 Letter-Opinion
In arguing for the transfer of this action to the Western District of Virginia, the Defendants contended that forum is more convenient for the majority of the parties and witnesses and such transfer would best serve the interests of justice. See Moving Brief at 1. The Defendants also argued most of the sources of proof are located in the Western District of Virginia. See id.
In arguing against the transfer of this action to the Western District of Virginia, Patricia Tischio argued that such transfer would be improper because twelve potential non-party witnesses reside in or near New Jersey and also because she contends New Jersey law will govern the issues involved in the action. See Opposition Brief at 1.
In the 29 June 1998 Letter-Opinion, it was determined that both the private and public interests favored the transfer of the action. See 29 June 1998 Letter-Opinion. It was observed that the choice of this forum by Patricia Tischio was entitled to less deference because she is not a resident of New Jersey. See id. at 28. In addition, it was determined that the choice of this forum by Patricia Tischio was entitled to even less deference because the events giving rise to the instant action occurred predominantly, if not entirely, in Virginia - the state where the decisions to close the New Jersey Facility and to terminate Patricia Tischio were made. See id.
In the 29 June 1998 Letter-Opinion it was also observed that none of the parties is based in New Jersey. Accordingly, the adjudication of this matter in this district would require all parties to travel to New Jersey. See id. at 29-30.
In the 29 June 1998 Letter-Opinion it was determined that the weight of documentary evidence relevant to this action is located in the Western District of Virginia. See id. at 39-40. Moreover, it was determined that a significant number of material witnesses were located in Virginia. See id. at 30-39.
Finally, because the events giving rise to the instant action occurred predominantly, if not entirely, in Virginia, it was determined that the public interests also favored a transfer of the action. See id. at 42-47.
Patricia Tischio has moved for reargument of the Order of Transfer pursuant to Rule 59(e) ("Rule 59(e)") and/or Rule 60(b) ("Rule 60(b)") of the Federal Rules of Civil Procedure. The standard for a Rule 59(e) motion is analogous to the standard for a Rule 60(b) motion, see Robinson v. Red Rose Communications, Inc., 1998 U.S. Dist. LEXIS 6506, No. 97-6497, 1998 WL 221028, at *3 (E.D.Pa. May 5, 1998) (citing 11 Charles Wright et al., Federal Practice and Procedure: Civil 2d § 2808, at 86 (2d ed. 1995)); both standards will be discussed.
A. Motion for Reconsideration Standard of Review
Rule 59(e) provides:
(e) Motion to Alter or Amend Judgment. Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment.
Fed. R. Civ. P. 59(e). Rule 59(e) permits a plaintiff to move to alter or amend a judgment within ten days of entry of an order. See id.; Database Am. v. Bellsouth Advertising & Publ., 825 F. Supp. 1216, 1219-20 (D.N.J. 1993). Local Civil Rule 7.1(g) of the United States District Court for the District of New Jersey ("Local Rule 7.1(g)")
requires the moving party to set forth "concisely the matters or controlling decisions which counsel believes the Judge or Magistrate Judge has overlooked." Local Rule 7.1(g); see North River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 n.38 (3d Cir. 1995); Elizabethtown Water Co. v. Hartford Cas. Ins. Co., 998 F. Supp. 447, 459 (D.N.J. 1998); Database, 825 F. Supp. at 1220.
A motion for reconsideration pursuant to Rule 59(e) is designed 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), cert. denied, 476 U.S. 1171, 90 L. Ed. 2d 982, 106 S. Ct. 2895 (1986). As such, a Rule 59(e) motion may be made for only one of three reasons: (1) an intervening change in the controlling law has occurred, (2) evidence not previously available has become available, or (3) it is necessary to correct a clear error of law or prevent manifest injustice. See North River, 52 F.3d at 1218; Elizabethtown Water Co., 998 F. Supp. at 459; Smith v. City of Chester, 155 F.R.D. 95, 96- 97 (E.D.Pa. 1994); Database, 825 F. Supp. at 1224; Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D.N.J. 1993), aff'd, 37 F.3d 1485 (3d Cir. 1994); Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp. 1406, 1419 (D.Md. 1991).
A motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised in connection with an earlier motion. See Database, 825 F. Supp. at 1220; Bermingham, 820 F. Supp. at 856; Weyerhaeuser, 771 F. Supp. at 1419. "[A] motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple." In re Christie, 222 B.R. 64, 1998 Bankr. LEXIS 696, at *8, 1998 WL 310493, at *3 (Bankr.D.N.J. 1998) (citing Database Am., 825 F. Supp. at 1220). "A party seeking reconsideration must show more than a disagreement with the Court's decision, and 'recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'" Database, 825 F. Supp. at 1220; G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990); see also Elizabethtown Water Co., 998 F. Supp. at 459; Egloff v. New Jersey Air Nat'l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988) (denying motion for reconsideration where plaintiff failed to cite any pertinent case law or fact court may have overlooked). Nor is a motion for reconsideration properly grounded on a request that a court rethink a decision already made. See Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D.Pa. 1993). A party may not submit evidence which was available to it prior to the issuance of the challenged order. See Smith, 155 F.R.D. at 97. All of the data and detail in support of the Motion for Reargument were available and could have been submitted for the Motion to Transfer - only a portion was so submitted.
When a motion for reconsideration raises only a disagreement by a party with a decision of the court, that dispute "should be dealt with in the normal appellate process, not on a motion for reargument" pursuant to Local Rule 7.1(g). Database, 825 F. Supp. at 1220; Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988); see Bermingham, 820 F. Supp. at 856.
B. Standard of Review for Rule 60(b) Motion
Rule 60(b) provides, in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment....
Fed. R. Civ. Pro. 60. A motion filed pursuant to Rule 60(b) is "addressed to the sound discretion of the trial court guided by accepted legal principles applied in light of all the relevant circumstances." Ross v. Meagan, 638 F.2d 646, 648 (3d Cir. 1981); see Dietsch v. U.S., 2 F. Supp. 2d 627, 1998 U.S. Dist. LEXIS 8127, No. 94-5400, 1998 WL 281346, at *4-5 (D.N.J. Apr. 14, 1998); Smith v. Holtz, 879 F. Supp. 435, 438 (M.D.Pa. 1995), aff'd, 87 F.3d 108 (3d Cir. 1996), cert. denied, U.S. , 117 S. Ct. 611 (1996). Rule 60(b), however, "does not confer upon the district courts a 'standardless residual of discretionary power to set aside judgments.'" Moolenaar v. Government of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987). Rather, relief under Rule 60(b) is available only under such circumstances that the "'overriding interest in the finality and repose of judgments may properly be overcome.'" Harris v. Martin, 834 F.2d 361, 364 (3d Cir. 1987) (quoting Martinez-McBean v. Government of the Virgin Islands, 562 F.2d 908, 913 (3d Cir. 1977)); see Moolenaar, 822 F.2d at 1346; Wilson v. Fenton, 684 F.2d 249, 251 (3d Cir. 1982); Mayberry v. Maroney, 529 F.2d 332, 337 (3d Cir. 1976) (Gibbons, J., concurring); Smith, 879 F. Supp. at 438. "The remedy provided by Rule 60(b) is 'extraordinary, and [only] special circumstances may justify granting relief under it.'" Moolenaar, 822 F.2d at 1346 (citations omitted). As explained in Kock v. Government of the Virgin Islands, 811 F.2d 240 (3d Cir. 1987),
Rule 60(b) must be applied 'subject to the propositions that the finality of judgments is a sound principle that should not lightly be cast aside, [and] that clause (6) is not a substitute for appeal....' It is intended to be a means for accomplishing justice in extraordinary situations, and so confined, does not violate the principle of the finality of judgments.
Id. at 246 (citations omitted).
C. Application of Law to Facts of Case
In the Supplemental Brief, Patricia Tischio states "the Court overlooked significant facts presented by the Plaintiff in the Affidavit of Patricia Tischio, dated May 20, 1998 and overlooked controlling law." Supplemental Brief at 2. As such, Patricia Tischio appears to be seeking relief pursuant to Rule 59(e) and Rule 60(b) to "correct manifest errors of law or fact." Harsco, 779 F.2d at 909; see North River, 52 F.3d at 1218; Elizabethtown Water Co., 998 F. Supp. at 459. In addition, because she has submitted additional affidavits in connection with the Motion for Reargument, it appears Patricia Tischio claims to be presenting newly discovered evidence. However, there is nothing to establish, much less suggest, such new evidence was newly discovered which through the exercise of due diligence could neither have been discovered nor submitted in connection with the Motion to Transfer.
A review of the Supplemental Brief reveals that Patricia Tischio is merely expressing her disagreement with the 29 June 1998 Letter-Opinion and requesting that the Order of Transfer be reconsidered. As mentioned, a motion for reargument should not be grounded upon a request that a court rethink a decision already made. See Glendon 836 F. Supp. at 1122.
Patricia Tischio contends she was precluded from conveying certain facts which were allegedly relevant to the Motion to Transfer because her request to submit a letter brief was denied. See Patricia Tischio Supplemental Aff. P 6. This contention is not accurate; it is misleading. In fact, Patricia Tischio never requested an opportunity to submit additional data or detail. As mentioned, the Patricia Tischio 22 June 1998 Letter merely requested permission to file a letter brief, not additional data or detail. See Patricia Tischio 22 June 1998 Letter. Facts and evidence may only be submitted by way of an affidavit or other appropriate documentation. The legal issues involved had been adequately briefed by the parties. Therefore, the request by Patricia Tischio to submit a letter brief in reply was denied. See Exhibit B to Michalsky Aff. At no time prior to the issuance of the Order of Transfer did Patricia Tischio request an opportunity to submit additional affidavits or any other documentation.
The Supplemental Brief asserts "the Court's June 29 letter-opinion erroneously overlooked the crucial New Jersey witnesses and evidence in this case." Supplemental Brief at 5. To the contrary, the 29 June 1998 Letter-Opinion expressly addressed and rejected the argument by Patricia Tischio that the location of her proffered witnesses warranted the adjudication of this matter in New Jersey. See 29 June 1998 Letter-Opinion at 34-39. It was observed that, based upon the submissions for the Motion to Transfer, most of the witnesses proffered by Patricia Tischio did not have personal knowledge of the promises Hugo Surmonte and James Kostelni allegedly made to her. The fact that Patricia Tischio stated in her original affidavit that Gray, Fittin and Kaminski "also have knowledge of Defendant-J. Kostelni's promises to my mother to the effect that he would not close the New Jersey Facility or terminate my employment at Bontex" is not sufficient. See Patricia Tischio Aff. P 6. This statement did not indicate that these individuals had first-hand knowledge of the alleged promises by James Kostelni to Marie Surmonte. Moreover, none of these witnesses submitted affidavits in opposition to the Motion to Transfer.
In an attempt to support the Motion for Reargument, Patricia Tischio submitted affidavits of Gray, Fittin and Kaminski. See Gray Aff.; Fittin Aff.; Kaminski Aff. None of these affidavits, however, sets forth information that was unavailable to Patricia Tischio at the time she submitted opposition to the Motion to Transfer. See id. In addition, Patricia Tischio has not alleged she was unable to obtain affidavits from Gray, Fittin and Kaminski in time to oppose the Motion to Transfer.
A party may not submit evidence which was available prior to the issuance of the challenged order. See Smith, 155 F.R.D. at 97. Patricia Tischio cannot withhold data or detail in connection with the Motion to Transfer, wait for a decision on that motion and then attempt to dissect the decision and submit information which should have been presented earlier. As such, the affidavits of Gray, Fittin and Kaminski will not be considered. See Harsco, 779 F.2d at 909 (stating district court properly did not consider affidavits in connection with motion for reconsideration where affidavits could have been submitted in connection with prior motion for summary judgment).
Even if the data and detail contained in the affidavits of Gray, Fittin and Kaminski were to be considered, they would not warrant vacating the Order of Transfer. For an order to be set aside on account of newly discovered evidence pursuant to Rule 60(b) (2), the new evidence must (1) be material and not merely cumulative, (2) could not have been discovered before the issuance of the order through the exercise of reasonable diligence and (3) would probably have changed the outcome of the matter. See Compass Technology, Inc., v. Tseng Laboratories, Inc., 71 F.3d 1125, 1130 (3d Cir. 1995). The party requesting such relief "bears a heavy burden" which requires "more than a showing of the potential significance of the new evidence." Id.
The data or detail in the affidavits submitted in support to the Motion for Reargument do not qualify as new evidence. In addition, the Motion to Transfer would have been granted and the action would still have been transferred to the Western District of Virginia even if the supplemental affidavit of Patricia Tischio and the affidavits of Gray, Fittin and Kaminski were submitted with the Motion to Transfer. As mentioned, none of the parties are residents of New Jersey. See 29 June 1998 Letter-Opinion at 29-30. In addition, most of the material witnesses who decided to close the New Jersey Facility and to terminate Patricia Tischio are located in Virginia. See id. at 30-39. These decisions were made in Virginia. Finally, most of the relevant documents are located in Virginia. See id. at 39-40.
Patricia Tischio also asserts "this Court should reconsider its finding that 'it appears Dolores [Kostelni] is not subject to personal jurisdiction in New Jersey'" because she waived the defense of lack of jurisdiction by failing to raise it in the Motion to Transfer. See Supplemental Brief at 6-8. This assertion ignores the fact that the action was transferred pursuant to Section 1404(a), not Section 1406(a). The action was transferred for the convenience of the parties and witnesses and because of the ease of access to sources of proof. See 28 U.S.C. § 1404(a). Even if Dolores Kostelni is subject to jurisdiction in New Jersey, the convenience of the parties and witnesses and the access to sources of proof still favor the transfer of the action to the Western District of Virginia. See 29 June 1998 Letter-Opinion.
In the Supplemental Brief, Patricia Tischio also contends the 29 June 1998 Letter-Opinion overlooked controlling law. Specifically, Patricia Tischio contends the opinion overlooked the fact that New Jersey law allegedly will govern this dispute and that the testimony of Gray will be necessary to authenticate the 25 November 1994 Statement signed by Marie Surmonte. Neither contention, even if accurate, would warrant vacating the Order of Transfer.
The 29 June 1998 Letter-Opinion stated that a determination of the applicable law could not be made because the issue was not adequately briefed by the parties. See 29 June 1998 Letter-Opinion. More importantly, the 29 June 1998 Letter-Opinion stated that, even if New Jersey law were applicable, the other private and public factors weighed heavily in favor of transfer to the Western District of Virginia. See id. This remains so even considering the additional information submitted in connection with Motion for Reargument.
Based on the foregoing, the Motion for Reargument is denied.
C. Request for Stay of Transfer Pending Appeal
As mentioned, the Motion for Reargument also seeks a certification of the Order of Transfer pursuant to 28 U.S.C. § 1292(b) ("Section 1292(b)") and a stay of the Order of Transfer pending appeal.
A district court has jurisdiction to certify a question pursuant to Section 1392(b) even though it has ordered the action transferred to another district, provided that the physical transfer of the file is stayed pending a decision on the motion to certify. See Hudson United Bank v. Chase Manhattan Bank, 43 F.3d 843, 845 n.4 (3d Cir. 1994).
Orders transferring the venue of an action to another district are interlocutory, not final, in nature. See McCreary Tire & Rubber Co. v. CEAT, S.p.A., 501 F.2d 1032, 1034 (3d Cir. 1974); see also 28 U.S.C. § 1291 ("Section 1291").
Accordingly, such orders are not immediately appealable. See In re Emerson Radio Corp., 52 F.3d 50, 53 (3d Cir. 1995); Carteret Sav. Bank v. Shushan, 919 F.2d 225, 228-30 (3d Cir. 1990) (citing Nascone v. Spudnuts, Inc., 735 F.2d 763, 764 (3d Cir. 1984); McCreary Tire & Rubber Co. v. CEAT S.p.A., 501 F.2d 1032, 1034 (3d Cir. 1974)). "Mandamus is therefore the appropriate mechanism for reviewing an allegedly improper transfer order."
See Sunbelt Corp. v. Noble, Denton & Assocs., Inc., 5 F.3d 28, 30 (3d Cir. 1993) (citing Bloom v. Barry, 755 F.2d 356, 357 (3d Cir. 1985); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168-69 (3d Cir. 1982); Shutte v. Armco Steel Corp., 431 F.2d 22, 23 (3d Cir. 1970), cert. denied, 401 U.S. 910, 27 L. Ed. 2d 808, 91 S. Ct. 871 (1971)).
Patricia Tischio did not submit any facts, law or argument in her Supplemental Brief which support of her request for certification of the Order of Transfer. The Supplemental Brief merely states: "The Court should reconsider and vacate its June 29, 1998 order or, in the alternative, should stay enforcement of said order pending appeal and should certify said order as ripe for appeal under 28 U.S.C. § 1292(b)." This statement is simply inadequate to warrant certification.
Based upon a review of the controlling law, it appears certification is inappropriate in this case. The Order of Transfer does not involve "a controlling question of law as to which there is substantial ground for difference of opinion" such that "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b); see Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.), cert. denied, 419 U.S. 885, 42 L. Ed. 2d 125, 95 S. Ct. 152 (1974); Avellino v. Herron, 991 F. Supp. 730, 734 (E.D.Pa. 1998). Moreover, it is not the law concerning a transfer pursuant to Section 1404(a) with which Patricia Tischio is aggrieved. It appears she is dissatisfied with the ruling, as based upon the facts presented at the time the Motion to Transfer was decided. There is no reason to certify the issue or stay the transfer pending an attempt to perfect an interlocutory appeal from a procedural order.
For the foregoing reasons, the Motion for Reargument is denied in its entirety.
Dated: 23 July 1998