Free Memorandum and Order - District Court of Delaware - Delaware

n Case 1:06-cv-00228-JJF Document 41 Filed 10/20/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HERMAN KELLY, :
Plaintiff, ;
v. S Civil Action No. 06-228-JJF
MBNA AMERICA BANK, E
Defendant. Z
M MDRANDUM ORDER
I. . BACKGROUND
Plaintiff, who appears pro se and was granted in fgrma
pauperis status, filed suit against Defendants MBNA America Bank,
(“MBNA”), the National Arbitration Forum (“NAF”), and the law
firm of Wolpoff & Abramson, L.L.P. (“Wolpoff & Abramson”)
alleging discrimination, illegal high compound interest prime
rate, harassment, breach of contract agreement, double jeopardy,
interference, fraud, sanctions/injunction, false prosecution,
false advertising, deceit accounting practice, conspiracy,
embezzlement, misrepresentation, negligence, settlement
compromise, witness tampering, and extortion. (D.I. 2.) He also
alleged denial of his constitutional rights to access to the
courts, due process, equal protection, a jury trial, enjoyment of
life, appointed counsel, and discovery. Id.
Because Plaintiff was granted in fggma pauperis status, the
Court conducted an initial screening pursuant to 28 U.S.C. § 1915
and on July 18, 2003, dismissed the claims against Wolpoff &

Case 1:06-cv-00228-JJF Document 41 Filed 10/20/2006 Page 2 of 4
Abramson for failure to state a claim upon which relief may be
granted. (D.I. 23.) In the same order, the Court granted a
Motion to Dismiss filed by NAF on the basis of arbitral immunity.
On August 31, 2006, Plaintiff filed a “Motion to Vacate Court’s
Judgment/Order dated July 18, 2006,” which the Court construes as
a Motion for Reconsideration. (D.I. 31.) Plaintiff also filed a
Motion to Compel Discovery from Defendants NAF and Wolpoff &
Abramson. (D.I. 34.) For the foregoing reasons, the Court will
deny both motions.
II. STANDARD OF REVIEW
The standard for obtaining relief under Rule 59(e) is
difficult for Plaintiff to meet. 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). A motion for reconsideration
may be granted if the moving party shows: (1) an intervening
change in the controlling law; (2) the availability of new
evidence that was not available when the court issued its order;
or (3) the need to correct a clear error of law or fact or to
prevent manifest injustice. Max's Seafood Café v. Quinteggg, 176
F.3d 669, 677 (3d Cir. 1999).
A motion for reconsideration is not properly grounded on a
request that a court rethink a decision already made. §ee
Glendon Energy Co. v. Borough of Glendon, 836 F.8upp. 1109, 1122
-2-

Case 1:06-cv-00228-JJF Document 41 Filed 10/20/2006 Page 3 0f 4
(E. D. Pa. 1993). Motions for reargument or reconsideration may
not be used “as a means to argue new facts or issues that
inexcusably were not presented to the court in the matter
previously decided.” Brambles USA, Inc. v. Blocker, 735 F.Supp.
1239, 1240 (D. Del. 1990). Reargument, however, may be
appropriate where “the Court has patently misunderstood a party,
or has made a decision outside the adversarial issues presented
to the Court by the parties, or has made an error not of
reasoning but of apprehension.” Brambles USA, 735 F.Supp. at
1241 (D. Del. 1990) (citations omitted); §QQ Ql§Q D. Del. LR
7.1.5.
III. DISCUSSION
Plaintiff does not argue there was an intervening change in
the controlling law or the availability of new evidence that was
not available when the Order was entered dismissing the claims
against NAP and Wolpoff & Abramson. He appears to argue that the
Court overlooked facts and as a result reconsideration is
warranted.
The Court thoroughly reviewed the Complaint and the Court's
Order dated July 18, 2006. The law has not changed and there is
no new evidence. Plaintiff merely does not agree with the
Court's ruling. There is no need to correct a clear error of law
or fact or to prevent manifest injustice. Plaintiff has not
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Case 1:06-cv-00228-JJF Document 41 Filed 10/20/2006 Page 4 of 4
demonstrated any of the grounds necessary to warrant
reconsideration and, therefore, his motion will be denied.
IV. MOTION TO COMPEL I
Plaintiff moves the Court, pursuant to Fed. R. Civ. P. 37,
to compel NAF and Wolpoff & Abramson to provide discovery, (D.I.
34.) It does not appear that Plaintiff utilized the Federal
Rules of Civil Procedure to obtain discovery. Indeed, the motion
filed by Plaintiff does not comply with the requisites of Rule
37(a) inasmuch as it does not contain a certification that
Plaintiff in good faith conferred or attempted to confer with NAF
or Wolpoff & Abramson to secure the discovery without court
action. Therefore, the motion will be denied.
V. CONCLUSION
THEREFORE, at Wilmington this _§¥2 day of October, 2006, IT
IS ORDERED that:
I. The Motion to Vacate Court’s Judgment/Order dated July
IS, 2006, construed as a Motion for Reconsideration (D.I. Bl) is
DENIED.
2. The Motion to Compel discovery (D.I. 34) is DENIED.
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