Statement of Questions Involved

  1. Have the Plaintiffs stated a valid reason to grant a motion for reconsideration toprevent manifest injustice under Rule 59 (e), relating to Denial of Pilchesky’s standing as “Next Friend”?

Proposed answer: Affirmative

  1. Have the Plaintiffs stated a valid reason to grant a motion for reconsideration for error of law under Rule 59 (e), relating Denial of Pilchesky’s standing as “Next Friend”/Failure to give notice of evidentiary hearing to Pilchesky and Tarapchak?

Proposed answer: affirmative

  1. Have the Plaintiffs stated a valid reason to grant a motion for reconsideration toprevent manifest injustice under Rule 59 (e), relating to denial opportunity to amend?

Proposed answer: Affirmative

Law

In Lazaridis v. Wehmer, 591 F. 3d 666 - Court of Appeals, 3rd Circuit 2010, the Court wrote as follows:

The purpose of a motion for reconsideration is "to correct manifest errors of law or fact or to present newly discovered evidence." Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). A proper Rule 59(e) motion therefore must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice. N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995).

In Tischio v. Bontex, Inc., 16 F. Supp. 2d 511 - Dist. Court, D. New Jersey 1998, the Court wrote as follows:

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 America v. Bellsouth Advertising & Publishing,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, 106 S.Ct. 2895, 90 L.Ed.2d 982 (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; Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D.N.J.1992),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, 66 (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.

Amendment standards

In Shane v. Fauver, 213 F. 3d 113 - Court of Appeals, 3rd Circuit 2000, the Court stated,

Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend a pleading "once as a matter of course at any time before a responsive pleading is served." A motion to dismiss for failure to state a claim must be made "before pleading if a further pleading is permitted." Fed.R.Civ.P. 12(b). Thus, in the typical case in which a defendant asserts the defense of failure to state a claim by motion, the plaintiff may amend the complaint once "as a matter of course" without leave of court. See 2 James Wm. Moore et al., Moore's Federal Practice § 12.34[5], at 12-76 (3d ed.1999) (quoting Fed.R.Civ.P. 15(a)). After amending once or after an answer has been filed, the plaintiff may amend only with leave of court or the written consent of the opposing party, but "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Supreme Court has instructed that although "the grant or denial of an opportunity to amend is within the discretion of the District Court, . . . outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely an abuse of that discretion and inconsistent with the spirit of the Federal Rules." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

"Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997)("Burlington"); Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir.1993). "Futility" means that the complaint, as amended, would fail to state a claim upon which relief could be granted. Burlington,114 F.3d at 1434. In assessing "futility," the District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6). Id.; 3 Moore's Federal Practice, supra § 15.15[3], at 15-47 to -48 (3d ed.2000). Accordingly, if a claim is vulnerable to dismissal under Rule 12(b)(6), but the plaintiff moves to amend, leave to amend generally must be granted unless the amendment would not cure the deficiency.

The Federal Rules of Civil Procedure do not address the situation in which a deficiency in a complaint could be cured by amendment but leave to amend is not sought. Circuit case law, however, holds that leave to amend must be given in this situation as well. In Borelli v. City of Reading, 532 F.2d 950 (3d Cir.1976), this court stated that a district court should use the following procedure in dismissing a complaint for failure to state a claim:

[W]e suggest that district judges expressly state, where appropriate, that the plaintiff has leave to amend within a specified period of time, and that application for dismissal of the action may be made if a timely amendment is not forthcoming within that time. If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.

Borelli,532 F.2d at 951 n. 1. In Darr v. Wolfe, 767 F.2d 79 (3d Cir.1985), we stated:

[T]his court has consistently held that when an individual has filed a complaint under § 1983 which is dismissable [sic] for lack of factual specificity, he should be given a reasonable opportunity to cure the defect, if he can, by amendment of the complaint and that denial of an application for leave to amend under these circumstances is an abuse of discretion. Darr,767 F.2d at 81.

These cases were followed by District Council 47 v. Bradley, 795 F.2d 310 (3d Cir.1986),in which the court held that, if the complaint in that case was deficient, the District Court should have followed the procedure outlined in Borelli and granted leave to amend even though the plaintiff, which was represented by experienced counsel,had never sought leave to amend. District Council 47,795 F.2d at 316. The court observed that "we have never required plaintiffs to request leave to amend following a district court's dismissal of a complaint." Id.

Argument

“Next Friend” standing and surprise evidentiary hearing

The Presence of Prejudice

At the outset, as background, it is worth noting that Judge Kearney gave Pilchesky only seven (7) days to respond to the Rule that he issued upon him on January 14, 2016, to show cause why he should be permitted to represent incarcerated Tarapchak as her “Next Friend”. It is further worth noting that Judge Kearney denied Pilchesky’s Emergency Motion to inspect the prison’s Law Library and to interview the prison’s Law Librarian, notwithstanding the fact that a required element of the legal standard that Pilchesky had to meet to be granted “Next Friend” status was to show that the prison had a deficient and ineffective Law Library and an untrained and incompetent Law Librarian. Pilchesky wanted to take pictures of the Law Library because Tarapchak had reported to him it is a small room and there are no legal reference books. Pilchesky also wanted to inspect the prison’s computer and/or word processor, because Tarapchak had reported to him that there was no internet service and that the computer and/or word processor did not have a “save” feature to save work in progress, or to save legal research documents. Pilchesky also wanted to interview the Law Librarian. Since Pilchesky was unable to inspect the Law Library or interview the Law Librarian, he was unable to submit any proof of that aspect of the Law Library’s inadequacies to support his argument on the “Next Friend” issue as relates to lack of access to the courts.

In hindsight, the clearest sight, the record is clear and obvious that Judge Kearney had no intention of disposing of the issue of Pilchesky’s “Next Friend” status until after he held an evidentiary hearing on the matter on March 1, 2016, which intention he concealed from Pilchesky and Tarapchak. Judge Kearney could have included information in his February 5, 2016, order that scheduled a hearing on “all outstanding motions” that an evidentiary hearing was also going to be held on the issue of “Next Friend”, but he did not. Judge Kearney could have included a hearing date in the Rule to Show Cause, but he did not. Judge Kearney could have also given Pilchesky until February 14, 2016, or thirty (30) days, to file his Answer to the Rule regarding “Next Friend” status, which would have allowed Pilchesky the opportunity to propound discovery upon Administrators and doctors at the Lackawanna County Prison. Judge Kearney then could have given the Defendants fifteen (15) days to respond. Proper notice that an evidentiary hearing was also going to be held on March 1, 2016, would have triggered further due diligence action for Pilchesky to prepare accordingly. Furthermore, Judge Kearney only issued the Rule upon Pilchesky, and not Tarapchak. The record is absent any request by any party for an evidentiary hearing. With proper notice of an evidentiary hearing, Pilchesky could have, and would have, subpoenaed Warden McMillan, Dr. Malik, the prison doctor, and the prison’s Law Librarian to support Pilchesky’s assertions that Tarapchak did not have access to the court due to an inadequate Law Library and mental incompetence. Pilchesky asserts that this Court knew that he would be severely prejudiced absent proper notice of an evidentiary hearing, as it knew Pilchesky was prejudiced by being denied access to the Law Library and the Law Librarian. Pilchesky further asserts that the Court’s conduct was intentionally deceptive to the prejudice of the Plaintiffs and to the benefit of the Defendants. This Court’s own Finding of Fact at page (2) refers to the evidentiary hearing as relating to the rule to show cause.

Review of the Court’s The Findings of Fact and Conclusions of Law illustrates prejudice

The Findings of Fact and Conclusions of Law[1] (Finding) is a substantially comprehensive finding of facts through the Court’s eyes as the result of holding an evidentiary hearing that only the Court and the Defendants knew was going to take place on March 1, 2016, as well as responses to the Court’s Rule issued on January 14, 2016. The Finding is fifteen (15) pages long, composed of fifty-eight (58) paragraphs and seventy-one (71) footnotes and it is not signed. Worthy of note is that practically none of the footnotes make an accurate reference to the record, either in context or page number, or both. The Finding addresses only the issue of Pilchesky’s “Next Friend” status to represent Tarapchak as an incarcerated Plaintiff.

Cherry-picked v. Omitted Facts within the Finding and Conclusion

The Finding has methodically, almost pain-staking, “cherry-picked” through the transcript of the March 1, 2016, evidentiary hearing and Pilchesky’s Answer to the Rule to Show Cause to support its Conclusion of Law to deny “Next Friend” standing to Pilchesky, harvesting certain facts to the benefit of supporting the denial, but omitting many other facts that could support granting the standing. In that regard, Pilchesky and Tarapchak offer the following paragraph-by-paragraph critique of the Finding in dispute of its veracity in support of this instant motion:

  1. It is specifically denied that (N.T. March 1, 2016 at p. 16) states that Pilchesky claimed he and Tarapchak were romantic partners since February or March 2015. That statement is not made anywhere in the transcript.
  2. It is admitted the Pilchesky was Tarapchak’s Durable Power of Attorney and has owned 50% of her medical practice since 2013.
  3. It is admitted that Tarapchak has been incarcerated on a bail violation since October 23, 2014.
  4. It is admitted that Pilchesky became more involved in representing Tarapchak after her bail violation incident due to becoming uncomfortable with her representation.
  5. It is specifically denied that p.33 states that Pilchesky often sends case law and research to Tarapchak. He admitted at p. 35 that he sends her case law often, but only to help her understand it, without admitting that she understood any of it, but nonetheless, she’d still be incapable of preparing legal documents and giving a presentation in court in an adversarial setting. Furthermore, at p. 36 & 37, Pilchesky explained that if he wasn’t helping her, none of the legal papers would have been prepared and filed, and if he doesn’t continue to help her, she’ll be incapable of responding to litigation and she won’t do anything and it’ll be over, and, she admitted that it would have been impossible for her to do it herself.
  6. It is specifically denied that p.26 states that Tarapchak reads, writes and understands English, although it may be stated elsewhere. More specifically, wherever it may be stated, it does not state that she can read, write and understand law, the legal concepts of law, the legal standards of law, how to prepare legal documents, how to prepare briefs, how to read legal documents and briefs, how to interpret case law, common law and statutes and how to present arguments, take depositions and engage in pre-trial , trial and evidential hearing procedures.
  7. It is admitted that Tarapchak opened a medical office and operated it without Pilchesky. However, it is also well-established on the record that Tarapchak was convicted of mismanaging her medical office over a period of several years, to include the misadministration of, and failure, to prepare and file medical documents and records.
  8. It is specifically denied that Pilchesky admitted at p.29 that Tarapchak is someone who can process complicated information. To the Contrary, at p.31, 32 & 33 he explained that she has not made good decisions in her personal and financial life and that she managed her medical office poorly, which is how she got herself in the trouble she’s in.
  9. It is admitted that Tarapchak could describe what “decompensated” means, but she was trained as a doctor to describe it, and she suffered from being “decompensated” due to her experience of being arrested, incarcerated and convicted through a rigged trial. She also described psychosis, which she also suffers from. She testified at p.49 that she sees things, hears things and that she’s become more paranoid. She also testified at p.50 that her psychotropic medication dosages were increased by the prison doctor and that she was placed in a camera watch cell twice at the instruction of a prison doctor. She testified at p.51 that she’ll be on the medications for a long time. At p.52 she testified that she would not have been able to prepare the Complaint because the ability to process information is affected by the medications, and she has memory issues. She also testified that if Pilchesky didn’t help her to prepare and file the documents it would be impossible for her to do it.
  10. It is patently denied that Pilchesky said Tarapchak provided him with a very good diagnosis of how own heart condition at p.42. To the contrary, at p.44, after Pilchesky explained to the Court that Tarapchak had forced him to have a catherization done, it was the Court, and not Pilchesky, who said it “sounds like a good diagnosis.”
  11. It is specifically denied that Pilchesky stated at p. 42 that Tarapchak was “okay” while on home detention. To the contrary, at p.42 he explained she suffered from hallucinations and believed people were chasing her. At p.43 he explained she should have been on medication because she had boarded up his home believing that people were chasing her.
  12. It is admitted that Tarapchak testified she was hearing and seeing things, among other adverse psychological reactions, but she testified that she was taking five psychotropic medications, i.e., plural, and not one medication, as erroneously indicated in this paragraph.
  13. It is admitted that Tarapchak testified that she suffered from short-term memory loss.
  14. It is admitted that Tarapchak testified that she was taking medications before Pilchesky began action as her “next friend”.
  15. It is denied that Tarapchak testified at p.55-56 that her present medications resolve her psychiatric symptoms (plural). More specifically, she testified that it resolved only one.
  16. It is admitted that Tarapchak testified that she sees a psychiatrist over two months and stayed with medications with an increase in dosage of antipsychotics.
  17. It is admitted that Tarapchak testified that she was twice placed in isolation by prison doctors for suicide concerns. Her testimony was under oath. In addition, she submitted an affidavit to the Court on January 21, 2016, which only lacked notarization because the prison had no public notary on duty to notarize it. Furthermore, if Pilchesky or Tarapchak were given more time to propound discovery, they would have had medical documents to support her testimony and statements.