Brasher v. Allstate Indemnity Company
Filing
135
MEMORANDUM OPINION AND ORDER - For the reasons stated above, the court DENIES Mr. Brasher's motion for reconsideration and motion to re-open discovery. (Doc. 126 ). Signed by Judge Annemarie Carney Axon on 11/24/2020. (MEB2)
FILED
2020 Nov-24 PM 04:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DONALD BRASHER, individually }
and on behalf of all others similarly }
}
situated,
}
}
Plaintiff,
}
}
v.
}
}
ALLSTATE INDEMNITY
}
COMPANY,
}
}
Defendant.
Case No.: 4:18-cv-00576-ACA
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Donald Brasher’s motion for reconsideration and
motion to re-open discovery. (Doc. 126).
Mr. Brasher seeks reconsideration of the court’s August 12, 2020
memorandum opinion and order granting in part Defendant Allstate Indemnity
Company’s (“Allstate”) motion to exclude the opinion testimony of Chris Hatcher
and Jason Wells and denying Mr. Brasher’s motion for class certification. (See
Docs. 122, 123). Mr. Brasher also asks the court to re-open discovery to allow him
to obtain a report from Allstate’s vendor, Xactware, detailing the amount of labor
depreciation applied to the property damage claim estimates of the putative class
members.
Because there is no new evidence or the need to correct clear error or
manifest injustice, the court DENIES Mr. Brasher’s motion for reconsideration.
Because Mr. Brasher cannot demonstrate the requisite good cause to modify
the court’s scheduling order on class discovery, the court DENIES Mr. Brasher’s
motion to re-open discovery.
I.
BACKGROUND
Mr. Brasher filed this putative class action lawsuit, alleging that by
depreciating labor costs from the actual cash value of his property damage claim,
Allstate breached the terms of his insurance policy. (Doc. 1). After denying
Allstate’s motion to dismiss, the court entered a scheduling order governing class
discovery. (Doc. 30). The court set a December 13, 2019 deadline for all class
certification discovery and other various deadlines regarding a class certification
motion. (Doc. 55).
Mr. Brasher filed a motion for certification of a Rule 23(b)(3) class on his
breach of contract claim. (Doc. 64). The parties also filed a number of Daubert
and other evidentiary motions. (Docs. 72, 75, 78, 79, 82). After a hearing on the
motions, the court entered a memorandum opinion and order which among other
things, granted in part Allstate’s Daubert motion to exclude the opinion testimony
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of Mr. Brasher’s damages experts, Chris Hatcher and Jason Wells, and denied Mr.
Brasher’s motion for class certification. (Docs. 122, 123).
The court found that Mr. Hatcher’s opinions were not based on a reliable
methodology, and in turn, Mr. Wells’ opinion, which was based on Mr. Hatcher’s
unreliable opinion, also was inadmissible. (Doc. 123 at 13–19).
With respect to class certification, the court found that Mr. Brasher had not
met his burden of establishing that common issues predominate over individual
questions as required by Federal Rule of Civil Procedure 23(b)(3). The court
explained that to the extent some common issues might exist with respect to
liability, individual questions concerning damages and Allstate’s affirmative
defenses preclude class certification. (Doc. 123 at 24–35).
II.
DISCUSSION
1.
Motion for Reconsideration
Mr. Brasher seeks reconsideration of the court’s order granting in part
Allstate’s motion to exclude the opinion testimony of Mr. Hatcher and Mr. Wells
and denying Mr. Brasher’s motion for class certification.
“[R]econsideration of an order is an extraordinary remedy and is employed
sparingly.” Rueter v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 440 F. Supp. 2d
1256, 1267–68 (N.D. Ala. 2006). Motions for reconsideration should not be a
“knee-jerk reaction to an adverse ruling.” Id. (quotation marks omitted). Neither
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should a motion for reconsideration be used to “relitigate old matters, raise
argument or present evidence that could have been raised prior to the entry of
judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763
(11th Cir. 2005). Rather, reconsideration is available only “if there is newlydiscovered evidence or manifest errors of law or fact.” Metlife Life & Annuity Co.
of Conn. v. Akpele, 886 F.3d 998, 1008 (11th Cir. 2018).
Mr. Brasher argues that reconsideration is appropriate because there is
confirmed availability of new evidence and there is a need to correct clear error or
manifest injustice. The court considers each argument in turn.
A.
New Evidence
Mr. Brasher claims that confirmed availability of new evidence warrants
reconsideration. Mr. Brasher argues that during class discovery, Allstate mislead
him about the ability to isolate labor depreciation from the other non-material
depreciation figures on class estimates. (Doc. 126-1 at 2–3). Mr. Brasher contends
that he has now learned that such data is available based on filings in a case in
another district that involves similar claims but different parties. (Id.).
The court takes seriously and scrutinizes any allegation of party or attorney
misconduct or misrepresentation. The court has carefully reviewed the pieces of
evidence that Mr. Brasher contends support his position that Allstate
misrepresented the ability to obtain a report isolating the amount of labor
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depreciation applied to the class estimates. (See doc. 126-1 at 5–12). On the
record before it, the court is satisfied that Allstate did not intentionally mislead Mr.
Brasher. To the contrary, during discovery, Allstate explained that although it does
not isolate the amount of labor depreciation on given estimates, Mr. Brasher could
obtain the information from Xactware. (Doc. 126-5 at 2; Doc. 130-1 at 2).
Even if Allstate had misrepresented the availability of the specific amount of
labor depreciation applied to every class estimate, Mr. Brasher knew about
Xactware’s ability to provide such information within the class discovery period
and well before the court ruled on the class certification and related motions.
Therefore, the evidence is not “newly-discovered” for purposes of a Rule 59
motion.
Allstate deposed Mr. Hatcher on November 22, 2019, three weeks before the
close of class discovery. (See Doc. 119-24 at 1). During his deposition, Mr.
Hatcher testified unequivocally that Xactware could “run a report for us” showing
“only labor depreciation” for a select group of files.
(Doc. 119-24 at 25).
Assuming the first time that Mr. Brasher learned that such a report was available
from Xactware was during his expert’s deposition under oath, Mr. Brasher knew
that the information existed weeks before the close of class discovery. Yet, neither
Mr. Hatcher nor Mr. Brasher asked Xactware for the report at that point in time.
Because the evidence that Mr. Brasher wishes to present to the court existed before
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and while the class certification motion was pending, the information is not
“newly-discovered,” and it does not serve as a basis for reconsideration. See M.G.
v. St. Lucie Cnty. Sch. Bd., 741 F.3d 1260, 1262 (11th Cir. 2014) (affirming district
court’s denial of motion to reconsider based on new evidence because the moving
party failed to establish that it could not have discovered the evidence earlier with
“reasonable diligence”); Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir.
1997) (“[W]here a party attempts to introduce previously unsubmitted evidence on
a motion to reconsider, the court should not grant the motion absent some showing
that the evidence was not available during the pendency of the motion.”).
B.
Clear Error or Manifest Injustice
Next, Mr. Brasher argues that reconsideration is warranted to correct clear
error or manifest injustice. (Doc. 126-1 at 12–22).
First, Mr. Brasher contends that the plaintiff class suffered a manifest
injustice because the court denied class certification largely upon Allstate’s
misrepresentation that labor depreciation could not be separated from non-material
depreciation. (Doc. 126-1 at 12–13). As an initial matter, the court disagrees with
Mr. Brasher’s characterization that the court “largely” denied class certification
because he failed to provide a damages model that accounted for labor depreciation
figures only. That was just one of several reasons why the court found that Mr.
Brasher failed to establish predominance. Nevertheless, as explained above, the
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record before the court does not demonstrate that Allstate mislead Mr. Brasher
about the ability to isolate the amount of labor depreciation applied to the class
estimates. And in any event, Mr. Brasher himself knew about Xactware’s ability
to provide the information during the pendency of the class certification motion but
chose not to ask Xactware for the data. Therefore, Mr. Brasher has not shown a
manifest injustice due to any misrepresentation about the availability of certain
evidence.
Second, Mr. Brasher claims that reconsideration is required to correct clear
error because: (1) the court should not have excluded the opinions of his damages
experts; (2) the court should not have denied class certification on the basis of
individualized damages; and (5) the court should not have denied class certification
on the basis of individual issues regarding Allstate’s affirmative defenses. (Doc.
126 at 13–18, 20–22). At their core, these arguments are an expression of Mr.
Brasher’s disagreement with the court’s adverse rulings, which is not a proper
basis for reconsideration. Mr. Brasher essentially asks the court to re-examine the
merits of the Daubert and predominance issues, and the court will not engage in
such an improper exercise. To the extent Mr. Brasher challenges the court’s
reasoning with respect to the exclusion of his experts or the court’s finding that he
failed to meet his burden of showing that class certification was proper, Mr.
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Brasher’s remedy is to appeal. Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d
1327, 1344 (11th Cir. 2010).
Third, Mr. Brasher claims that reconsideration is appropriate because the
court failed to acknowledge a handful of cases that he cited in support of his
motion for class certification. (See Doc. 126-1 at 18–20).
All of the cases that
Mr. Brasher complains that the court did not address in its class certification
opinion are non-binding decisions from other Circuits. (Id. at 19). The court is
under no obligation to cite or distinguish such authority, much less follow it. And
the court’s failure to do so does not constitute clear error or manifest injustice.
Because no clear error or manifest justice exists, the court will not
reconsider its memorandum opinion and order granting in part Allstate’s motion to
exclude the opinion testimony of Mr. Hatcher and Mr. Wells and denying class
certification.
2.
Motion to Reopen Discovery
Mr. Brasher moves to reopen discovery to obtain a report from Xactware
that isolates the amount of labor depreciation applied to the class claims and/or to
depose an Xactware employee with knowledge of the existence of such data.
(Doc. 126-1 at 23). Because Mr. Brasher seeks to reopen the class discovery
period after the deadline established in the scheduling order, Mr. Brasher must
show “good cause” and receive the court’s consent. See Fed. R. Civ. P. 6 (b)(1)
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(“When an act may or must be done within a specified time, the court may, for
good cause, extend the time.”); Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge’s consent.”). To establish good
cause, a party seeking an extension of the court’s scheduling order must show that
he could not meet the schedule despite his diligence. Sosa v. Airprint Sys., Inc.,
133 F.3d 1417, 1418 (11th Cir. 1998).
Mr. Brasher claims that the court should re-open discovery because Allstate
misrepresented “the ability to obtain data breaking down the amount of nonmaterial depreciation,” and therefore, although Mr. Brasher requested the
information, it was “was never produced” in discovery.
(Doc. 126-1 at 23).
Setting aside whether Allstate misled Mr. Brasher about the existence of data
isolating the amount of labor depreciation for the class claims, Mr. Brasher has not
shown that he was unable to obtain the information despite his diligence because
he knew before the close of class discovery that Xactware presumably could
produce a report isolating the amount of labor depreciation applied to each class
claim.
Again, as stated above, at the very latest, Mr. Brasher knew Xactware could
produce the very report he now seeks three weeks before the close of class
discovery. Once he learned that Xactware could provide the information, Mr.
Brasher could have subpoenaed Xactware for the very report that Mr. Hatcher
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claimed it could provide. But he did not do so. To the extent Mr. Brasher needed
additional time to comply with Federal Rule of Civil Procedure 45’s subpoena
requirements, the time to seek a brief extension of the discovery deadline was
before the deadline expired, not 10 months later after receiving an unfavorable
ruling on class certification.
Accordingly, assuming the report Mr. Brasher claims Xactware can produce
does in fact exist, Mr. Brasher cannot show that despite his diligence, he was
unable to obtain it within the class discovery period or that he was unable to move
to extend the class discovery period for that purpose prior to the expiration of the
discovery deadline.
III.
CONCLUSION
The court DENIES Mr. Brasher’s motion for reconsideration and motion to
re-open discovery. (Doc. 126).
DONE and ORDERED this November 24, 2020.
_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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