United States District Court, D. Maryland
JEFFREY J. SILVER Plaintiff
WELLS FARGO BANK, N.A., Defendants
MEMORANDUM AND ORDER RE: RECONSIDERATION
J. Garbis, United States District Judge
Court has before it Wells Fargo Bank, N.A.'s Motion for
Reconsideration With Respect to Count III [ECF No. 56], PNC
Bank, National Association's Motion for Reconsideration
With Respect to Count III [ECF No. 57], and the materials
submitted relating thereto. The Court finds a hearing
case arises from a check fraud scheme perpetrated by
Plaintiff Jeffrey J. Silver's employee. In the course of
the scheme, the employee stole, forged, and negotiated checks
drawn on Silver's checking account at PNC Bank, National
Association (“PNC”) and deposited the proceeds
into her own account at Wells Fargo Bank, National
Association (“Wells Fargo”), where Silver also
maintained accounts. The check fraud scheme went undetected for
many years, and Silver now attempts to hold PNC and Wells
Fargo (collectively, “Defendants”) responsible
for his losses.
Amended Complaint [ECF No. 35], Silver asserted Maryland
Uniform Commercial Code and common law claims against
Defendants in ten counts. On June 30, 2017, the Court granted
in part and denied in part Defendants' Motions to Dismiss
the Amended Complaint [ECF Nos. 40 & 43] pursuant to
12(b)(6) of the Federal Rules of Civil Procedure.
See Mem. & Order Re: Amended Compl. [ECF No.
The Court dismissed Silver's claims in Count II (UCC
§ 3-417 & § 4-208), Counts IV and V (common law
negligence), Count VI (UCC § 4-401), Count VII
(negligent hiring and supervision), Count VIII (constructive
fraud), Count IX (civil conspiracy), and Count X (UCC §
3-420). The Court allowed Count I (UCC § 3-404 &
§ 3-405 - lack of ordinary care) and Count III (common
law breach of contract) to remain pending.
instant Motions, Defendants request the Court to reconsider
its ruling concerning Count III.
Wells Fargo did not specify upon what procedural grounds it
was making its Motion for Reconsideration, but Defendant PNC
labeled its Motion as one pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure and Rule 105.10 of the Rules
of the United States District Court for the District of
Maryland (“Local Rules”).
59(e) provides that “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry
of the judgment.” The Court's Order granting in
part and denying in part Defendants' Motions to Dismiss
the Amended Complaint was not a “judgment”
because it was not “a decree and any order from which
an appeal lies.” Fed.R.Civ.P. 54(a). The Order
adjudicated fewer than all of the claims presented in the
Amended Complaint, so it was not final. Therefore, Rule 59(e)
does not provide an appropriate basis for a motion to
reconsider. See Fayetteville Inv'rs v. Commercial
Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991)
(“Fayetteville's motion for reconsideration could
not be treated under Rules 60 or 59, as these rules apply
only to final judgments . . . .”).
the Court shall treat the instant motions as motions to
revise the Court's Order pursuant to Rule 54(b). See
id. at 1465 (doing the same); Lopez v. United
States, No. PWG-14-2156, 2016 WL 915621, at *1 (D. Md.
Mar. 10, 2016)(same).
54(b) of the Federal Rules of Civil Procedure provides, in
[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54.
district court retains the power to reconsider and modify its
interlocutory judgments, . . . at any time prior to final
judgment when such is warranted.” Am. Canoe
Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15
(4th Cir. 2003). “The power to reconsider an order is
‘committed to the discretion of the district
court.' In exercising this discretion, courts must be
sensitive to ‘concerns of finality and judicial
economy.' However, the ‘ultimate responsibility of
the federal courts, at all levels, is to reach the correct
judgment under law.'” Asher & Simons, P.A.
v. j2 Glob. Canada, Inc., 977 F.Supp.2d 544, 546-47 (D.
Md. 2013)(internal citations omitted) (quoting Am. Canoe
Ass'n, 326 F.3d at 515).
Fourth Circuit has not stated a specific standard to guide
reconsideration of an interlocutory order, but the standards
applicable to Rule 59(e) and Rule 60 can provide guidance
even if not binding. See Lopez v. United States, No.
PWG-14-2156, 2016 WL 915621, at *2 (D. Md. Mar. 10,
2016)(citing Fayetteville Investors, 936 F.2d at
1472 and Am. Canoe Ass'n, 326 F.3d at 514);
see also Cezair v. JPMorgan Chase Bank, N.A., No.
CIV.A. DKC 13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30,
2014)(applying Rule 59(e) standard).
considers a motion to alter or amend when: “(1) there
has been an intervening change in controlling law; (2) there
is additional evidence that was not previously available; or
(3) the prior decision was based on clear error or would work
manifest injustice.” Cezair, 2014 WL 4955535,
at *1. Although not expressly articulated as such, the
grounds of Defendants' Motions are that the Court made an
error with respect to Count III.
Local Rules for the District of Maryland state: “Except
as otherwise provided in Fed.R.Civ.P. 50, 52, 59, or 60, any
motion to reconsider any order issued by the Court shall be
filed with the Clerk not later than fourteen (14) days after
entry of the order.” D. Md. Ct. Local R. 105.10. Wells
Fargo's and PNC's Motions for ...