Commercial Litigation and Arbitration

§ 1292(b) & Sua Sponte Reconsideration

It is bad enough to lose on a motion for reconsideration after winning initially. It is worse to lose on reconsideration when no motion has even been filed. In Marsden v. Select Medical Corp., 2007 U.S. Dist. LEXIS 9893 (E.D. Pa. Feb. 6, 2007), the plaintiff had defeated a motion to dismiss a securities fraud class action complaint. The defendants moved the District Court to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Upon review of that motion, the Court sua sponte reconsidered and vacated its original decision, holding that, as long as the District Court has jurisdiction over an action, ‛it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so“ (citation and quotation omitted). The Court proceeded to reverse its loss causation analysis under Dura, dismissed the action, and denied the § 1292(b) motion as moot.

Memorable quote: ‛Justice Frankfurter once remarked that, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ Henslee v. Union Planters Nat’l Bank & Trust Co., 355 U.S. 595, 600 (Frankfurter, J., dissenting). This is one of those moments.“

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