Author’s note: Space limitations do not permit supporting citations. Complete eastern district legal citations for this article will be supplied upon a request to p.vaira@vairariley.com.

Local Civil Rule 7.1(g) permits a party to move for reconsideration of any judicial ruling within 14 days after entry of judgment, order, or decree. This includes criminal cases. The grounds for a motion for reconsideration are found in case law.

The 3rd U.S. Circuit Court of Appeals has said, “The purpose of a motion for reconsideration is to correct errors of law or fact or to present newly discovered evidence.” Under this test the three grounds for relief are (1) an intervening change in the controlling law; (2) availability of new evidence that was not available when the court made its decision; (3) the need to correct a clear error of law of fact or to prevent a manifest of injustice.

Motions for reconsideration are granted sparingly because of the court’s strong interest in the finality of judgments. A dissatisfaction with the court’s decision is not enough.

Magistrate Judge Jacob P. Hart said, “A motion for reconsideration is not to be used as a means to reargue matters already disposed of or as an attempt to re-litigate a point of disagreement between the court and the litigant.”

Dennis Suplee, an experienced trial lawyer and author, advises, “File the motion only if the ruling will have a significant impact on the future course of the case, not just because you’re disappointed.”

A difference of opinion with the court’s ruling does not constitute a basis for reconsideration. The fact that another district court has reached a different decision on the law is not grounds for reconsideration.

Matters Overlooked

A matter overlooked by the court must be a fact, an argument, or case law that would alter the court’s original conclusion. The showing must be specific. General allegations will not suffice.

For example, motions were granted under the following circumstances: where the court overlooked the fact that controlling New York law would bar one claim; the court overlooked an affidavit that showed there was a triable issue as to the statute of limitations; the court’s decision addressed the statutory limitation period but not the contractual limitation period.

Where the court did consider the matter raised by the petitioner, the motion will readily be denied. For example, the petition for reconsideration was denied where it presented nothing more than a laundry list of issues that the court did consider.

Intervening Change of Law

A change of law is considered controlling in a district court only when the change comes from the U.S. Supreme Court or the court of appeals that controls that district.

Reconsideration was granted on the basis of a recent 3rd Circuit decision requiring a different conclusion.

Previously Unavailable Evidence

Courts will consider evidence that was unavailable to a party at the time of the decision as a valid basis for reconsideration. Courts have consistently rejected reconsideration based upon offering evidence that was available at the time of the decision but not presented.

For example, the motion was denied where there was no showing that the new evidence was unavailable at time of a summary judgment motion. Although deposition transcripts were not available when the motion was argued, the evidence offered in the depositions clearly was available long before depositions occurred. A motion for reconsideration was denied when the moving party offered no valid reason why the affidavits and documents offered could not have been obtained for original motion. Where evidence was unavailable through neglect or lack of effort by a party does not constitute previously unavailable evidence.

Error of Law or Fact, Manifest Injustice

Relief for an alleged error of law is commonly denied. The error of law must be clear, not simply a disagreement as to how applicable case law was applied.

Where a motion for reconsideration is predicated on a need to correct a manifest injustice, Magistrate Judge David R. Strawbridge has said, “the party must persuade the court that not only was the prior decision wrong, but it was clearly wrong and the decision would create manifest injustice.”

New Legal Arguments

A new legal argument or new legal theory put forth in the motion is usually not greeted with much pleasure. An argument not articulated in the prior motion is generally rejected.

Relaxation of the Rule

As with any other local rule, under appropriate circumstances, courts have granted reconsideration despite the admonitions cited above. These cases turn on peculiar factual situations and may be precedent only in similar situations. Please e-mail the author for complete citations.

Clarification of Prior Decision

A request for clarification rather than a major modification of the decision may cause the court to grant reconsideration.

Time Limitations

Rule 7.1(g) contains a time limitation of 14 days. The limit applies to all reconsideration motions, regardless of the underlying order. Pursuant to the Amending Order of Dec. 1, 2009, the 14 day limit includes Saturdays, Sundays, and legal holidays. The time begins to run from the filing of the order, not from its mailing or receipt. Courts will deny a motion for reconsideration if it is untimely filed on that basis alone.

Judges James McGirr Kelly, Louis H. Pollak, James Knoll Gardner, Berle M. Schiller, Mary A. McLaughlin and Eduardo C. Robreno have rejected motions on this basis. The availability of reconsideration has been used as the basis to reject arguments as untimely.

Judge J. William Ditter Jr. rejected an argument on a discovery issue previously ruled upon by the court. Ditter said, “If plaintiffs were dissatisfied with that order, they certainly could have moved for reconsideration as provided for by [Rule 7.1(g)].”

Procedure

A formal motion and supporting brief and order required by 7.1(a)-(d) are the required procedure for filing a motion for reconsideration. According to Judge Lowell A. Reed Jr., “The failure to follow the briefing, form of order and other technicalities of Rule 7.1 is almost as common a failure as missing the 14 day time requirement.”

No matter how the motion is styled, it is the substance of the relief sought, and not the manner the motion is drafted that controls.

Sanctions

A meritless motion for reconsideration has been the subject of sanctions pursuant to Rule 11, Federal Rules of Civil Procedure.

Judge Lowell A. Reed Jr. offered this advice to counsel: “If you are deciding whether to recommend to a client whether a motion for reconsideration should be filed, using computer jargon, the general default position should be ‘no.’ The chances of winning are generally poor unless you can show the applicable law has changed or the judge overlooked binding precedent.”

Suplee offered this very practical advice: “The first sentence of any submission to the court always matters. It matters even more when you have already lost. Put the gravamen of the motion in the first sentence in a way to grab the court’s attention.”

Motions for reconsideration should be used sparingly. This is a rule that should be used wisely. The teaching of Aesop’s fable of the shepherd boy who cried wolf is an appropriate consideration in deciding whether to file a motion for reconsideration. •

Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of “Eastern District Federal Practice Rules, Annotated” (Gann Law Books). He can be contacted by e-mail at p.vaira@vairariley.com. Vaira has a blog devoted entirely to Eastern District Practice at http://petervaira.wordpress.com.