JOHNSON v. STEMPLER, et al, No. 2:2000cv00711 - Document 199 (E.D. Pa. 2010)

Court Description: ORDER AND OPINION, PLFF'S MOTION FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. PR. 60(b)(2) IS HEREBY DENIED. SIGNED BY MAGISTRATE JUDGE JACOB P. HART ON 7/19/10. 7/19/10 ENTERED AND COPIES E-MAILED.(fb)

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JOHNSON v. STEMPLER, et al Doc. 199 IN THE UNTTED STATES DISTRICT COlJRT FOR THE EASTERN DIS rRICT OF PENNSYLVANlA FILED DARREN JOHNSON CIVIL ACTION JUL 19:2010 v. MlCHAEl.E.KlJNZ.CIeIk CORRECTIONAL PHYSIClAN,!l/ _"Jlep.CIeIk SERVICES NO. 00-711 QEJ2ER AND OPINION JACOB P. HART UNITED STATES MAGISTRA.TE JliDGE DATE: f 1 1"1/10 On March 31, 2010. the United States Court of Appeals for the Third Circuit granted in part the appeal of plaintiff Darren Johnson. remanding this case to the District Court to consider Johnl'on's previously denied Illotio!) to reinstate Prison Health Services ("PHS'I) as a defendant in this malter. The orders appealed from weft; issued by the Hooorable Druce W, Kauffman, to whom the ease wa'! assigned at that time. Later, the caSe \\'as referred to the undersigned, pursuant to 28 U.S.G. § 636(c) and Fed. R. Civ. Pro 73. By the time the case wns remanded by the Court of Appeals, Judge Ka.uffman was no longer sitting on this court. Therefure, I have considered the ｲｾｭ｡ｮ､･＠ issue. For the, reasons L F!;!stual and ï½ ï½²ï½¯ï½£ï½¾ï½°ï½µï½¡ï½¬ï¼  A. Proceedincs ï½ ï½¥ï½¦ï½¯ï½²ï½¾ï¼®ï¼©ï½µï½¤ï½§ï¼  ｳｾｴ＠ forth below, 1 will not reinstate PHS as a defendant ï½ ï½¾ï½£ï½§ï½²ï½¯ï½µï½®ï½¤ï¼  Kauffman In this action, brought under 42 U.S. C. § 1983, Johnson alleges that his rights under the Eight and Fourteenth Amendments to the United States Constitution were violated with respect to ｴｨｾ＠ treatment of a ｫｮｾ･＠ injury he sustaIned in 1999 while an inmate at Graterford Prison. He argues that proper treatment was wrongfully delayed, resulting in permanent injury which would Dockets.Justia.com not have occurred if he had received timely treatmcnt. Although Johnson hegan this action in February, 2000, by filing it Motion to Proceed in Forma Pauperis, rus complaint Wi;t:'5 filed on December 1.1, 2noO. Docket at Documents J and 15. Among other defendants, Joiulson named Correctional Physician Services. Inc., ("CPS"), \.,.'hich WhS, at the time of his injury, tbe private entity employed by the Commonwealth of Pennsylvania Department of Corrections to provide medical carc to it") irunates at facilities including Graterford. He also sued PHS ilS a successor in interest to CPS, which stopped providing medical care at Graterford in March, 2000. On JanUAry 19, 2005, Judge KaulIrmm granted in part and denied jn part motions for summary judgment brougbt by all defendants. 1n relevant part. he dismissed PHS as a defendant" writing: Plaintiff raises 3[n] ... Eigbtb Amendment (,.:lairn against CPS and PHS. As a preliminary matter. PHS claims that it had no contractual ohligation to provide medical services to the inmates at SCI-Graterford until May, 2000. [Citations omiUed]. Plaintiff bas offered no evidence that PHS was involved wilh medica1 care at SCI-Graterford at that time, meaning that it can bear no Jiability for the events giving rise to this suit. Consequently, summary "judgment must be granted in favor of PHS, Memorandu:n And Order of January 19,2005, docketed as Document 123. Nevertheless t a year later, Judge Kauffman permitted Johnson to obtain discovery from PHS. Order of January 31, 2006, docketed ttl:! Document 133. On March 1, 2006, JohnS()n filed a Motion for Relief from Judgment under Fed. R. Civ. PL 60(0)(2), seeking the reversal of Judge Kauffman's order granting ｾｵｭ｡ｲｹ judgment to PHS. Motion, Docketed as Document 135. In it, he stated that he bad finally received in discovery Ii- copy of the Asset Purchase Agreement (" Agreement") between CPS and PHS, dared March 29. 2000, and discovered that, under tbe Agreement, PHS a.':;sumed liability for eases such as his. Id. 2 In an order dated October 5, 2006, however, Judge Kauffman denied Johnson's motion as untimely, writing that Rule 60(b} required it to have been filed within one year of me entry of the judgment at issue, Order, docketed as Document 142. Judge Kauffman also addressed the meriLs oflhe motion in a footIlOl(:: Plaintiff argues that under [the Asset Purehase Agreement], PIIS assumed the ｬｩ｡ｨｴ･ｾ＠ of CPS with respect to the provision of health care services to inmates. Motion at 1. However, the Agreement actually states that PHS assumes "aU liabilities arisjng after the Closing DatI;' with respect to the provision of sen'ices to inmates covered by the Pa. Contract or the :..IY Contract." Agreement at p. 7 (emphasis added). The events On whieh Plaintiffba<>es his claims oecurred in 1999, prior to the Agreement's March 29, 2000, closing date. Accordingly, Plaintiff has presented no new evidence demonstrating extraordinary circumstances which would J'l."quire this Court (0 vacate its prior judgment. By April 12,2007, CPS was the only defendant remaining in thc casc. Judge Kauffman scheduled tria! for September 17, 2007. Order, doeketed as Document 144. On September 6, 2007 ｾ＠ however, counsel for CPS moved to withdraw on the basis that his client no longer existed as a functioning business, and did not have ｾｵＱｮ｣ｩ･ｴ＠ funds to pay him. h1otion to Withdraw, docketed as Document 155, Judge Kauffman granted the motion, and gave CPS 30 days to find substitute counsel, Order, docketed as Document 160, No new counsel appeared, and on March 31,2008, Judge Kaullinan granted Johnson's motion for a defau1rjudgment against CPS. Order, docketed as Document 165. Judge Kauffman then referred the case to me for a tria] On the issue of damages. Order, docketed as Document 167, J Trial and ï½ ï½°ï½¾ï½£ï½¡ï½¬ï¼  ll. On April 30, 2Q08, I entered an order scheduling a bench trial for May 28, 2008. Order, docketed as Documem: 170. Copies of this order were served upon CPS principles Kenan Umar and Emrc lIrnar, Sz.. Trial Tnm::;cripl at 3. On !viay 28, 2008, however, only Johnson appeared for trial. I therefore proeeeded to be-ar damages testimony from Johnson, On July 11,2008, J issued a final judgment in favor ofJohnson in the amount of$65,UotlOO, supported by written findings of fact and conclusions of law, Docketed as Documents 180 and 181. ï½ ï½¯ï½¨ï½®ï½¾ï½ ï¼  appealed to the CAJurt of Appeals for the Third Circuk Among other ha..;;es fur appeal, he argued that Judge Kauffman had erred in granting summary judgment in fayor of PHS, and in refusing to consider Johnson's motion lo ｲ･｣ｯｮｾｩ､＠ that ruling. On April 22, 2010, the Court of Appeals for the Third Circuit issued its decision. Johl)Son v. Stempler, No 08-3434 (April 22, 2010), The Court of Appeals agreed with Johnson that Judge Kauffman should not have dismissed lohruon'!) :Y1arch 1,2006, motion for reconsideration as untimely. It wrole: HRuie 60(b) applies only to final judgments and the ｯｮ･ｾ＠ year time limitation imposed by the Rule does not apply to situatIons where the order in question was not properly appealable in the ftrst place."!d. at 10. It added that Judge Kauffman's order dismissing PIIS was not a tinal order ｬｸＮｾｵ＠ il did nol dispose of all jssues as to all parties. Id. For this reason, it was not propedy appcaJable under Rule 60. The Third Circuit remanded the case for consideration of the merits of Johnson '1\ argument regarding PHS's liability under the Agreement Such consideration is now appropriate since a final judgment has been entered. 4 At t:Je rt;quest of the parties, I pemlitted PHS to file a supplemt:ntal response to Johnson's 'March 1,2006, motion for reeonsiderati01L Order of April 26, 2010, docketed as Document 191. ｾｬ｢ｪｳ＠ was fb:xl on May 11, 20 lO. Johnson filed a ｾｰｬｹ＠ memorandum on June 4, 2010. Dockett:d as Document'} 192 and 196. On June 10,2010, I scheduled oral argument on thc mOlion. Order, docketed as Document 197. This argument was heJd on June 29, 2010. Minute Ordered, docketed as Document II. ｾ｡ｬ ＱＹｾＮ＠ Stand,,&! As explained by the Court of Appeals tor the Third Circuit, Johnson's motion challenging the dismissnl of PHS as a defendant in this lawsuit is now properly considered under Rule 60(b), since a flnal judgment has been entered in this case. Under tIlis rule, a court may grant relief from judgmem based on newly discovered evidence, !'luch as the Asset Purchase Agreement. if the evidencc (1) is material and not merely cumulative; (2) could not have been discovt:red prior to trial (or, in this case, prior to Judge Kauilinan's summary judgment order) through the exercise of reasonable diligence; and (3) wouJd probably have changed the outcome of the tria!. BohY. v, BCIolI, 950 J.',2d 919, 930 (3d CiT, 1991); and see Coyler v,,,C,m,o)idaled Rail Corp., 114 F, Appx. 473,480 (3d Cir, 2004), III. Discussion A. The Asset Purchase ï½ ï½§ï½²ï½¾ï½¥ï½­ï½®ï½´ï¼  ]bjs motion presents a question of contract interpretation. Johnson argues that, in the Agreement, PHS n&'mmed liahility for actions such as his own. He points to ｾ＠ 3.1 of the Agreement, which reads: Assm:u.ed Liahi lities. As partial consideration for the purchase of the Assets, Purcha<;er hereby assumes the following liabilities (tile '"As.ommed T,iahilities") of Seller (i) all Habilities of Seller with respect to the Assun1ed Contracts to the 5 ･ｸｫｾｮｴ＠ arising after the Closing Dale tlater defined as a date between March 1 and April 30, 2000]; (ii) all aC(:rucd currcntliabil1tics of Selter as of the Closing Dale with respect to the Business with respect to payroll and accrued vacation pay to the extent attributable to any payroll period ending after the Closing Date t1)at relates to the operation of the ï½ ï½µï½¾ï½©ï½®ï½¥ï½³ï¼  prior to and after the Closing Dllte or solely to the operation of the Business flfter the Closing ï½ ï½¬ï½´ï½¥ï½¾ï¼  (iii) all liabilities: arising afte-r the Closing Dnte with respect to the provision of services to inmates covered by the Pa Contract or the NY ï½ ï½¯ï½®ï½´ï½²ï½¡ï½£ï½¾ï¼  and (iv) any liability of SeHer lor the NY Rebate. to the extent disclosed to Purchaser. Asset Purchase Agreement, attached to Document 134 as Exhibil A. l Emphasis supplied]. PHS maintains that th1s paragraph cannot apply here, since the medical treatment given to Johnson took place in 1999; well beforc the Closing Date. Cleariy, this was also Judge ï½ ï½¡ï½µï½¦ï½­ï½¬ï½®ï¼§ï½¾ï¼  view. as expressed in the footnote to his October 5, 2006, order. Johnson, however, mgues that no actual "liability" arose with respet:t to Johnson '5 medical treatment in 1999, because no one at that time was adjudged liable. He offers the Black's Law Dictionary delinition of"liabiHty" as "the quality or state of heing legally ohligated or accountable." Johnson also cites enited States v. Hughes Properties. Inc .. 476 {;,S, 593, 600 (] 986), where the United States Supreme court said that a liability "docs not accl1lc as long fiS it remains contingent" On the basis of this authority, Johnson's counsel asserts that the relevant liability arose only when judgment was entered tn thJ5 casc. Obviously, this is after the Closing Date. In addilion to arguing that ｾ＠ 3.1, does not apply, however, PHS also maintains that ｾ＠ 3,] of the Agreement explicitly excludes liabilily: Excluded Liabilities. Except for (he Assumed Liabilities, in no event shaH Purchaser assume, agree to pay, satisfy or discharge or otherwi.se have any responsibility for any liabilities or obligations of Seller, and, without limiting the generality or the i<.Jregoing. Assumed Liabilities shall not include any liahilities or obligations In respect of the following ". (ii) any liahility or ohligatiori of Seller 6 whatsoevcr which accrued at any time on or prior to the Closing Date, wbether or not such liability or obJigation arises prior or subsequent to the Closing Date, including, without limitation, any liahilities with respect to payroll ... and litigation or and accrued vacation pay ... insurance related ï½¬ï½©ï½¡ï½¢ï½¨ï½ ï½¥ï½¾ï¼  claims (including, without limitation, contract claims, ､ｩｾ｣ｲｭｮ｡ｴｯ＠ claims, EEOC claims ami Medical :vfalpractke Claims n" ¢ Again, as to 'if 3,3, the parties disagree on the meaning of the language used. Johnson again argues that, in a legal seme. no "liability or obligation" had "accrued" with respect to bis treatment ｡ｾ＠ of lvtarch 29, 2000, the dale of the Agreement Johnson also maintains that the entire paragraph is modified by its first words; '<Except for the Assumed ï½ ï½©ï½¡ï½¢ï½¬ï½¥ï½¾ï¼¢ï¼¬ï¼  which, he In Pennsylvania, thc paramount goal of contract interpretation is to determine the Intent Df the parties. Nova Chemicals, Inc. v. Sekislli Plastics Co., Lkd" 579 F.3d 319, 323 (3d Cir. 2009), citing Garden State Tanning, Inc. v. Mitche1l1vianufacturinlL.Groul). [ne., 273 F.3d 332. 335 (3d, Cir. 200t), citing Meeting ï½ ï½¯ï½µï½¾ ..ki)l1e, Ltd. v. MelS<), 427 Pa. Super. 228,628 A.3d 854, 857 (1993). The strongest manifestation of that intent is the wording of the agreement jtself. Novl1 Chemicals, supra, citing \1cIlQU Bank. N.A. v. Aetna Busim:jjs Credit. Jnc" 619 F.2d 1001, t009 (3d Cir. 198) (applying Pennsylvania law). Language in 3: contract is tlonnally given its ordinary meaning, Nova Chemicals, ｾ＠ citing Light v. Miller, 303 Pa. Super. 527,450 A.2d 51, 53 (1982). However, ,ontr""t language is ambiguous ifit is reasonab1y susceptible of different constructions and capable of being understood in more than ouc sense. Nova Chemicals, supra, 9,!)oting Madison COllStruction CQ. y:__ HarJeysvilJe MutUAl Ins, CQ" 557 Pa. 595 (1999). 7 Me:lTlam-Web:>ter's Dictionary defines liability as '"the quality or state of being liable'" and "liahle" as "ohligated according to law or equity: tesponsibk." HHp:i!w'"\vw.mcrriam- webster3x'Jm1dictiQoaua.icabHity and liable. This is a hroader definition than the Rlack'., Law Dictionary definition offered by Johnson. It suggesto; that an actor is responsihle under law or equity at the time he (lcts wrongt\lily, which in this case would mean thc time that Johnson's medical treatment took place. Moreover. if the word "Hability" in the Agreement is given its Black's I.aw Dictionary meaning, the result is untcnable. As PHS pointed oul at trial, ifll J.l assumes liabiJity onJy for judgnlents arising after the Closing Dale, then PHS could be named as a defendant in a lawsuit addressing actions taken by CPS before the dosing dale - bUi only in a separate action, filed after the enrry of a first judgment. The first trial would be cOUlpletely useless. CPS would probably (<IS here) pcrmit a default entry against it, and PHS, as a ｮｯｾｰ｡ｲｴｹＬ＠ would not be able fo assert a defense on the merits of the case. A double trial would ahvays be necessary. It is difficult to see how the parties could have intended tbis clumsy result, which benefits neither of them. It is much more likely that they dId not use lhe \vord '''liability'' in it::. Black':, Law Dictionary sense, but, rather in the broader, Mcrriam-WepS!el;', sense referring to the time at which actions were taken rcsulting in a liability. "lbb would lead to the more logical conclusion that PHS agreed to assume liability for services arising lUidcr tht: coulrad CPS had made with the Pennsylvania DeparLmenl of Corrections, but only when PHS wa<::; actually lnvolved in the hehavlor giving rise to the liability, i.e" after the closing date. Accordingly, I agree with Judge Kauffman that PHS is not liable regarding the medical care oftcrcd 10 Johnson beciiuse it occurred before lhc closing date. My conclusion is bolstered by the fact that,: 3.3 -although very awkwardly wordedapparently seeks to exclude liability for litigation in which CPS was tactually involved. ｾ＠ Watson y. Prison Health Services. lnc" c.c.P. Somerset Cty., No. 399 Civil 2003 (Jan. 22. 2(09), which interprets the same Agreement. and slates at unnumbered page 9: "In the instant the lAgreement J betwecn PHS and CPS includes a section entitled 'Excluded Liabilities; ｣｡ｾ･Ｌ＠ whieh specifies that PHS did not assume llny oreps'!' litigation or claims ,.. , B. De Facto Merger Johnson also argue!) {hal, regardless ofwhal1he Agreement may provide, PHS is the suceessor in interest to CPS under thc doctrine of defacto merger. In a civil rights action, state common law is applied where the federal statute is deficient in a necessary provision. 42 U.S,C, § 1988. As the Court of Appeals for the Third Circuit once expressed it, 42 U.S.C. § 1988 invites federal courts to adopt state TIlles to further, but not to frustrate, the purposes of civil rights acts. Miller v. Apartments & Home, o.f.NL 646 F.2d lOt, 106 (3d Cir. 1981). Here, I do not find that a de facto merger existed, under either state or federal law, The general rule, under either Pennsylvania or federal common law, is that when one company sells all or substnntinlly all of its assets to another company) the purchasing company is not Iiahle as a successor. U.S. v. General flattery Com" Inc., 423 F.3d 294, 305 (3d Cir. 2005); Continental Insurance Cu, v. Sehneider, Inc., 873 A.2d 1286, 1929 (Pa, 2005), ｾｩＮＡ｣､＠ Qree!l!!wWI Center. Inc. v, in E,,,,,, In'Y!l!!l\1I' Cu" Slip Copy, 2010 WL 827836 (3d eir. Mar. II, 2010) at *3. One exception to thls rule is adefactn merger, which occurs when the purchaSing company is "merely a continuation ofille selling corporation." General Bauery ï½ ï½ ï½²ï½°ï¼¬ï½¾ï¼»ï¼  Continental, supra. 9 Under either federal or Pennsylvania law, a court is to consider the following factors in deciding whether 11 defaclo merger has occurred: (1) continuity of owncrship; (2} cessation of the ordinary business by, and dissolution 01: the predecessor as soon as practicable; (3) assumption by thc successor of liabilities ordinarily necessary for uninterrupted continualion of the business; and (4) continuity of the management, personnel, physlca1locatiofl, and the general business operation. General Battery Com., supra; Continental_ v. Schneider, 810 A.2d 124, 134-135 (Pa. Super. 20021; Berg Ｇｾ｢ｩｬｮﾣＮ＠ Systems. IIW. ¢.V. Hull Corp., 435 F.3d 455 at 468·469 (3d Cir. 2006), The major djflbrence between federal and state law is tbat, under current Pennsylvania law, continuity of ownership is crucial; without it, no deiiu.:lo merger can be found. In Fizz..aJ1o Brothers COncrete Pr9ducts, Inc. v. XLN, Inc., 973 A.2d 1016 (Pa. Super. 2009). the Pennsylvania Superior Court wrole: With regard to continuity ofownership, the trial eourt acknowledged that none of the owners ofXLl>< became owners ofXLl><T. [Citation omitted). This finding, by itseU: should have: ended thc trial court's consideration of XLNT's potential successor liabililY, Continuity of ownership is a key element that must exist in order to apply thc de/aclo merger doctrine, since in the absence of a trans1er of stoek for assets the consequence of the transaction is not the functional equivalent of a merger, Instead, where there js no continuity of ownership the transaction is merely an ï½¡ï½²ï½­ï½³ï½¾ï½ ï½¥ï½®ï½§ï½´ï½¨ï¼  transaction between two corporations and not in any sense a merging of two c.orporations into one, 973 A.3d at 1020, On May 19,2010, the Pennsylvania Supreme Court granted allocatur in Fizzano Brothers. 994 A.2d 1081 (Pa. May 19, 2010) (NO. 390 M"L 2009). Therefore, tbe Fizzano rule is not yet finaL Nevertheless. the Supedor Court's reasoning is compelling. and it represcnts Pennsylvania law as it now stands. !O There is no holding similar h) Fizzano under federal common law, making continuity of ownership essential. !\icvcrthclcss, it remains a very significant factor in this circuit under federal common law . (ieneral Battery COnt. supm. (de facto merger found where the seller obtained mostly eash, hut also a small amount of stock, sinee it represented an "ongoing interest in their a"ets"); Ei@ornv. M.L. Rubcr!9n Construct jon Co" 656 F. Supp.2d 463, 476 (D.NJ. 2009) (no de jac/a merger found in an ERISA ease where continuity of ownership did not exist, calling :;-;0. OO-CV-3057 (ED, Pa. Feb. continuity of o\\l1ership "oftcn critical"); U.s, v, Exide, elv. A 27.2002) (defacto merger found in a CERCLA case where there was continuity of ownership); U.S. v. Atlas Minerills & Chemical" Civ. A. No. 91-CV-5118, 1995 \VL 510304 at +90 (E.D. Pa, Aug. 22; 1995) {no dejel(;fO merger found in a CERCLA case without continuity of ownership, dling HR.W Systems, Inc. v, Washington Gas Light Co., 823 F. Supp. 318 (D. Md. 1993)) (writing that the "most critical element of the test is continuity of ovmership'') and In Re Acushnet Riyer and New Bedford Harbor, 712 F. Supp. 1010,1015 (D. M.s;. 1989), (calling continuity o[ownership a "key requirement.")), Even in the few cases from other slales where continuity of oWl1ership was not required for a finding of dcj(u:to merger, the courts looked for something similar. In Kennedy v. City of Zanesville, OH, 505 F. Supp.2d 456, 479 (S.D. Ohio 2007), the United States District Court ror the District of Ohio applied the Ohio Jaw of de facto mcrger in it § 1983 case. ï½ ï½¾ï½ ï¼ºï½´ï½®ï½¥ï½¤ï½¹ï¼¬ï¼  unlike this ease, involved two municipal entitles, rather than privately owned corporations. There were no shareholders involved in either entity. Nevertheless, the court did not skip the "continuity of mvnership" factor. Rather, it found that the merger and subsequent dissolution of the entities resulted in a relationship between them that was similar to a continuity of shareholders. l! AIS0, in Woodrick v. Jack Burke Real Estate, Inc., 703 A.2d 306, 314 (NJ Super. A.D. 1997), a New Jersey .state eourt found a de facto merger even though tbere \\oas no continuity of stock ovmership, There, however, the court emphasized the fact that a principal of tile seller became an officer of the bu)-er and assumed management ofthe assets which were sold. Id. Undt!'f the Agreemenl in this case, PHS paid $14 million in cash for the assets of CPS. Agreement al ｾ＠ 2.1. There was no continuity of stock ownership. Apparently, CPS's owners, Kenan and Emre urnar, entered consulting agreements with PHS. Agreement, at vi (Table of Schedules) at 6,1.14(9) and (d). Ho\\"cver, there is no evidence that either uf them became a PHS officer, as: in ï½ ï¼¬ï½¾ï½©ï½¯ï½¤ï½²ï½£ï½«ï¼  or assumed management of PHS. Cnd.;:r either Pennsylvania or federal common law) ｴｨ･ｲｦｯｾ＠ r conclude that the lack of continuity of ownership is fatal to Johnson's claim of a de facto merger between CPS and PHS. It is difficull to see how two entities can be said tu merge when the selling entity no longer has an interest in the husiness. C. Successor Liability in Civil Rights Ca<;es; Brzozowski v, CPS Finally, Johnson has pointed to the case ofDrzozowski v. Correctional Physician Services. Inc., 360 F.3d 173 (3d Cir, 2004). In this Title VII employment discriminatiun case, the Court of Appeals for the Third Circuit interpreted the very asset purchase agreement at issue here - tho March 29, 2000 Agreemem between CPS and PHS - and found that the plaintiff should have been pennitted to amend her claim to name PHS ilG a successor in inlerest to CPS, The Brzuzowksi court did not apply the test for de /'11:10 merger, as described ahove. In::;t.ead, it employed a test earlier developed for use in employmellt discrimination cases, requiring only "( I) continuity in operations and work force of the succe::;,sor and predecessor empluyers; (2} notice to the successm-employer orits predecessor's legal ()bllgation; and (3) the 12 ability of the predceessor to provide adequate relief directly," 360 F.3d al 178, ï½¾ Reeo v, ARC Wyter Treatment Co, ofPennsylv.nia, 181 F,3d 396, 401 (3d ('ir, 1999), Johnson recognizes that Br7.n7.owski is not a § 1983 case such as this. but hc argues that equitable factors compel a similar treatment in the context of a civil rights action. He argues that he should also have the benefit of using the Rego test, rather than the usual test lor suecc-ssor liability, This argument is not ptoperly considered here_ This is because Rule 60(b )(2) permits a motion seeking relief based on the existence of newly ､ｩｾｴＺｯｶ･ｲ＠ ï½¥ï½¶ï½©ï½¤ï½¾ï¼¡ï½¬ï½ ï¼  whieh could not have been discovered by the exercise of due diligence in enough time to move for a new trial under Fed, R. Ci". Pr, 59(b), The Brzozowski case is not such evidence. Il was liled on Fcbrumy 23, 2004, several months bd'ore Johnson filed his response to PHS's motion for summary judgment on April 20, 2004, Docket at Document ｾｯＮ＠ 101. In any event, Brzozo'l.vski did not make new law. as it used the test formulated In Rego, a Third Circuit case decided in 1999. The argument could. therefore, have been raised in John.'illn's response to PHS' s motion lor ｾｵｭ｡ｲｹ＠ judgment, and does not rely on new evidence, as required by Rule 60(b)(2).1 Morc.{)Ycr, it b: by no means clear that Johnson's argument could succeed. The BrzoZOw::iki court did not basc its de.cision on a cunsideration unique to civil rights piaintiffs, Instead, its decision was based upon principles of labor and emp]uymenllaw, The court noted tbat "Title VII was molded to a large degree on the National Labor Relations Act. including its \Thc BIZ(JZ(lwski issue was (llso not raised in Johnson's original Rule 6O(b)(2) motion, tiled March 1,2006. '1111S motion discussed only the Asset Purchase Agreement. ｮｲｺｯｾ＿ｪ W3B mentioneu in the District Court f{lf Ibe lin;[ time in PHS's supplemenlary brief on this motion, filed after the remand. I, ｩｾ＠ possihle Lbut lohnM:ln raGed the urgumcn! before the Court of Appeals. 1f that is the case, it is notable that there was no mention al ull ur the argument in the Third C[rculCN appeal decision; remand W8$ granted only to revisit the Rule 6O(b)(2) m(l1iQn. 13 relief provisions." 360 F .3d at 177, It Jt:1:1ineJ Lo apply the traditional de facto merger test because "the Supreme Court has expanded the common law role in the field aflabar ｲ･ｬ｡ｵｯｮｾＺＧ＠ lll" £ililllIGolden State Bottling Co, v, NLRB, 414 U,S, (1973), Reg", the origin ofthe three· point test set forth above, was an employment discrimination casc, further, lhe other Court of Appeals cascs to which the :Brzo7.owski coun looked Involved t:mployment discrimination, 360 P,3d at 178, n. 10, dring Rojas v, ..IK communkaLiQns, Inc., 87 FJd 745 (5th Cir. 19%) (racial discrimination); EEOC v, G-K-G, inc" 39 fJd 740 (71h Cir, 1994) (age discrimination); Slack v, Hayens, 522 F.2d 1091 (9th Cir, 1975) (mee discrimination), Thus, the Brzozowski decision was founded on a weH-esto.bli:;hed rule pennitting a finding of liability against n successor in interest in employment liabllity cases, including ｴｨｯｾ･＠ brought under Title VII. For this reason, it is not persuasive ill a § 1983 case sueh as this, where there is very Uttle ｡ｰｴｩ｣ｾ｢Ｑ･＠ ｣ｯｭｮｾｬ｡ｷ＠ precedent, and ccrtain1y none suggesting that anything other than a rule of successor liability should be applied. For the reasons set forth above, I Hnd that the discovery of the Asset Purchase Agreement would not havc changed the outcome of trial under Rule 60. Accordingly, Plaintiffs Motion for Relief from Judgment under Fed, R, Civ. Pr, 60(b)(2), docketed as Document Nu, 135. j, hereby DE'lIED, BY THE COURT: JACOB HART UNITED' ATES MAGISTRATE JUDGE 14

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