Harleysville Mutual Insurance Company v. Dapper, LLC

Filing 34

ORDER denying 33 Motion to Alter of Amend pursuant to FRCP 59(e), as further set out in order. Signed by Honorable Terry F. Moorer on 8/3/2010. (wcl, )

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Harleysville Mutual Insurance Company v. Dapper, LLC (CONSENT) Doc. 34 IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION H A R L E Y S V IL L E MUTUAL IN S U R A N C E COMPANY P la in tif f , v. D A P P E R , LLC, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) Case No. 2:09-cv-794-TFM [w o] ORDER P e n d in g before the Court is the Motion of Defendant, Dapper, LLC, to Alter or Amend (D o c . 33, filed 8/2/10) pursuant to FED. R. CIV. P. 59(e). For the reasons stated below, the m o tio n is DENIED. " In the interests of finality and conservation of scarce judicial resources, re c o n s id e ra tio n of an order is an extraordinary remedy and is employed sparingly." Gougler v . Sirius Products, Inc., 370 F. Supp.2d 1185, 1189 (S.D. Ala. 2005); see also Spellman v. H a le y , 2004 WL 866837, *2 (M.D. Ala. 2002) ("litigants should not use motions to re c o n s id e r as a knee-jerk reaction to an adverse ruling"). As a general rule, "[a] motion to re c o n s id e r is only available when a party presents the court with evidence of an intervening c h a n g e in controlling law, the availability of new evidence, or the need to correct clear error o r manifest injustice." Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1 3 5 0 , 1355 (M.D. Ala. 2003); see also United States v. Marion, 562 F.3d 1330, 1335 (11th Page 1 of 3 Dockets.Justia.com Cir. 2009) (citation omitted) ("The only grounds for granting a Rule 59 motion are n e w ly-d is c o v e re d evidence or manifest errors of law or fact."). It is not a vehicle to " re litig a te old matters, or to raise arguments or present evidence that could have been raised p rio r to the entry of judgment." Exxon Shipping Co. v. Baker, 128 S.Ct. 2605, 2617 n. 5 (2 0 0 8 ); see also Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) ("A motion for re c o n s id e ra tio n cannot be used to relitigate old matters, raise argument or present evidence th a t could have been raised prior to the entry of judgment."). A s to the specifics of Dapper's motion, Dapper presents the same arguments the Court a lre a d y considered. As such, the Court need not re-hash its reasoning. Gougler v. Sirius P ro d u c ts , Inc., 370 F. Supp.2d 1185, 1189 n. 1 ("motions to reconsider are not a platform to re litig a te arguments previously considered and rejected"). As for the issue on the duty to in d e m n if y, Dapper cites to a previous opinion issued by this Court in Colony Ins. Co. v. F lo y d 's Prof. Tree Serv., 2008 WL 2705123 (M.D. Ala. 2008). However, in Colony In s u r a n c e , the issues presented before the Court were different in that the insured sought d is m is s a l of the declaratory judgment action while the underlying action was pending. The C o u rt specifically denied the motion to dismiss and instead determined that the insurance c o m p a n y was entitled to a decree stating whether or not the insurance company must defend th e insured. In the case between Harleysville and Dapper, the action was at the summary ju d g m e n t stage. The Court made the legal determination that there was no duty to defend a n d since the duty to defend is broader than the duty to indemnify, it is "axiomatic that if Page 2 of 3 there is no duty to defend then there is also no duty to indemnify." Again, the Court need not re p e a t its reasoning. For all the foregoing reasons, the motion to alter or amend the judgment is denied. DONE this 3rd day of August, 2010. /s/ Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE Page 3 of 3

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