R>:
Defendants.
:
GREEN, S.J.
MEMORANDUM-ORDER
I.
FACTS & PROCEDURAL HISTORY
The underlying facts of the instant matter are set forth in detail in The Fair
Housing Council of Suburban Philadelphia (FHC) v. Mercury, Peerless Publications,
Inc., No. 96-1382,1998 WL 512937 (E.D.Pa. Aug. 18,1998). For the purpose of
disposing of this motion, this Court sets forth the following relevant facts.
Defendants filed a motion for summary judgment in January 1997. Because two
related cases were pending in the Third Circuit Court of Appeals, this Court placed the
above-captioned case in civil suspense. On March 31, 1998, the Third Circuit issued 1
The two cases, involving the same plaintiff as the instant case, are FHC v. Montgomery
Newspapers, 141 F.3d 71 (3d Cir. 1998) and FHC v. Main Line Times, 141 F.3d 439 (3d Cir. 1998).
2
Rule 7.1(g) provides:
Motions for reconsideration or reargument shall be served and filed within ten (10) days
after the entry of the judgment, order, or decree concerned. Local R.Civ. P. 7.1(g).
2
opinions in the two related cases.
1
On June 10, 1998, Plaintiff FHC moved for leave to
file a supplemental response and evidence to Defendants motion for summary
judgment in light of new Third Circuit authority on the issue of standing. Oral argument
on the motion to file a supplemental response and the motion for summary judgment
took place on June 16, 1998. On August 18, 1998, after careful consideration of the
issues presented by both parties, this Court granted Plaintiffs motion for leave to file a
supplemental response to Defendants motion for summary judgment and denied
Defendants motion for summary judgment.
Presently before the Court is Defendants timely motion for reconsideration of
this Courts order denying summary judgment against Plaintiff, and Plaintiffs response
thereto. For the following reasons, Defendants motion will be denied.
II.
STANDARD OF MOTION FOR RECONSIDERATION
Local Rule of Civil Procedure 7.1(g) establishes procedural guidelines for filing a
motion for reconsideration.
2
"The purpose of a motion for reconsideration is 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
(1986). Generally, courts will reconsider an issue only "when there has been an
intervening change in the controlling law, when new evidence has become available, or
when there is a need to correct a clear error or prevent manifest injustice." NL 3
Throughout this memorandum the phrases collateral estoppel and issue preclusion
are used interchangeably to describe the rule providing preclusive effect to a fact, question, or
right determined in a prior case.
3
Industries, Inc. v. Commercial Union Ins. Co., 65 F.3d 314, 324 n. 8 (3d Cir. 1995).
III.
DISCUSSION
In support of their motion for reconsideration, Defendants argue that the district
courts in FHC v. Montgomery Newspapers and FHC v. Main Line Times, supra,
established, and the Third Circuit affirmed, that the Fair Housing Council of Suburban
Philadelphia regularly conducts the investigative activities that it claims as diversions.
(Mem. in Supp. of Defs. Mot. for Recons. at 2, ¶ 2.) Therefore, Defendants claim that
this Court erroneously found that a genuine issue of material fact exists as to whether
FHC sustained injury resulting from alleged discriminatory advertisements published in
their newspapers because the doctrine of issue preclusion bars relitigation of that issue.
(Mem. in Supp. of Defs. Mot. for Recons. at 2, ¶ 3.)
Traditionally, courts have required the presence of four factors before issue
preclusion, [also known as collateral estoppel],
3
may be applied: (1) the previous
determination was necessary to the decision; (2) the identical issue was previously
adjudicated; (3) the issue was actually decided in a decision that was final, valid, and on
the merits; and (4) the party being precluded from relitigating the issue was adequately
represented in the previous action. Hawksbill Sea Turtle v. Fed. Em. Management
Agency, 126 F.3d 461, 475 ( 3d Cir. 1997). When any one of these factors goes
unsatisfied, the application of collateral estoppel is inappropriate. Id. Moreover, [e]ven
if all four requirements of collateral estoppel are met, changes in controlling facts 4
essential to a judgment will render collateral estoppel inapplicable in a subsequent
action raising the same issues. Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.
1995)(quoting Montana v. U.S., 440 U.S. 147, 157, 99 S.Ct. 970, 976 (1979)).
Accordingly, changes in controlling facts essential to the judgments in FHC v.
Montgomery Newspapers, 141 F.3d 71 (3d Cir. 1998) and FHC v. Main Line Times,
141 F.3d 439 (3d Cir. 1998) render collateral estoppel inapplicable in the instant matter.
As this Court stated in its memorandum-order dated August 18, 1998, at
minimum, a plaintiff seeking to establish standing to sue under the Fair Housing Act
must allege that he has suffered some distinct and palpable injury resulting from the
defendants actions. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S. Ct.
1114, 1121 (1982). Applying the standard articulated in Havens, the Third Circuit
recently held that a distinct and palpable injury, for Article III standing purposes, exists
when there is a causal connection between the alleged injury and the particular illegal
conduct. See FHC v. Montgomery Newspapers, 141 F.3d 71 (3d Cir. 1998); and FHC
v. Main Line Times, 141 F.3d 439 (3d Cir. 1998).
Based on the facts presented in Montgomery Newspapers, the Court found that
FHCs investigation of newspapers was not motivated by the advertisements at issue in
the suit or by a complaint about the advertisements. Id. at 78. Instead, the Court
concluded that FHC conducted investigation of newspapers as a part of its normal
activities. Id. Without reiterating its analysis in Montgomery Newspapers, the Third
Circuit arrived at the same conclusion in FHC v. Main Line Times, 141 F.3d 439, 442
(3d Cir. 1998). Defendants now mistakenly conclude that the Third Circuits findings of 5
fact in Montgomery Newspapers and Main Line Times have a preclusive effect on this
Courts determination that FHCs investigation of newspapers in response to
Defendants publication of allegedly discriminatory advertisements established a
genuine issue of material fact.
Clearly, the facts presented before this Court markedly differ from those upon
which the Third Circuit based its opinions in Montgomery Newspapers and Main Line
Times. In Montgomery Newspapers the Third Circuit concluded that [t]he record
before us does not establish that the FHC altered its operations in any way as a result
of the allegedly discriminatory advertisements or diverted any of its resources to a bona
fide investigation. FHC v. Montgomery Newspapers, 141 F.3d at 78(emphasis added).
Thus, the Montgomery Newspapers opinion was predicated on the factual
determination that FHC did not prove that their investigation of newspapers was
causally connected to the defendants allegedly discriminatory ads. Similarly, in Main
Line Times, the Court found that FHCs proof was virtually identical to that offered and
found lacking in Montgomery Newspapers. Thus, the court concluded that no genuine
issue of material fact existed on the issue of standing.
Unlike Montgomery Newspapers and Main Line Times, the record in the instant
matter includes the Supplemental Affidavit of James Berry, Executive Director of FHC.
Mr. Berrys affidavit contains specific evidence supporting the FHCs contention that it
altered its operations in response to the allegedly discriminatory advertisements
published by Defendants. See FHC v. Mercury, Peerless Publications, Inc., No. 96-
1382,1998 WL 512937 (E.D.Pa. Aug. 18,1998). Moreover, Mr. Berrys supplemental
affidavit chronicles FHCs efforts to counteract the alleged harm caused by publication 6
of the advertisements at issue. Thus, the affidavit clearly articulates that FHC diverted
from normal activities and read each papers classified advertising section in response
to discovery of these allegedly discriminatory advertisements. (Supplemental Aff. of
James Berry at 6, ¶ 4).
In both Main Line Times and Montgomery Newspapers the facts upon which the
Court based its opinions did not establish that FHCs investigation of newspapers was
motivated by the alleged discriminatory advertisements appearing in Defendants
newspapers. Consequently, the supplemental affidavit, submitted by FHC in the
present case, provided this Court with a markedly different set of facts. As stated
above, changed facts render collateral estoppel inapplicable in a subsequent action
raising the same issues. See Hawksbill at 477. Therefore, the doctrine of issue
preclusion does not bar this Courts determination that sufficient facts were presented
on summary judgment to create a genuine issue as to whether the injury asserted by
FHC directly relates to the allegedly discriminatory advertisements published by
Defendants.
Moreover, this Court denied Defendants summary judgment motion based on
two injuries to the FHC: (1) non-routine investigation of newspapers resulting in the
diversion of resources; and (2) diversion of resources to educational projects to
counteract the allegedly discriminatory advertisements published by Defendants. Since
FHCs educational efforts alone create a genuine issue of material fact as to whether it
suffered a distinct and palpable harm resulting from Defendants publication of the
advertisements at issue, Defendants motion for reconsideration does not support a
reversal of the August 18, 1998 summary judgment ruling. 7
V. CONCLUSION