Niblett

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MELISSA A. NIBLETT, : Civil No. 1:21-CV-01345

:

Plaintiff, :

:

v. :

:

EXP REALTY, LLC, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

This matter is before the court on Plaintiff Melissa A. Niblett’s motion to

alter or amend the court’s July 29, 2025 order, Doc. 242, pursuant to Federal Rule

of Civil Procedure 59(e) or in the alternative for interlocutory appeal (“motion for

reconsideration”). (Doc. 245.) For the reasons that follow, the court will deny

Niblett’s motion for reconsideration.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Niblett purchased a townhome from Defendant Jennifer Hommerbocker

(“Hommerbocker”) in 2019. (Doc. 241, p. 2.)1 In this real estate transaction, eXp

Realty, LLC (“eXp”) agent Colin Cameron (“Cameron”) represented Niblett, and

agent Laury O’Neill (“O’Neill”) represented Hommerbocker. (Id.) Nicole

1 For ease of reference, the court uses the page numbers from the CM/ECF header. Moreover, in

this memorandum opinion, the court includes only a brief recitation of the facts of this case for

the purpose of resolving Niblett’s motion for reconsideration. A more detailed recitation of the

facts and claims of this case, and the parties’ disputes about those facts, are set forth in the

court’s memorandum opinion granting Defendants eXP Realty, LLC, Colin Cameron, Nicole

Butcher, Laurey O’Neill, and Jennifer Hommerbocker’s motions for partial summary judgment

and summary judgment. (Doc. 241, pp. 2–11.)

Butcher (“Butcher”), another eXp agent, accompanied Niblett on a walkthrough of

the town home. (Id.)2 Niblett avers that the eXp agents are dual agents of both

Niblett and Hommerbocker. (Id.) Niblett alleges that Hommerbocker learned of

problems with the townhome’s backfilling, did not adequately address those

problems, and together with the eXp Defendants, failed to inform her of those

problems before she bought the townhome. (See id. at 3.)

Niblett’s amended complaint contains eight claims. (Doc. 72, ¶¶ 145–216.)

When Defendants filed their motions for summary judgment, five claims remained.

(Doc. 241, p. 10.) In those remaining claims, Niblett alleged that eXp, Cameron,

Butcher, and O’Neill violated the Pennsylvania Unfair Trade Practices and

Consumer Protections Law (“UTPCPL”), 73 P.S. § 201-1–201-10, and brought

state law fraud, fraudulent concealment, fraudulent inducement, and concert of

action claims against all defendants. (Doc. 241, p. 10.)

eXp, Cameron, and Butcher filed a partial motion for summary judgment,

and O’Neill joined that motion. (Docs. 221 & 222.) Hommerbocker filed a

separate motion for summary judgment. (Doc. 224.)3 The court granted both

motions and ordered that final judgment in favor of the eXp Defendants and

2 The court refers to Butcher, Cameron, O’Neill and eXp itself as, collectively, “the eXp

Defendants.” The court refers to the eXp Defendants and Hommerbocker, collectively, as

“Defendants.”

3 The court refers to these motions, collectively, as the “motions for summary judgment.”

Hommerbocker on Niblett’s state law fraud, fraudulent concealment, fraudulent

inducement, and concert of action claims will be entered at the conclusion of the

case. (Doc. 242, pp. 1–2.) The court also held that should Niblett recover on her

UTPCPL claim at trial, her damages will be limited to $100. (Doc. 241, p. 26;

Doc. 242, p. 2.)

Niblett filed the motion for reconsideration on August 26, 2025. (Doc. 245,

p. 1.) Therein, she requests “reconsideration, oral argument, and [] vacatur of the

orders granting summary judgment to the defendants, or, in the alternative,

certification to the Third Circuit for interlocutory appeal . . . .” (Id. at 1–2.) She

filed an accompanying brief in support on September 9, 2025. (Doc. 249.)

eXp, Cameron, and Butcher filed a brief in opposition to the motion for

reconsideration on September 23, 2025. (Doc. 253.) Hommerbocker filed a

separate brief in opposition the same day. (Doc. 254.) Niblett filed a reply on

October 7, 2025. (Doc. 256.) Therefore, the motion is ripe for disposition.

JURISDICTION AND VENUE

This court has jurisdiction under 28 U.S.C. § 1332 because the parties have

complete diversity and the amount in controversy exceeds $75,000.4 Venue is

4 Niblett is a Maryland Citizen, Cameron, Butcher, O’Neill and Hommerbocker are Pennsylvania

Citizens, and eXp is located in Pennsylvania. (Doc. 72, ¶¶ 1–3.)

appropriate under 28 U.S.C. § 1391 because all acts or omissions giving rise to the

claims occurred in the Middle District of Pennsylvania.

STANDARD OF REVIEW

Niblett’s motion for reconsideration requests that the court either alter its

order pursuant to Federal Rule of Civil Procedure 59(e) or, in the alternative,

certify the issues she presents for interlocutory appeal. (Doc. 245, pp. 1–2.) The

court addresses the legal standards applicable to Niblett’s two requests in turn.

A. The court may not grant Niblett relief pursuant to Federal Rule of

Civil Procedure 59(e).

Federal Rule of Civil Procedure 59(e) states that a “motion to alter or amend

a judgment must be filed no later than 28 days after the entry of the judgment.”

Rule 54(a) defines the term “judgment” as “a decree and any order from which an

appeal lies.” Rule 54(b) states that:

When an action presents more than one claim for relief—whether as a

claim, counterclaim, crossclaim, or third-party claim—or when

multiple parties are involved, the court may direct entry of a final

judgment as to one or more, but fewer than all, claims or parties only if

the court expressly determines that there is no just reason for delay.

Otherwise, any 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.

The court’s July 29, 2025 order did not adjudicate all of the claims in this case.

(Doc. 242, p. 2 (“The only remaining claim in this case is the UTPCPL claim

against eXp Realty, Colin Cameron, Nicole Butcher, and Laury O’Neill.”).) And

the court did not enter final judgment as to any of the claims the order adjudicated.

(Id. (“Final judgment in favor of all defendants on Counts II through V shall be

entered at the conclusion of this case in accordance with the Federal Rules of Civil

Procedure.”)) “Partial summary judgment orders are interlocutory decisions,” so

“a party against whom summary judgment was entered as to less than all claims

against all parties may not seek relief under Rule 59(e).” Azer Sci. Inc. v. Quidel

Corp., No. 5:21-CV-02972, 2023 WL 289696, at *2 (E.D. Pa. Jan. 18, 2023)

(quoting Robinson v. Fair Acres Geriatric Ctr., No. CV 15-06749, 2020 WL

1313721, at *15 (E.D. Pa. Mar. 20, 2020), aff’d, 842 F. App’x 779 (3d Cir. 2021)).

Therefore, the court may not grant Niblett’s requested relief pursuant to Rule

59(e).

B. The court construes Niblett’s motion for reconsideration to be

brought pursuant to Federal Rule of Civil Procedure 54(b).

Contrary to Rule 59(e), Rule 54(b), allows the court to “revise[]” any order

or judgment that “adjudicates fewer than all the claims or the rights and liabilities

of fewer than all the parties” in a case “at any time before the entry of a judgment

adjudicating all the claims and all the parties’ rights and liabilities.” Accordingly,

a party may move for reconsideration of a court’s interlocutory order pursuant to

Rule 54(b) any time before the court enters final judgment on all the claims

pending in the case. In re Anthanassious, 418 F. App’x 91, 95 (3d Cir. 2011)

(recognizing that a trial court could reconsider an interlocutory order pursuant to

Federal Rule of Civil Procedure 54(b)); Qazizadeh v. Pinnacle Health Sys., 214 F.

Supp. 3d 292, 295 (M.D. Pa. 2016) (“The court reaffirms the better-reasoned view

that motions for reconsideration of interlocutory orders—whether denials of

summary judgment, grants of partial summary judgment, or any other non-final

orders—are motions under Federal Rule of Civil Procedure 54(b).”) In the interest

of efficiency, the court will consider Niblett’s motion for reconsideration to be

brought under Rule 54(b) and will address the merits of the arguments she

presents.5

A district court may reconsider an interlocutory order “even if the movant

cannot show an intervening change in controlling law, the availability of new

evidence that was not available when the court issued the underlying order, or ‘the

5 Hommerbocker argues that, because Rule 59(e) does not apply to Niblett’s motion, the motion

is untimely. (Doc. 254, pp. 6–8.) Middle District of Pennsylvania Local Rule 7.10 states that

“[a]ny motion for reconsideration or reargument must be . . . filed within fourteen (14) days after

the entry of the order concerned. This rule is not applicable to a motion to alter or amend a

judgment under Fed. R. Civ. P. 59.” But the plain text of Rule 54(b) permits the court to alter its

interlocutory orders “at any time” before the entry of final judgment on all claims. When the

Federal Rules of Civil Procedure conflict with a court’s local rules, the former take precedence.

Milesco v. Norfolk S. Corp., No. 1:09-CV-1233, 2010 WL 11714013, at *7 (M.D. Pa. Aug. 18,

2010) (“When court orders or local rules conflict with the mandates of the Federal Rules of Civil

Procedure, the latter must triumph”) (citing Lasky v. Cont’l Prod. Corp. 804 F.2d 250, 255 (3d

Cir. 1986)). Therefore, the court finds that Niblett’s motion is timely when construed as a

motion for reconsideration pursuant to Federal Rule 54(b). Harding v. Jacoby & Meyers, LLP,

No. CV 14-5419, 2021 WL 2472323, at *1 (D.N.J. June 16, 2021) (Finding that a Rule 54(b)

motion for reconsideration was not restricted to the time limits for motions for reconsideration

set by the court’s local rules).

need to correct a clear error of law or fact or to prevent manifest injustice.’”

Qazizadeh, 214 F. Supp. 3d at 295 (quoting Max’s Seafood Café ex rel. Lou–Ann,

Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).6 “Instead, the court may

permit reconsideration whenever consonant with justice to do so.” Id. (quoting St.

Mary’s Area Water Auth. v. St. Paul Fire & Marine Ins. Co., 472 F. Supp. 2d 630,

632 (M.D. Pa. 2007)) (internal quotation marks omitted).

Nonetheless, a trial court must exercise the discretion Rule 54 grants “in a

responsible way, both procedurally and substantively,” and “[e]ffective trial court

management requires a presumption against reconsideration of interlocutory

decisions.” Anthanassious, 418 F. App’x at 95–96. The movant must show good

cause for reconsidering the prior decision, and good cause is not shown by

rearguing points already made or presenting new arguments or evidence that could

have been raised before the court entered the decision at issue. Qazizadeh, 214 F.

Supp. 3d at 295–96; Stockton v. Wetzel, No. 1:16-CV-00613, 2023 WL 5751409,

at *2 (M.D. Pa. Sept. 6, 2023). Overall, a motion for reconsideration “should not

be used to try to get a ‘second bite at the apple . . . .’” Qazizadeh, 214 F. Supp. 3d

6 The court may still look to these factors for guidance, even though they are not binding, in

considering Niblett’s Rule 54(b) motion. Wells v. Houston, No. 2:22-CV-01641, 2024 WL

4591445, at *2 (W.D. Pa. Oct. 28, 2024) (quoting Nyamekye v. Mitsubishi Elec. Power Prods.,

Inc., No. CV 17-852, 2018 WL 3933504, at *3 (W.D. Pa. Aug. 16, 2018)).

at 295 (quoting Kropa v. Cabot Oil & Gas Corp., 716 F. Supp. 2d 375, 378 (M.D.

Pa. 2010)).7

C. 28 U.S.C. § 1292(b) governs Niblett’s request to certify the court’s

partial summary judgment rulings for interlocutory appeal.

A district court may certify an order for appeal if the court finds that it

“involves a controlling question of law as to which there is substantial ground for

difference of opinion and that an immediate appeal from the order may materially

advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Thus,

certification under § 1292(b) is only proper when “(1) the issue involve[s] a

controlling question of law; (2) as to which there are substantial grounds for

difference of opinion; and (3) an immediate appeal of the order may materially

advance the ultimate termination of the litigation.” Simon v. United States, 341

F.3d 193, 199 (3d Cir. 2003). The party seeking a certificate of appealability bears

the burden of showing that the certificate should issue. Consumer Fin. Protection

Bureau v. Navient Corp., 522 F. Supp. 3d 107, 113 (M.D. Pa. Feb. 26, 2021)

(citing Orson Inc. v. Miramax Film Corp., 867 F. Supp. 319, 320 (E.D. Pa. 1994)).

7 See also Nyamekye, 2018 WL 3933504, at *3 (“In discussing the scope of a district court's

discretion to reconsider an interlocutory decision, the Third Circuit Court of Appeals has

explained that while ‘a court has the power to revisit prior decisions of its own or of a coordinate

court in any circumstance . . . as a rule courts should be loathe to do so in the absence of

extraordinary circumstances such as where the initial decision was clearly erroneous and would

make a manifest injustice’”) (quoting In re Pharmacy Benefit Managers, 582 F.3d 432, 439 (3d

Cir. 2009)).

DISCUSSION

Niblett argues that the court’s memorandum opinion and order granting the

eXp Defendants’ motions for partial summary judgment and Hommerbocker’s

motion for summary judgment “appear, generally, clearly erroneous, in some cases

manifestly unjust, as well as in contravention of the summary judgment standards,

and finally, in some instances, in direct contravention of controlling law.” (Doc.

245, p. 1.) After discussing Niblett’s arguments, the court will specifically address

several ethically problematic assertions made by counsel in briefing Niblett’s

motion.

A. Niblett’s arguments in support of her motion for reconsideration

Niblett identifies several specific points in the court’s reasoning that she

argues justify reconsideration. (Id. at 2–14.) The court addresses each in turn.

1. Niblett has not presented a valid reason to reconsider the

court’s refusal to consider the “preliminary statements”

Niblett included in her responses to defendants’ statements of

material fact.

Niblett filed a separate response to each of the two statements of fact

Defendants filed. (Docs. 231 & 232.) She included a “preliminary statement” in

both responses. (Doc. 231, pp. 1–18; Doc. 232, pp. 1–6.) The preliminary

statements are not identical, but they both precede Niblett’s specific responses to

Defendants’ respective statements of material fact.

The court expressly declined to consider Niblett’s preliminary statements

when analyzing the motions for summary judgment. (Doc. 241, p. 2 n.1.) It found

that the preliminary statements “outline[] the factual scenario in a narrative format

and make[] legal argument,” and that because “this is contrary to this court’s Local

Rules, the court will not consider the preliminary statement and will consider only

[Niblett’s] responses to Defendants’ numbered statement of facts.” (Id. (citing

M.D. Pa. L.R. 56.1.) Niblett argues that the court improperly refused to consider

her preliminary statements because: her paragraph-numbered answers incorporated

the statements; the court may consider any materials in the record when deciding a

motion for summary judgment; and her responses to Defendants’ statements of

material fact are not briefs, they could incorporate other materials by reference.

(Doc. 245, pp. 3–4; Doc. 249, pp. 6–10.) She claims that the court’s refusal to

consider her preliminary statements deprived her of a complete and fair analysis of

the question of whether a dispute of material fact existed. (Doc. 249, pp. 8–9.)

Local Rule 56.1 states, in relevant part, that:

The papers opposing a motion for summary judgment shall include a

separate, short and concise statement of the material facts, responding

to the numbered paragraphs set forth in the statement required in the

foregoing paragraph, as to which it is contended that there exists a

genuine issue to be tried. Statements of material facts in support of, or

in opposition to, a motion shall include references to the parts of the

record that support the statements.

Niblett’s preliminary statements do not respond to the numbered paragraphs set

forth in Defendants’ statements of material fact; they present her understanding of

the factual issues in the case in narrative form. (Doc. 231, pp. 1–18; Doc. 232, pp.

1–6.) Additionally, they frequently veer into argument about whether a dispute of

material fact exists in violation of the rule’s request for “a short and concise

statement of the material facts.” M.D. Pa. L.R. 56.1; (see, e,g., Doc. 231, p. 18

(“Thus, Defendants frantic argument that even if there were concealed latent

material defects, Plaintiff suffered no damages, is as false as the argument they

abandoned. Accordingly, there are no grounds to grant any of the defendants

summary judgment”); Doc. 232, p. 6 (“One or all of the defendants have lied about

concealing material defects from Plaintiff leaving no doubt that material defects

were concealed in violation of the UTPCPL and the common law.”) Allowing

Niblett to circumvent Local Rule 56.1 by simply “incorporate[ing]” an improperly

formatted and separate section into her response to Defendants’ statements of

material fact would make the rule’s requirements obsolete. (Doc. 249, p. 7.)

Moreover, the Third Circuit recognized, in a case Niblett cites, that “the

District Court is in the best position to determine the extent of a party’s

noncompliance with [M.D. Pa.] Local Rule 56.1, as well as the appropriate

sanction for such noncompliance.” Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604,

613 (3d Cir. 2018); (Doc. 249, p. 8.) In that case, the court found “no error” in the

district court’s summary judgment analysis because the district court “fully

addressed plaintiffs’ factual allegations” and the plaintiffs failed to identify any

prejudicial error. Weitzner, 909 F.3d at 614 & 614 n.12. Here, the court

considered Niblett’s responses to the numbered paragraphs in Defendants’

statements of material fact as well as her briefs in opposition. (Doc. 241, p. 2 n.1.)

Moreover, Niblett claims that the court’s “analysis failed to include (inter alia) the

following and other dispositive facts,” but merely excerpts a deposition transcript

without explaining why that excerpt would have been dispositive to the court’s

ruling. (Doc. 249, p. 9.) For these reasons, the court’s application of Local Rule

56.1 does not give cause to revisit its July 29, 2025 order. (Doc. 242, pp. 1–2.)

2. Niblett has not presented a valid reason to reconsider the

court’s conclusion that Niblett could recover no more than

$100 on her UTPCPL claim.

Niblett argues that, “where a trial court caps [UTPCPL] damages at $100

pretrial, no matter what Plaintiff may prove at trial,” the legislative intent of the

UTPCPL is “undermined,” so the court should reconsider its order. (Doc. 249, p.

10.) Niblett relies on the Supreme Court of Pennsylvania’s holding in Dwyer v.

Ameriprise Financial, Inc., 313 A.3d 969, 973 (Pa. 2024), to make this argument.

(Doc. 249, p. 12 (“Because this ruling is so obviously without consideration of

legislative intent and the Dwyer decision, reconsideration is necessary.”).)

Niblett made an almost identical argument, and cited Dwyer, in her briefs in

opposition to Defendants’ motions for partial summary judgment and summary

judgment. (Doc. 235, p. 13) (“Even more useful, the High Court directs the trial

court to follow a legislative and judicial philosophy that ‘benefits the public at

large by eradicating’ fraudulent acts or practices by sellers.”) (quoting Dwyer, 313

A.3d at 978). The court considered this argument and found it unpersuasive.

(Doc. 241, p. 24 (“Niblett responds that the UTPCPL is a remedial statute, which is

to be construed liberally, and points to case law showing that ‘ascertainable loss’

can be very small in these types of cases.”)

“Whether involving a final or interlocutory order, a motion for

reconsideration is ‘not to be used as a means to reargue matters already argued and

disposed of or as an attempt to relitigate a point of disagreement between the Court

and the litigant.’” Qazizadeh, 214 F. Supp. 3d at 295 (quoting Ogden v. Keystone

Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002).) Therefore, Niblett’s

UTPCPL legislative purpose argument does not demonstrate cause to reconsider

the court’s July 29, 2025 order. (Doc. 242, pp. 1–2.)

3. Niblett has not presented a valid reason to reconsider the

court’s treatment of the parties’ dual agency agreement.

Niblett’s motion for reconsideration presents multiple arguments about the

“Dual Agency Addendum” she executed with Hommerbocker and its effect on the

court’s holding. (Doc. 245, pp. 6–8; Doc. 249, pp. 12–15.) It is not clear to the

court whether Niblett argues that the court should have considered the dual agency

addendum’s impact on the obligations of Hommerbocker, the eXp Defendants, or

both. Accordingly, the court addresses the dual agency addendum’s potential

application to the court’s adjudication of both Hommerbocker and the eXp

Defendants’ motions for summary judgment.

In her brief in support of her motion for summary judgment, Hommerbocker

argued that “[t]he release language contained in the Standard Agreement of Sale

precludes any claims by Plaintiff [against] Defendant Hommerbocker stemming

from the sale of the property.” (Doc. 228, pp. 14–15.) Niblett did not address this

argument. (Doc. 236 pp. 1–17; Doc. 241, p. 15 (“Niblett does not respond to any

of these arguments.”).) The dual agency addendum was available to Niblett before

she filed her brief in opposition to Hommerbocker’s motion for summary

judgment. (Doc. 234-6, p. 2.) A motion for reconsideration should not be used “to

raise new arguments or evidence that could have been proffered prior to the

issuance of the order in question . . . .” Qazizadeh, 214 F. Supp. 3d at 295–96

(citing McDowell Oil Serv., Inc. v. Interstate Fire & Cas. Co., 817 F. Supp. 538,

541 (M.D. Pa. 1993)). Therefore, Niblett’s invocation of the dual agency

addendum does not give cause to alter the court’s ruling on Hommerbocker’s

motion for summary judgment.

As for the eXp Defendants, Niblett generally argues that they are “liable for

concealing and/or withholding the disclosure of latent defects under the Dual

Agency Addendum” and “on Plaintiff’s common law fraud claims.” (Doc. 249,

pp. 13–15; see Doc. 256, pp. 16–21.) The court granted the eXp Defendants’

motion for partial summary judgment because Niblett did not present evidence

sufficient to create a dispute of material fact about the damages she suffered as a

result of the eXp Defendants’ alleged misrepresentations. (Doc. 241, pp. 21–22,

26.) Niblett’s argument about the dual agency addendum in her motion for

reconsideration does not address the damages she allegedly suffered because of the

eXp Defendants’ alleged misrepresentations. (Doc. 245, pp. 6–8; Doc. 249, pp.

12–15 (“These real estate agents all had actual knowledge of a material defect that

was not disclosed to Plaintiff”); Doc. 256, pp. 16–21.) Accordingly, the dual

agency addendum does not provide cause to revisit the court’s decision to grant the

eXp Defendants’ motion for summary judgment. (Doc. 242, pp. 1–2.)

4. Niblett has not presented a valid reason to reconsider any

determination made by the court regarding Hommerbocker’s

credibility.

Niblett argues that the court made an impermissible credibility determination

in its summary judgment analysis by labelling Hommerbocker’s testimony as

“honest” or “honestly stated.” (Doc. 245, pp. 8–9; Doc. 249, pp. 15–16.) In its

memorandum opinion, the court noted that “Hommerbocker contends she honestly

believed the repairs on her side of the home were completed.” (Doc. 241, p. 4.)

This is not a credibility determination; it is a description of a party’s assertion. In

the next sentence, the court notes that “Niblett contends that Hommerbocker knew

the repairs were not completed on her side due to her taking a settlement and

emailing the RWC report to O’Neill shortly before the completion of the sale to

Niblett.” (Id.)

On the next page of its memorandum opinion, the court noted that

Hommerbocker “did not explain what these issues were in the section provided to

do so and claims she ‘honestly must have missed that section[.]’” (Id. at 5.) The

phrase “honestly must have missed that section” is surrounded by quotation marks

in the opinion because it is a quotation from the parties’ statements of facts. (Doc.

232, p. 21.) This is also not a credibility determination. Therefore, Niblett fails to

show cause for reconsideration of the court’s July 29, 2025 order. (Doc. 242, pp.

1–2.)

5. Niblett has not presented a valid reason to reconsider the

court’s conclusion that Niblett profited from the sale of the

townhome.

Niblett argues that she still owes a balance on the promissory note she

executed before purchasing the townhome as demonstrated by the 1099-C form she

received, and the court improperly refused to consider evidence of that outstanding

balance or the taxes Niblett owes on any forgiven debt. (Doc. 245, pp. 9–11; Doc.

249, pp. 17–18; Doc. 256 p. 9.) Had the court considered this evidence, she

argues, it would not have found that Defendants presented evidence demonstrating

that she made a profit of $36,348.14 when she ultimately sold the townhome. (Id.)

Niblett described the 1099-C form and stated that taxes are due on her

cancelled debt in the “counter statement of the case” sections of her briefs in

opposition to Defendants’ motions for summary judgment. (Doc. 235, p. 9; Doc.

236, pp. 9–10.) However, in the argument section of her briefs, Niblett cited only

to her Exhibit 16, which she described as a “list of ascertainable damages” after a

discussion of caselaw. (Doc. 235, pp. 11–16 (“Whether there is a genuine issue of

material fact as to actual damages is easily resolved by comparing the feeble

arguments of the EXP Defendants to the itemized list of ascertainable damages

Plaintiff has provided”); Doc. 236, pp. 11–17.)

Niblett did not argue the materiality of the 1099-C form or point to evidence

demonstrating any specific tax liability in the argument section of either brief in

opposition. (See id.) If the party moving for summary judgment meets its burden

to identify “specific portions of the record that establish the absence of a genuine

issue of material fact,” then the burden shifts to the nonmoving party to “go

beyond the pleadings and come forward with specific facts showing that there is a

genuine issue for trial.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) and then quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))

(internal quotation marks omitted). “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by [] citing to particular parts of

materials in the record . . . or showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B).

Niblett cited only her Exhibit 16 in arguing that a dispute of material fact

existed, not the 1099-C or other unidentified evidence demonstrating the tax

consequences of her loan. (Doc. 235, pp. 11–16; Doc. 236, pp. 11–17.) For the

reasons explained in the memorandum opinion, the court found that the portion of

the record Niblett cited did not create a genuine dispute of material fact. (Doc.

241, pp. 19–23.) Moreover, nothing prevent Niblett from arguing that the 1099-C

or other unidentified evidence about tax liability created a dispute of material fact

in her briefs in opposition to the motions for summary judgment. She did not.

(Doc. 235, pp. 11–16; Doc. 236, pp. 11–17.) Therefore, she fails to show cause for

the court to reconsider its July 29, 2025 order. Qazizadeh, 214 F. Supp. 3d at 295–

96.

6. Niblett’s argument that the court’s ruling turns Pennsylvania

into a “buyer beware” state is not a reason to reconsider.

Niblett argues that the court should reconsider its order because “[t]he

answers provided by Plaintiff to the Defendants’ summary judgment motions

show[], or at the very least, raise[] a genuine issue of material fact that

Hommerbocker certainly knew about latent material defects on the property and so

did O’Neill. Yet, neither . . . provide[d] that necessary and mandatory disclosure.”

(Doc. 245, p. 12–14; Doc. 249, pp. 18–20.) Accordingly, Niblett claims that the

court’s decision to grant summary judgment in Defendants’ favor turns

Pennsylvania into a “buyer beware state.” (Doc. 249, p. 20.)

Niblett does not explain how this argument relates to: (1) The release

contained in the seller’s contract that shielded Hommerbocker from liability; or (2)

Niblett’s failure to prove that a dispute of material fact exists as to the extent of

damages she suffered as a result of the Defendants’ alleged acts. The court granted

the motions for summary judgment on those grounds. (Doc. 241, pp. 14–26.)

Therefore, this argument does not justify reconsideration of the court’s July 29,

2025 order. (Doc. 242, pp. 1–2.)

7. Niblett has not presented a valid reason to reconsider the

court’s conclusion that some of her evidence was inadmissible

hearsay.

Niblett argues that the court improperly found that an email she cited as

evidence of a disputed material fact contained “multiple levels of hearsay,” Doc.

241, p. 21. (Doc. 256, pp. 6–21.) She claims that the court should have considered

this evidence regardless of its status as hearsay because she could have ultimately

presented it in an admissible form at trial. (Id. at 12–13.) It is true that “[i]n ruling

on a motion for summary judgment, the court need only determine if the

nonmoving party can produce admissible evidence regarding a disputed issue of

material fact at trial.” Fraternal Ord. of Police, Lodge 1 v. City of Camden, 842

F.3d 231, 238 (3d Cir. 2016). But as Niblett recognizes in her reply, “[t]he

proponent need only explain the admissible form that is anticipated . . . In [City of

Camden, 832 F.3d at 238], the Third Circuit held that all that was required to

survive this aspect of a motion for summary judgment is that the proponent

identify the declarant and note their ability to testify.” (Doc. 256, pp. 12–13

(quoting Zamichieli v. Andrews, No. CV 12-3200, 2025 WL 1171594, at *2 (E.D.

Pa. Apr. 22, 2025) (internal citations and quotation marks omitted)). Niblett does

not identify where, in her briefs in opposition to Defendants’ motions for summary

judgment, she explained the admissible form in which her otherwise inadmissible

evidence would be presented at trial, nor where she averred that the parties who

made the hearsay statements would testify at trial. (Doc. 256, pp. 6–21.)8

Therefore, the court will not reconsider its July 29, 2025 order on these grounds.9

8 Niblett claims that “as for damages, which Defendants also claim is all hearsay evidence,

Plaintiff herself is the declarant of those damages and certainly available at her own trial.” (Doc.

256, p. 13.) The court assumes Niblett refers to her Exhibit 16, “a list of damages Niblett

believes that she incurred by virtue of her involvement with the property.” (Doc. 241, pp. 19–

20.) But the court found that Exhibit 16 did not create a dispute of material fact because it did

not connect Niblett’s alleged damages to Defendants’ alleged misrepresentations, did not cite to

supporting documentary evidence in the record, and was not provided during discovery, not

because it was hearsay. (Id. at 19–20.)

9 Niblett also argues that “the Court somehow wholly misconstrues the Fertich Report as a report

produced for or by Plaintiff’s expert, then blaming Plaintiff for failing to disclose it in

8. The court will not certify the issues presented in Niblett’s

motion for reconsideration for interlocutory appeal pursuant

to 28 U.S.C. § 1292(b).

Niblett argues that the court should certify the issues she presents in her

motion for reconsideration for interlocutory appeal because they involve

controlling questions of law “as to which there is a substantial ground for

difference of opinion” and “an immediate appeal from the order may materially

advance the ultimate termination of the litigation.” (Doc. 249, p. 20 (quoting 28

U.S.C. § 1292(b).) The party seeking a certificate of appealability bears the burden

of showing that the certificate should issue. Consumer Fin. Protection Bureau v.

Navient Corp., 522 F. Supp. 3d 107, 113 (M.D. Pa. 2021) (citing Orson Inc. v.

Miramax Film Corp., 867 F. Supp. 319, 320 (E.D. Pa. 1994)). Other than reciting

the standard, Niblett does not explain how the issues she presents qualify as

“controlling question[s] of law as to which there is substantial ground for

difference of opinion” or how “an immediate appeal from the order may materially

advance the ultimate termination of the litigation.” 28 U.S.C. § 1292. To the

extent Niblett argues that the arguments she presents in favor of reconsideration

also warrant an interlocutory appeal, the court finds that those arguments do not

discovery.” (Doc. 256, pp. 15–16.) She explains that “Fertich is not Defendants expert. Fertich

was employed by Freedom Mortgage to provide a report on the property to decide if it had any

value or was worth repairing. Because the report convinced Freedom Mortgage the property had

no value, Freedom Mortgage declared the mortgage lien valueless.” (Id.) Again, Niblett fails to

explain how this clarification impacts the court’s ultimate rulings regarding the seller’s release

agreement and her failure to demonstrate disputed material facts about damages. (Id. at 14–16.)

identify a controlling question of law “as to which there is substantial ground for

difference of opinion.” Id.

B. The court cautions Plaintiff’s counsel regarding ethically

problematic statements and allegations in Niblett’s briefing.

Throughout the briefing in support of Niblett’s motion for reconsideration,

Plaintiff’s counsel stated that the court is both incompetent and biased against

Niblett or her attorney, Richard J. Gerace. For example, counsel wrote “that the

court doubts counsel’s contact and correspondence with the United States

Department of Agriculture, LaTrice Buckner, Supervisory Management and

Program Analyst, demonstrates an unexplainable bias against Plaintiff or counsel .

. . .” (Doc. 245, p. 11.) Counsel accuses the court of “prejudging the outcome of

trial whereby no matter what Plaintiff proves this Court has already decided that

Plaintiff is not worthy of anything other than $100.” (Id. at 6.) Counsel

characterizes the court’s ruling as “a cynical use of power in blatant violation of

Plaintiff’s right to trial . . . .” (Doc. 256, p. 10.) And at various points throughout

her briefing, counsel claims that the court “suggests that Niblett was foolish,” Doc.

245, p. 14, “apparently does not think the Plaintiff deserves the law’s protection

because she did not hire enough professionals or do enough to protect herself,”

Doc. 249, p. 19, “[takes] off on [a] delusion,” Doc. 256, p. 15, and is generally

unfair. Doc. 256, p. 16.

Concerned by these unsupported allegations of bias and gross

mischaracterizations of the court’s actual ruling, the court examined Attorney

Gerace’s disciplinary record as a member of the bar of the Commonwealth of

Pennsylvania. The court found that the Disciplinary Board of the Supreme Court

of Pennsylvania publicly reprimanded Attorney Gerace in 2023 for accusing

another judge of bias in briefs he filed in support of a motion for summary

judgment. Office of Disciplinary Counsel v. Gerace, No. 26 DB 2023 (Pa. D. Bd.

Order Feb. 15, 2023) (explaining that Attorney Gerace alleged that the court

“stepped over the line of impartiality to side with a criminal organization and the

lawyers who lie to support that organization”).

Local Rule 83.23.2 largely adopts the Rules of Professional Conduct of the

Supreme Court of Pennsylvania. The Rules of Professional Conduct of the

Supreme Court of Pennsylvania prevent a lawyer from making “a statement that

the lawyer knows to be false or with reckless disregard as to its truth or falsity

concerning the qualifications or integrity of a judge . . . .” Pa. RPC 8.2(a).

It is entirely appropriate for an attorney to move for reconsideration and to

argue that a court has erred. It is also appropriate for an attorney to disagree with a

court’s analysis and to take an appeal based on that disagreement. However, it is

not permitted by the governing ethical rules to accuse a court of bias without

evidentiary support. If, in fact, a party has a good faith basis upon which to assert

that a court has a conflict or some perceived bias, then the party should file a

motion for recusal and state the evidence in support. Moreover, frivolously

accusing a court of lacking integrity in a written submission to the court is a

serious matter that could give rise to disciplinary action, as demonstrated by the

2023 public reprimand suffered by Attorney Gerace. The court strongly cautions

Attorney Gerace to provide supported legal arguments and factual statements

rather than ad hominem attacks against the court in future briefing. Apart from this

warning, the court finds that no further action on this issue is currently necessary.

CONCLUSION

For the reasons explained herein, Niblett’s motion for reconsideration and

her request for a certificate of appealability will be denied. An order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: March 23, 2026