The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court is Plaintiff Post Marine Co., Inc.'s ("Post") Motion for Reconsideration, and Defendant Cook Composites and Polymers Co.'s ("CCP") Cross-Motion for Clarification and Reconsideration of this Court's Opinion and Order dated July 26, 2007 (the "Opinion" and "Order"). For the reasons that follow, the Motions will be partially granted and partially denied.
Upon a motion for reconsideration, a court may alter or amend its decision if "the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion . . . or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); see also L. Civ. R. 7.1(I).
Post seeks reconsideration of the Court's grant of summary judgment on its fraudulent misrepresentation claim in Count VII based upon the Court's ruling that Post stopped using the 953 Series gel coat in 2002. Post contends that while it only used the 953 Series in manufacturing its boats through August, 2002, it continued to use it to repair cracked boats through 2005, in purported reliance on CCP's continued representations about the quality of the 953 Series gel coat.
The Court's factual finding as to the date Post ceased using the 953 Series gel coat is, however, is premised upon Post's express contention that "Post stopped using CCP gel coat in 2002." (Post's S.J. Br., p.8, Docket # 108)(emphasis added). Based upon this statement, the Court concluded in its Opinion that "Post stopped using CCP gel coat in 2002." (Opinion p.3).
Upon a further review of the record and Post's reconsideration motion, the Court still finds that Post stopped using the 953 Series gel coat in the manufacture of its boats during 2002. The precise date on which Post discontinued use of the 953 Series in manufacture, however, is unclear from the record.*fn1 In its Opinion, the Court found that CCP published new test results for the elongation of the 953 Series in January of 2002. (Opinion p.20). Thus, to the extent that Post manufactured boats using the 953 Series after CCP published the new elongation information in January of 2002, the motion for reconsideration will be granted, and CCP's motion for summary judgment will be denied.
As to Post's use of the 953 Series for repairing its boats through 2005, both in its briefing for the motions for summary judgment and the motions for reconsideration, Post offers contradictory statements, makes numerous factual assertions without citation to the record, and mis-cites the voluminous record.*fn2 In support of its motion for reconsideration, Post relies upon: (1) Kenneth Jensen's deposition; (2) its brief in support of its motion for summary judgment; and (3) its supplemental answers to interrogatories. In its reconsideration brief, Post quotes from Jensen's deposition and cites to it in three places, each time indicating that it is located in Exhibit 1 to Michael Weisz's Second Supplemental Certification. Exhibit 1, however, is the deposition of Joseph Martorana, which has no bearing on the instant motion.*fn3
Post next relies upon a statement contained on page 59 of its 60-page summary judgment brief as proof that it used the 953 Series through 2005, despite the fact that it stated on page 8 of the same brief that it stopped using CCP's gel coat in 2002. On the concluding pages of its summary judgment brief, Post states,
[I]n January of 2002, CCP published new values for the 953 gel coat . . . This information was never provided to Post or Viking. In 2003, when Post asked CCP for help in determining the cause and solution of the cracking problem, none of this information was disclosed to them . . . . The problem is that Post had been using the 953 gel coat to fix boats with gel coat cracking since 2003 . . . . In Viking's case, it continued using the gel coat in production through the middle of 2004.
(Post's S.J. Br., p.58-59, Docket # 108)(emphasis added).
Finally, although Post failed to cite to this exhibit in its summary judgment briefing, Post now relies upon its fourth supplemental answers to interrogatories, Weisz Certification Exhibit 4, which Post describes as "setting forth that boats had been repaired with 953 Series gel coat up through 2005, and that boats that had been previously repaired with 953 Series gel coat have cracked again." (Post Recon. Br., p. 4). Post does not cite to any specific portion of the document, but apparently relies upon the entire exhibit.
The exhibit contains multiple charts, many of which contain information that is inapposite to Post's Reconsideration motion. Relevant are interrogatories 20 and 23. Number 20 asks for customer complaints that Post received regarding the 953 Series gel coat and actions taken in response to such complaints. In response, Post's chart indicates that complaints were made into 2006, and that repairs were made after 2002. It does not state, however, the nature of such repairs, or whether any such repairs were made using the 953 Series gel coat.
In interrogatory 23, Post is asked to "describe with particularity all repairs made to boats by Post in connection with damage allegedly related to the 953 Series Gel Coat." Post lists 13 boats, 11 of which it purportedly repaired using the 953 Series. Included in this response are the hull numbers of the damaged boats, and the type of gel coat that Post used in re-application. When comparing this response to the first response, the Court notes that, together, they ...