Reginald Roberts v. Risa Ferman

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-2909

_____________

REGINALD A. ROBERTS,

Appellant

v.

RISA VETRI FERMAN; COUNTY OF

MONTGOMERY; JAMES MATTHEWS;

JOSEPH M. HOEFFEL, III; BRUCE L. CASTOR, JR.;

OSCAR P. VANCE, Jr.; SAMUEL GALLEN;

STEPHEN FORZATO; EDMUND JUSTICE;

CAROLYN T. CARLUCCIO; MARK BERNSTIEL;

TONI LUTER, Sued Individually Held Liable Joint and

Severally

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-09-cv-04895

District Judge: The Honorable

Nitza I. Quiñones Alejandro

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

April 13, 2016

Before: AMBRO, SMITH, and KRAUSE,

Circuit Judges

(Filed: June 17, 2016)

Brian M. Puricelli, Esq.

Law Office of Brian Puricelli

2721 Pickertown Road

Warrington, PA 18976

Counsel for Appellant

Carol A. VanderWoude, Esq.

Marshall Dennehey Warner Coleman & Goggin

18th Floor

2000 Market Street

Suite 2300

Philadelphia, PA 19103

Counsel for Appellee

_____________________

OPINION

_____________________

SMITH, Circuit Judge.

2

The key question in this case is not an easy one.

We must determine when dismissal for failure to comply

with Rule 10 of the Federal Rules of Appellate Procedure

is appropriate. In so doing, we also attempt to provide

more structure to a narrow area of law that has been

subject to confusion within this Circuit. The specific

question we are confronted with is whether a district

court’s decision to dismiss a party’s post-trial motion

because that party chose not to attempt to recreate the

trial record, despite being ordered to do so, was an abuse

of discretion. We hold that it was not. We also hold that

Appellant’s other claims of error lack merit. We will

therefore affirm.

I.

Plaintiff Reginald Roberts, a former employee of

Montgomery County, Pennsylvania, brought suit against

Montgomery County and a number of its employees1

alleging that he “suffered continual retaliation,

discrimination and humiliation” at work in violation of

1

In addition to the County, Defendants include Risa

Vetri Ferman; James Matthews; Joseph M. Hoeffel, III;

Bruce L. Castor, Jr.; Oscar P. Vance, Jr.; Samuel Gallen;

Stephen Forzato; Edmund Justice; Carolyn T. Carluccio;

Mark Bernstiel; and Toni Luter (collectively,

“Defendants”).

3

Title VII and his constitutional rights. Pl.’s Am. Compl.

3, ECF No. 4. The complaint, as amended in January

2010, contains five counts, two of which, counts II and

III, allege violations of 42 U.S.C. § 1983 for retaliation

against Roberts for his allegedly protected speech.

Specifically, in count II, Roberts alleges that he was

retaliated against by several County employees for

seeking heart and lung benefits, filing employment

discrimination charges, and testifying at a Fact Finding

Conference before the Pennsylvania Human Relations

Commission. Count III contains the same allegations but

seeks to hold the County liable directly, based on Monell

v. Department of Social Services of City of New York.

436 U.S. 658, 690 (1978) (“Local governing bodies,

therefore, can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where, as here,

the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and

promulgated by that body’s officers.” (footnote

omitted)). The case was originally assigned to Judge

Savage, who granted in part and denied in part

Defendants’ motion to dismiss on February 23, 2010. On

March 31, 2010, the parties then agreed to have the

matter referred in its entirety to a magistrate judge.

After briefing and oral argument, the magistrate

judge granted in part and denied in part Defendants’

motion for summary judgment, further limiting the

4

claims that would proceed to trial. Important for

purposes of this appeal, the magistrate judge denied in

part and granted in part summary judgment on counts II

and III of the amended complaint. However, after

alleging bias on the part of the magistrate judge, Roberts,

on October 6, 2011, moved to revoke his consent to

adjudication by a magistrate. Roberts’ petition to revoke

consent was granted on January 4, 2012, and his motion

for recusal based on alleged judicial bias was thus denied

as moot. This case was then reassigned to Judge Savage,

who scheduled an initial pre-trial conference and

prepared the case for trial.

On February 21, 2012, Judge Savage held a final

pre-trial conference at which he expressed concern about

whether Roberts would be able to make out a proper

Monell claim against the County based on the facts as

then clearly presented. He also questioned whether the

County could legally be held liable under Monell in light

of a recent Pennsylvania Supreme Court decision

regarding the division of authority between the County

and the Commonwealth. With that in mind, Judge

Savage asked the parties to submit supplemental briefing

on the effect of the recent change in Pennsylvania law.

As Roberts’ attorney noted, “[i]f the law is changed, that

would be a reason for reconsideration.” Tr. of Final

Pretrial Conference at 236, Roberts v. Ferman, No. 09-

4895 (February 21, 2012).

At the final pre-trial hearing held the morning

5

before voir dire, Judge Savage re-raised this issue and

entertained the parties’ arguments. Ultimately, after

considering the supplemental briefing, both sides’ oral

arguments, and the magistrate judge’s opinion, Judge

Savage granted summary judgment in favor of

Defendants on both counts II and III, reversing the earlier

denial by the magistrate judge. The case proceeded to

trial on the remaining claims. Six days later, the jury

rendered a verdict in favor of Defendants on all counts.

Roberts then filed a timely motion for a new trial

or in the alternative for judgment notwithstanding the

verdict. In this motion, Roberts made several general

allegations of error, focusing primarily on the conduct of

the trial judge. For example, Roberts claimed that “[t]he

Judge was not clear, consistent and/or fair when making

rulings. The Judge’s conduct towards the Plaintiff

showed contempt for the Plaintiff and disfavor toward

Plaintiff’s counsel.” Pl.’s Post Trial Mot. for New Trial

3, ECF No. 228. In addition, because Roberts again

raised allegations of bias—this time by Judge Savage—

the case was reassigned to Judge Quiñones. It was then

also discovered that four of the six days of the trial

transcript had unfortunately been lost. 2

2

Roberts on appeal notes that he was told by the Clerk’s

Office that the court reporter had become ill and this

caused what was at first believed to be just a delay in

6

Upon learning that the trial record was incomplete,

Judge Quiñones granted Roberts’ motion for

extraordinary relief and ordered the court reporting

company to produce the transcript for this case. Even

this order, however, ultimately failed to secure the

transcripts. Several months later, and after several more

unsuccessful attempts to obtain the trial transcripts, Judge

Quiñones denied Roberts’ second, nearly identical,

motion for extraordinary relief that again sought to force

the court reporting company to turn over the transcript.

In a footnote, Judge Quiñones concluded that granting

another such motion would be futile, as the court had

made numerous failed attempts to obtain the complete

trial transcript.

Judge Quiñones instead ordered the parties to

recreate the record in compliance with Federal Rule of

Appellate Procedure 10(c) so that she could rule on

Roberts’ post-trial motion. Roberts, however, chose not

to comply with this order, arguing that any attempt to do

so would be useless, as the parties would not be able to

agree on the contents of a 10(c) statement. Thus, over

nine months after ordering the parties to comply with

Rule 10(c), Judge Quiñones was still without a record

with which she could assess the merits of Roberts’ post-

trial motion. Concluding, therefore, that Roberts’ failure

obtaining the transcripts. Why the transcripts were never

ultimately obtained remains unclear.

7

to comply with Rule 10(c) constituted a failure to

prosecute, Judge Quiñones dismissed his motion.

Roberts appealed. 3

II.

Before addressing the substance of Roberts’

arguments, we must address an argument raised by

Defendants. They note that Roberts failed to include

even the available portions of the trial and pre-trial

transcripts in the record on appeal. This, Defendants

argue, demonstrates a “remarkable lack of diligence” by

Roberts and suggests that under Lehman Brothers

3

We have jurisdiction here under 28 U.S.C. § 1291, as

denial of Roberts’ post-judgment motion “ends the

litigation on the merits and leaves nothing for the court to

do but execute the judgment.” Catlin v. United States,

324 U.S. 229, 233 (1945). It is thus immediately

appealable. In addition, because interlocutory orders

such as partial grants of summary judgment merge with

the final judgment, they can be challenged on appeal.

Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239,

244 (3d Cir. 2013). Finally, “[w]e review dismissal of a

post-trial motion as a sanction for abuse of discretion,”

Knoll v. City of Allentown, 707 F.3d 406, 411 (3d Cir.

2013), and give plenary review to grants of summary

judgment, Anderson v. Wachovia Mortg. Corp., 621

F.3d 261, 267 (3d Cir. 2010).

8

Holdings, Inc. v. Gateway Funding Diversified Mortgage

Services, L.P., 785 F.3d 96 (3d Cir. 2015), Roberts has

forfeited his claims by failing to abide by Federal Rule of

Appellate Procedure 10(b). We disagree and take this

opportunity to clarify when forfeiture for failure to

comply with Rule 10 is appropriate.

In Lehman Brothers, appellant Gateway Funding

argued that the district court had erred by concluding that

it waived an argument in a telephonic oral argument

before the court. Gateway Funding then claimed that no

record of this proceeding existed, a statement which

turned out to be false. We went on to hold that

Gateway’s argument regarding the allegedly erroneous

finding of waiver had been forfeited under Rule 10(b).4

Because that case has been the subject of much

confusion, it merits some discussion here.

We begin by noting that in Lehman Brothers we

did not cavalierly hold that any failure to comply with

Rule 10(b) would result in forfeiture. Instead, we

4

Rule 10(b) states in relevant part that “[i]f the appellant

intends to urge on appeal that a finding or conclusion is

unsupported by the evidence or is contrary to the

evidence, the appellant must include in the record a

transcript of all evidence relevant to that finding or

conclusion.” Fed. R. App. P. 10(b)(2).

9

carefully considered a host of factors, including “whether

the defaulting party’s action is willful or merely

inadvertent, whether a lesser sanction can bring about

compliance and the degree of prejudice the opposing

party has suffered because of the default.” Id. at 101. In

so doing, we noted first that Gateway specifically argued

on appeal that no record existed of the district court’s

telephonic oral argument. This contention was proven

wrong. We thus expressed our concern that Gateway’s

failure to provide a transcript of the telephonic oral

argument, a clear violation of Rule 10(b), “at best shows

a remarkable lack of diligence and at worst indicates an

intent to deceive this Court.” Id. We were also

unimpressed by Gateway’s “weak post hoc justification”

for its failure to comply with Rule 10(b). Id. We next

took pains to emphasize throughout that this sanction was

“not favored,” “unusual,” and “should be sparingly

used.” Id. (internal citations and quotation marks

omitted). Finally, we explained that even if we

considered Gateway’s argument on the merits, we were

unlikely to overturn the district court’s ruling both

because we were reviewing for abuse of discretion and

because the transcript did not support Gateway’s

contentions. Id. at 101 n.2.

The takeaway, then, from Lehman Brothers should

be clear: Gateway made an affirmative and serious

misstatement in its brief before this Court when it stated

that no record of the telephonic oral argument existed.

10

This, we concluded, evinced either an intent to deceive

the Court or a “remarkable lack of diligence.” Id. at 101.

Even so, that alone was insufficient to warrant forfeiture,

because we went on to consider Gateway’s post hoc

explanation for its failure. Only upon finding Gateway’s

explanation lacking did we conclude that forfeiture was

an appropriate sanction.

We are not confronted with such a situation here.

There is no allegation that Roberts misrepresented the

existence or non-existence of the trial transcript or that

the explanation for his omission was a disingenuous post

hoc rationalization. Thus, the argument that Roberts

showed a “remarkable lack of diligence” here, just as

Gateway did in Lehman Brothers, is misplaced. Roberts

was derelict in preparing the record for appeal—he

certainly should have included the parts of the trial and

pre-trial transcripts that were a part of the record—but

this failure is simply not comparable to the serious

concerns we raised in Lehman Brothers. We therefore

conclude that Roberts’ failure to comply with Rule 10(b)

does not warrant forfeiture of his claims on appeal.

III.

We next address whether it was an abuse of

discretion for the District Court to dismiss Roberts’ post-

trial motion because it concluded that he failed to

prosecute his case. As we have held on multiple

occasions, dismissal for failure to prosecute “must be a

11

sanction of last, not first, resort.” Knoll v. City of

Allentown, 707 F.3d 406, 411 (3d Cir. 2013). That being

said, we are also well aware that “[t]he power to dismiss

for failure to prosecute . . . rests in the discretion of the

trial court and is part of its inherent authority to prevent

undue delays in the disposition of pending cases and to

avoid congestion in its docket.” Hewlett v. Davis, 844

F.2d 109, 114 (3d Cir. 1988). To that end, where a

plaintiff’s actions amount to the willful refusal to

prosecute or blatant failure to comply with a district court

order, dismissal for failure to prosecute is appropriate.

See Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir.

1994); Guyer v. Beard, 907 F.2d 1424, 1429-30 (3d Cir.

1990).5

Turning to the facts of this case, the District Court

on September 29, 2014, ordered the parties to recreate a

trial record according to Federal Rule of Appellate

Procedure 10(c) because the trial transcripts had not and

5

Normally, before a district court may sua sponte

dismiss a motion for failure to prosecute, it must consider

the six factors outlined in Poulis v. State Farm Fire and

Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984), but the

Poulis factors do not apply to post-trial motions. Knoll,

707 F.3d at 409-10 (“[A] district court need not engage in

a Poulis analysis when it dismisses a post-trial motion for

noncompliance with procedural rules or court orders.”).

12

could not be recovered. 6 As laid out in Rule 10(c), “[i]f

the transcript of a hearing or trial is unavailable, the

appellant may prepare a statement of the evidence or

proceedings from the best available means, including the

appellant’s recollection.” Fed. R. App. P. 10(c). This

statement is then to be “served on the appellee, who may

serve objections or proposed amendments within 14 days

after being served.” Id. Finally, in the event of any

disagreement, the statement and objections or

amendments “must then be submitted to the district court

for settlement and approval.” Id.

Nine months after being ordered to comply with

Rule 10(c), Roberts had not submitted a proposed

statement to Defendants. Indeed, Roberts’ only response

when he was ordered to explain his failure to comply

with Rule 10(c) was that “it was agreed by counsel for

the Parties . . . that neither side would agree [to] the

other’s recreation of the trial events, so the effort [to

comply with Rule 10(c)] would be futile.” Pl.’s Opp’n

Resp. to Def.’s Notice to Dismiss 4, ECF No. 264.

Defendants vigorously contest this alleged “agreement.”

Roberts then goes on to assert that there is “no such court

rule” that allowed the District Court to order the parties

6

Recreating the record was particularly important here

because Judge Quiñones had not presided over the trial

and thus could not otherwise have meaningfully

considered the merits of Roberts’ post-trial motion.

13

to attempt to recreate the record, and further suggests that

Judge Quiñones was biased7 against him because “the

defendants were also ordered to present a recreated

record and they also did not present a recreated record,

yet nothing is said of this by the district court.”

Appellant’s Br. 16 n.1.

Roberts’ counsel should take the time to read Rule

10(c). He would then discover “such [a] court rule.”

Indeed, it both provides a specific mechanism by which

the parties can have their dispute over the contents of the

trial court record resolved, and clearly places the

responsibility for initially creating the record on the

appellant. As a Federal Rule of Appellate Procedure, Rule

10(c) is typically invoked for creating a record for meaningful

review on appeal, but district courts have used Rule 10(c) as a

guide when, as here, the district court itself needs a

reconstructed record in order to rule on the dispute before it.

E.g., Sprint Spectrum L.P. v. Zoning Bd. of Adjustment, 21 F.

Supp. 3d 381, 382 n.1 (D.N.J. 2014), aff’d, 606 F. App’x 669

(3d Cir. 2015).

This brings us to the heart of the dispute: whether

7

Given that Roberts ultimately alleged or suggested bias

on the part of three different and very able Judges in a

single case, we are wary about giving any credit to these

allegations. That said, there is no need to assess these

claims for the reasons discussed infra.

14

the District Court abused its discretion in dismissing

Roberts’ post-trial motion for failure to prosecute, which

was a direct result of his failure to comply with the

District Court’s directive to file a reconstructed record

per the process outlined in Rule 10(c). Roberts’ blatant

refusal to comply with the District Court’s September 29,

2014, Order amounts to a willful refusal to move his own

post-trial motion forward, which, per Spain and Guyer,

places the District Court’s decision to dismiss for failure

to prosecute well within its discretion. We will thus

affirm the District Court on that basis. 8

8

We have also consistently affirmed dismissals for

failure to prosecute when a plaintiff fails to comply with

a Local Rule requiring him to supply the district court

with the relevant record. See, e.g., Knoll, 707 F.3d at

410-11; Hewlett, 844 F.2d at 114-15; see also E.D. Pa.

Local R. Civ. P. 7.1(e) (“Within fourteen (14) days after

filing any post-trial motion, the movant shall either (a)

order a transcript of the trial by a writing delivered to the

Court Reporter Supervisor, or (b) file a verified motion

showing good cause to be excused from this requirement.

Unless a transcript is thus ordered, or the movant excused

from ordering a transcript, the post-trial motion may be

dismissed for lack of prosecution.”). Here, two-thirds of

the transcripts were missing, making these past cases

hinging on the Local Rule not directly on point, but the

lesson from those cases remains instructive and

15

IV.

Because we conclude the District Court did not err

in dismissing Roberts’ post-trial motion on account of his

failing to even attempt to comply with the District

Court’s directive to provide a recreated trial transcript,

we need not determine whether a new trial is actually

warranted. Even if we were to entertain that question,

however, Roberts’ failure to recreate the record pursuant

to Rule 10(c) would also foreclose review of the merits

of his appeal by our Court.

Courts of appeals have consistently held that when

an appellant chooses not to avail him or herself of the

procedure available in Rule 10(c) for recreating the trial

record, he or she cannot then claim on appeal that the

loss of the trial records, without more, necessitates a new

trial. This is so primarily because the appellant is

responsible for ensuring that the record is sufficiently

complete on appeal. Thus, in asking us to grant him a

new trial, Roberts must have at least attempted to

recreate the record in compliance with Rule 10(c)—an

buttresses our conclusion that the District Court’s

insistence on a Rule 10(c) record was appropriate: when

a plaintiff fails to provide the district court with the

materials necessary to resolve the case, dismissal for

failure to prosecute is an appropriate exercise of the

district court’s discretion.

16

effort he has failed to undertake in the slightest. See,

e.g., United States v. Sierra, 981 F.2d 123, 127 (3d Cir.

1992) (“[Appellants] could have sought to reconstruct the

record in that respect by conference with trial counsel for

submission to the district court. In the absence of that

minimal effort . . . we see no reason to direct a remand

for the purpose of reconstruction of the unrecorded

portions of the record.”); United States v. Kelly, 535 F.3d

1229, 1243 (10th Cir. 2008) (“Furthermore, even if Mr.

Kelly were able to articulate an adequate claim of

prejudice from the purported omissions in the record, that

claim would be significantly undermined (if not defeated)

by Mr. Kelly’s failure to avail himself of established

procedures—specifically, the procedures of Fed. R. App.

P. 10(c)—for reconstructing the gaps in the record.”);

Hawley v. City of Cleveland, 24 F.3d 814, 821 (6th Cir.

1994) (“[P]laintiffs cannot justify their failure to invoke

Rule 10(c) merely by asserting that to do so would have

led to disputes with opposing counsel.”); United States v.

Nolan, 910 F.2d 1553, 1560 (7th Cir. 1990) (“We

recognize that sometimes trial participants’ recollections

may be too vague, and notes and other trial materials too

sketchy, to make Rule 10(c) an adequate device for

reconstructing a record. . . . Still, given Rule 10(c), we

agree with the Sixth Circuit that it is not appropriate to

reverse a district court for failing to [record the court

proceedings,] ‘[a]bsent a showing by counsel on appeal

of a reasonable but unsuccessful effort to determine the

substance of the off-the-record remarks.’” (internal

17

citation omitted)); Herndon v. City of Massillon, 638

F.2d 963, 965 (6th Cir. 1981) (“The clear lesson of these

cases is that a party may not seek a new trial simply

because matters occurring in the district court are not

reflected in the transcript. Rather, that party must at least

attempt to cure the defect by reconstructing the record as

provided by Fed. R. App. Pro. 10(c).”); Murphy v. St.

Paul Fire & Marine Ins. Co., 314 F.2d 30, 31-32 (5th

Cir. 1963) (“The appellants have not availed themselves

of the provisions of [an analogue to Rule 10(c)], a

procedure which might well have enabled them to bring a

sufficient record before us. In the absence of compliance

with the Rules, the charges urged to be erroneous are not

in the record and not before us.”). We therefore hold that

it was not an abuse of discretion for Judge Quiñones to

deny Roberts’ post-trial motion. By refusing to even

attempt to comply with Judge Quiñones order, Roberts

essentially prevented any meaningful review of his

claims.

This, however, is not to say that when a party’s

attempted compliance with Rule 10(c) yields an

insufficient record, post-trial or appellate review is

limited to that insufficient record. As we have noted

before, a recreated trial record “can be satisfactory”

because “‘often, the reconstructed record will enable the

appellate court effectively to review the relevant issues.’”

United States v. Sussman, 709 F.3d 155, 171 (3d Cir.

2013) (quoting Sierra, 981 F.2d at 126). But in Sussman,

18

we specifically left the door open for an appellant to

argue that the recreated record was insufficient to provide

meaningful review. We explained that, after recreating

the record according to Rule 10(c), in order “[t]o qualify

for a new trial, . . . Sussman must make ‘a specific

showing of prejudice’ from the absence of the

transcripts.” Id. at 170 (quoting Sierra, 981 F.2d at 125

(“[T]he mere absence of the sidebar transcripts does not

signify prejudice.”)); see also United States v. Renton,

700 F.2d 154, 157 (5th Cir. 1983) (“[A]ppellant must

show that failure to record and preserve the specific

portion of the trial proceedings visits a hardship upon

him and prejudices his appeal.”). Without any recreated

trial record, however, we cannot even begin to assess

whether the requisite prejudice existed here to warrant

granting Roberts a new trial.

We are thus satisfied that our holding in this case

leaves open avenues for appellants to seek appropriate

relief if they can show that they were prejudiced by the

loss of part or all of the record below. Such an appellant

must comply with the dictates of Rule 10(c) and then

present specific reasons why his or her attempt to re-

create the record was insufficient. This would allow us

on appeal (or the district court when considering a post-

trial motion) to properly assess whether we could in fact

grant meaningful review of the appellant’s claims

without the actual trial transcript available to us. See,

e.g., Bergerco, U.S.A. v. Shipping Corp. of India, Ltd.,

19

896 F.2d 1210, 1215 (9th Cir. 1990) (holding that despite

compliance with Rule 10(c), because “we cannot

meaningfully review the district court’s findings [without

the benefit of the missing trial transcripts,] . . . [t]his is

one of the rare cases where a retrial is appropriate”).

Roberts has failed to provide us with the tools to make

such an assessment and thus cannot prevail in his quest to

overturn the District Court’s dismissal of his post-trial

motion and obtain a new trial.

V.

We next turn to the second issue Roberts raises on

appeal: whether Judge Savage erred in granting summary

judgment in favor of Defendants on counts II and III.9

Roberts raises two claims of error, neither of which has

merit. First, Roberts claims that it was error for Judge

Savage to “reconsider” both counts because the

9

Because the District Court’s denial of Roberts’ post-

trial motion was a final decision within the meaning of

28 U.S.C. § 1291, “[u]nder the ‘merger rule,’ prior

interlocutory orders . . . merge with the final judgment in

a case, and the interlocutory orders (to the extent that

they affect the final judgment) may be reviewed on

appeal from the final order.” Camesi, 729 F.3d at 244-45

(quoting In re Westinghouse Sec. Litig., 90 F.3d 696, 706

(3d Cir. 1996)).

20

magistrate judge had already entertained a summary

judgment motion and denied summary judgment on the

same counts. This argument fails for multiple reasons,

not the least of which is that Roberts sought to revoke his

consent to have the case heard by the magistrate judge on

October 6, 2011, and his request was granted on January

4, 2012. Thus, allegations that Judge Savage overstepped

his authority are baseless.

In addition, the bald claim that once a motion for

summary judgment has been ruled on, the District Court

loses the “statutory authority” to later grant summary

judgment is simply erroneous. Appellant’s Br. 27. As

we have consistently held, when “(1) new evidence is

available; (2) a supervening new law has been

announced; or (3) the earlier decision was clearly

erroneous and would create manifest injustice,” the law

of the case doctrine does not apply and the court is free to

reconsider an earlier denial of summary judgment. Pub.

Interest Research Grp. of New Jersey, Inc. v. Magnesium

Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997). We

also have held that “the law of the case doctrine does not

limit the power of trial judges to reconsider their prior

decisions,” but have noted that when a court does so, it

must explain on the record why it is doing so and “take

appropriate steps so that the parties are not prejudiced by

reliance on the prior ruling.” Williams v. Runyon, 130

F.3d 568, 573 (3d Cir. 1997); see also Krueger Assocs.,

Inc. v. Am. Dist. Tel. Co. of Pa., 247 F.3d 61, 65 (3d Cir.

21

2001) (“Under the law of the case doctrine the district

court’s denial of ADT’s initial summary judgment

motion did not create any bar to the court’s later

reconsideration of the renewed motion.”); Preaseau v.

Prudential Ins. Co. of Am., 591 F.2d 74, 79-80 (9th Cir.

1979) (“This practice reflects the rule that an order

denying a motion for summary judgment is generally

interlocutory and subject to reconsideration by the court

at any time.” (internal citations omitted)).

In this case, we conclude that Judge Savage did not

err in reconsidering the magistrate judge’s prior denial of

summary judgment. Not only were the magistrate

judge’s prior rulings in this case likely void, 10 but the

record also makes it clear that in both instances Judge

Savage was presented with changed circumstances that

the magistrate judge was unaware of at the time he ruled

on Roberts’ claims. Regarding both counts, the

10

See United States v. Muhammad, 165 F.3d 327, 330

(5th Cir. 1999) (concluding that lack of consent to

disposition by a magistrate judge would strip the

magistrate judge of jurisdiction over the case); 32 Am.

Jur. 2d Federal Courts § 140 (“Once the magistrate judge

allows the withdrawal of consent, it is as if the consent

had never been given, and, accordingly, the magistrate

judge lacks the power to try the case and enter a

judgment in it.”).

22

magistrate judge did not have the benefit of the Supreme

Court’s decision in Borough of Duryea, Pa. v. Guarnieri,

564 U.S. 379 (2011), since it was decided within days of

the denial of summary judgment. This case, Judge

Savage concluded, “absolutely . . . control[led]” both of

Roberts’ First Amendment retaliation claims. Tr. of Trial

– Day 1 at 17, Roberts v. Ferman, No. 09-4895 (February

29, 2012). Thus, reconsideration was not procedurally

erroneous. In addition, an intervening decision from the

Pennsylvania Supreme Court cast further doubt on the

viability of count III, specifically calling into doubt

Roberts’ ability to hold the County liable for the actions

of certain Defendants since their employment status was

now unclear. For this reason, Judge Savage ordered the

parties to submit supplemental briefing on the effect of

this case. As Roberts’ attorney noted, “[i]f the law is

changed, that would be a reason for reconsideration.” Tr.

of Final Pretrial Conference at 236, Roberts v. Ferman,

No. 09-4895 (February 21, 2012). Accordingly, Judge

Savage’s reconsideration of summary judgment on both

counts was procedurally proper. Roberts’ procedural

objection that Judge Savage simply could not reconsider

the magistrate judge’s partial denial of summary

judgment is, therefore, without merit.

Finally, we also reject Roberts’ claim that Judge

Savage could not “sua sponte” grant summary judgment

since there was no motion filed by Defendants. As we

have held, “authority has developed to allow a court to

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grant summary judgment to a non-moving party” so long

as the court gives “notice that [it] is considering a sua

sponte summary judgment motion” and “provide[s] the

party with an opportunity to present relevant evidence in

opposition to that motion.” Chambers Dev. Co. v.

Passaic Cty. Utils. Auth., 62 F.3d 582, 584 n.5 (3d Cir.

1995); see also DL Res., Inc. v. FirstEnergy Sols. Corp.,

506 F.3d 209, 223 (3d Cir. 2007) (“District courts may

grant summary judgment sua sponte in appropriate

circumstances.”). Here, both of the above requirements

were met prior to the grant of summary judgment.

VI.

For the reasons discussed above, we will affirm

Judge Quiñones’ order denying Roberts’ post-trial

motion.

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