Schambeau Properties, LP v. Waffle House, Inc. et al
ORDER denying 84 Motion to Alter, Vacate or Set Aside. The 79 Motion to Retax is moot. The 81 Amended Motion to Retax is granted, and its request for costs pursuant to the 80 Bill of Costs is granted in part and denied in part. Costs are hereby taxed against plaintiff and in favor of ASI in the total amount of$4,602.81. Signed by Chief Judge William H. Steele on 1/26/12. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SCHAMBEAU PROPERTIES, LP,
WAFFLE HOUSE, INC., et al.,
CIVIL ACTION 11-0029-WS-B
This matter comes before the Court on the Bill of Costs (doc. 80) and Amended Motion
to Re-Tax Costs (doc. 81) filed by defendant Alabama Sound Investments, Inc. (“ASI”), as well
as on plaintiff’s Motion to Alter, Vacate or Set Aside Judgment (doc. 84).1 All of these filings
are now ripe for disposition.
The Summary Judgment Ruling.
Plaintiff, Schambeau Properties, LP, filed suit against ASI and several other defendants,
alleging in the pleadings that beginning in January 2008 the defendants had constructed a Waffle
House restaurant adjacent to Schambeau’s property in a manner that caused surface waters to be
channelized, collected, diverted and directed onto plaintiff’s property. Based on ASI’s alleged
role in constructing and installing sidewalks, pavement, asphalt and roofs of the Waffle House
facility, Schambeau brought claims against it on theories of continuing trespass, continuing
nuisance, negligence and wantonness.
At the close of discovery, ASI moved for summary judgment. After careful
consideration of the parties’ briefs, the undersigned entered an Order (doc. 78) on December 30,
2011, granting ASI’s Motion for Summary Judgment, and dismissing all of Schambeau’s claims
against that defendant with prejudice. The December 30 Order specified four independent
ASI’s initial Motion to Re-Tax Costs (doc. 79) was superseded by the amended
iteration filed later on the same day, and is therefore moot.
grounds for the ruling, to-wit: (i) undisputed record evidence showed that ASI had nothing
whatsoever to do with the construction of the Waffle House restaurant next door to plaintiff’s
property, in that ASI held no ownership interest and played no role in the construction or
development of any facility there during the 2008 to 2010 time period;2 (ii) plaintiff’s negligence
and wantonness claims were plainly time-barred, inasmuch as the record was devoid of evidence
that ASI did or failed to do anything with respect to its property in the two- or six-year period
preceding the filing of the complaint; (iii) the record did not show any change in the natural flow
of the surface waters at that site, as required for liability to attach under Alabama common law
on a nuisance or trespass theory; and (iv) plaintiff’s evidence was inconsistent with the
“substantial damage” needed for liability under Alabama law, inasmuch as Schambeau admitted
it had experienced no drainage problems on its property for 10 years after ASI’s construction
activities were completed.
In the wake of the December 30 Order, the undersigned entered Judgment (doc. 83) in
ASI’s favor on January 6, 2012. Three days later, plaintiff filed its “Motion to Alter, Vacate or
Set Aside that Certain Order/Judgment Granting Summary Judgment” (doc. 84).
Plaintiff’s Motion to Alter, Vacate or Set Aside.
Plaintiff’s Motion eschews any discussion of the legal authority governing vacatur of the
Order and Judgment, much less any recognition of the stringent legal standard for
reconsideration of a federal court’s decision. Whatever the reasons for that omission may be, the
fact remains that “[i]n the interests of finality and conservation of scarce judicial resources,
reconsideration of an order is an extraordinary remedy and is employed sparingly.” Longcrier v.
HL-A Co., 595 F. Supp.2d 1218, 1246 (S.D. Ala. 2008) (citations omitted). In that regard, the
Supreme Court has confirmed that motions to reconsider “may not be used to relitigate old
matters, or to raise arguments or present evidence that could have been raised prior to the entry
of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d
570 (2008) (citation omitted); see also Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir.
Insofar as Schambeau endeavored to use its summary judgment memorandum as
a vehicle for de facto amendment of its Complaint to state an entirely new and different factual
predicate for its claims against ASI (pertaining to construction and ownership of a Sonic
restaurant from 1999 through 2008), the December 30 Order explained that such efforts were
improper and impermissible under settled Eleventh Circuit precedent.
2010) (“A motion for reconsideration cannot be used to relitigate old matters, raise argument or
present evidence that could have been raised prior to the entry of judgment.”) (citation and
internal quotation marks omitted); Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir. 1997)
(“a motion to reconsider should not be used by the parties to set forth new theories of law”).
“Simply put, a party may move for reconsideration only when one of the following has occurred:
an intervening change in controlling law, the availability of new evidence, or the need to correct
clear error or prevent manifest injustice.” Longcrier, 595 F. Supp.2d at 1247 (citations and
internal punctuation omitted). Plaintiff neither identifies nor makes any showing that might
support the existence of any of these circumstances, as needed to revisit the December 30 Order
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
By all appearances, the Motion to Alter, Vacate or Set Aside was filed as a kneejerk
reaction to the December 30 Order based on plaintiff’s disagreement with the reasoning and
conclusions of same. This is not a valid reason for filing such a motion. See, e.g., Garrett v.
Stanton, 2010 WL 320492, *2 (S.D. Ala. Jan. 18, 2010) (“Far too often, litigants operate under
the flawed assumption that any adverse ruling on a dispositive motion confers upon them license
to move for reconsideration … as a matter of course, and to utilize that motion as a platform to
criticize the judge’s reasoning, to relitigate issues that have already been decided, to champion
new arguments that could have been made before, and otherwise to attempt a ‘do-over’ to erase a
disappointing outcome. This is improper.”); Hughes v. Stryker Sales Corp., 2010 WL 2608957,
*2 (S.D. Ala. June 28, 2010) (rejecting notion that motions to reconsider “are appropriate
whenever the losing party thinks the District Court ‘got it wrong’”); Dyas v. City of Fairhope,
2009 WL 5062367, *3 (S.D. Ala. Dec. 23, 2009) (motions to reconsider “do not exist to permit
losing parties to prop up arguments previously made or to inject new ones, nor to provide
evidence or authority previously omitted”). Inasmuch as plaintiff has not conformed its
arguments to the very narrow parameters under which the extraordinary remedy of Rule 59(e)
relief may be available, the Motion to Alter, Vacate or Set Aside is due to be summarily denied.
Even if the Motion were properly considered on the merits, the Court is of the opinion
that plaintiff would not be entitled to relief from the December 30 Order. As an initial matter,
Schambeau has not addressed the Court’s ruling that ASI was entitled to summary judgment
because the factual predicate of all claims asserted in the Complaint (namely, that ASI had
developed or constructed a Waffle House restaurant in 2008 in a manner that redirected surface
water onto its property) was contradicted by the record facts that ASI had no involvement or
interest of any kind at any time in that Waffle House facility. Although Schambeau’s summary
judgment brief focused on ASI’s operation of a nearby Sonic restaurant, those facts do not
appear in the Complaint. As the December 30 Order explained, it is improper for a plaintiff to
utilize a summary judgment brief to amend its pleadings. This basis for the Court’s ruling was
developed in some detail. (See doc. 78, at 7-10 & n.14.) Because plaintiff has not challenged
(or, for that matter, even acknowledged) this independent ground for the December 30 Order’s
determination that ASI was entitled to summary judgment, the Motion to Alter, Vacate or Set
Aside cannot succeed.
Next, Schambeau rehashes previously-asserted arguments that it is “for the jury to
determine” whether ASI’s conduct amounts to a continuing nuisance or continuing trespass.
(Doc. 84, ¶¶ 6-7, 14.) The December 30 Order specifically considered, addressed and rejected
such arguments. (See doc. 78, at 10-14.) Repeating exact arguments that the district court has
already addressed is not a proper use of a Rule 59(e) Motion. See Longcrier, 595 F. Supp.2d at
1250 (“The Court will not indulge defendant’s procedurally improper request for a ‘do-over’ in
its Motion to Reconsider of arguments that were fully considered and rejected in the [underlying]
Order.”); Gipson v. Mattox, 511 F. Supp.2d 1182, 1185 (S.D. Ala. 2007) (“Nor may a party
properly utilize a motion to reconsider as a vehicle for rehashing arguments considered and
rejected in the underlying order.”). At any rate, none of these arguments have improved in the
retelling. As opined in the December 30 Order, whether “diversion or channelization … of
waters from the ASI properties” is a continuing nuisance or trespass is for the jury to determine
only if there are facts supporting reasonable inferences that (i) such diversion or channelization
actually occurred, and altered the status quo of the flow of water, and (ii) plaintiff’s property was
substantially damaged as a result. The December 30 Order explained that there was no evidence
of either. A jury question is not presented on plaintiff’s mere say-so, no matter how often it may
be repeated.3 While Schambeau insists that “issues of nuisance and trespass under Alabama law
As it did in briefing summary judgment, plaintiff relies in its Rule 59(e) Motion
on excerpts of the deposition of Aleta Greenspan and photographs that it contends show water
being directed onto plaintiff’s property. (Doc. 84, ¶¶ 3-4, 11-12.) But the December 30 Order
clearly and specifically explained why this “evidence” was insufficient. (See doc. 78, at 12-13
n.16.) Plaintiff does not address or acknowledge that reasoning, but instead ignores it and
are fact questions, as are the questions of damages” (doc. 84, at ¶ 10), and reiterates its view that
these are “classic issues of fact for the jury” (id. at ¶ 14), such “fact questions” are presented only
where the summary judgment record contains facts from which a reasonable fact finder could
find in plaintiff’s favor. The December 30 Order explained that this record was devoid of such
facts. Given the paucity of genuine issues of material fact on the questions of nuisance and
trespass, it was a proper use of the Rule 56 mechanism to grant summary judgment in the
Finally, plaintiff offers brand-new arguments concerning damages. All of these
contentions were previously available to Schambeau, yet it chose not to raise them on summary
judgment, even though ASI specifically challenged plaintiff’s ability to prove damages. (Doc.
67, at 19.) A Rule 59(e) Motion is not properly used to trot out arguments that the movant could
have raised, but elected not to raise, in the summary judgment briefing. See, e.g., American
Home Assur. Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1239 (11th Cir. 1985)
(cautioning against use of motion to reconsider to afford a litigant “two bites at the apple”);
Tardif v. People for Ethical Treatment of Animals, 2011 WL 6004071, *1 (M.D. Fla. Dec. 1,
2011) (“Court opinions are not intended as mere first drafts, subject to revision and
reconsideration at a litigant’s pleasure.”) (citation and internal quotation marks omitted). In any
endeavors to make the same arguments again. As for plaintiff’s contention that Schambeau’s
evidence establishes that it “has been the recipient of continued discharge of waters off the ASI
site through slits in the parking lot” (doc. 84, ¶ 12), the Court disagrees. Plaintiff has come
forward with no evidence of such continued discharge of waters through slits in ASI’s parking
lot, but has instead offered speculative, self-serving inadmissible lay opinion testimony by a Rule
30(b)(6) deponent; a set of inscrutable photographs devoid of any evidentiary foundation, other
than counsel’s impermissible ipse dixit; and a natural flow of water that appears entirely
consistent with the objected-to flows, all set against the backdrop of plaintiff’s failure to observe
any drainage problems on its property for 10 years after ASI last performed meaningful
construction or development work on its site. There is thus no evidence from which a reasonable
factfinder could conclude that (i) ASI maintained a property that altered the status quo of natural
surface water flows, either through “slits in the parking lot” or otherwise; or (ii) plaintiff was
damaged by any such alteration.
event, plaintiff’s newly raised damages arguments are not persuasive, and in no way alter or
undermine the December 30 Order.4
For all of these reasons, as well as those set forth in the December 30 Order, plaintiff’s
Motion to Alter, Vacate or Set Aside that Certain Order/Judgment Granting Summary Judgment
(doc. 84) is denied.
Taxation of Costs.
Also before the Court are ASI’s Bill of Costs (doc. 80) and Amended Motion to Re-Tax
Costs to the Plaintiff (doc. 81). Taken together, these filings show that ASI seeks an award of
costs including the following: (i) filing fee of $350.00; (ii) scanning/photocopy charges of
$473.16; and (iii) deposition charges of $4,252.81. Plaintiff has not responded to either the Bill
of Costs or the Amended Motion to Re-Tax Costs.
Plaintiff for the first time maintains that it is unnecessary to establish physical
damage to the property, as long as the diversion of waters by ASI has diminished its property
value. (Doc. 84, ¶ 8.) No such evidence of diminution of value arising from water runoff from
ASI’s property has been presented. Nor could it reasonably be offered here. Recall that the first
time Schambeau observed pooled water accumulating on its property that it attributed to
neighboring landowners was in the summer of 2009. Any diminution of value of which
Schambeau complains would necessarily arise from this “water pooling” phenomenon. But there
is no evidence that the pooled water on Schambeau’s property came from “slits in the parking
lot” on ASI’s property, as plaintiff now argues in its Rule 59(e) Motion. It is undisputed that
those slits in the parking lot had been there, unchanged and undisturbed, for at least a decade
before any pooling of water was observed on Schambeau’s land. So how could these offending
slits be causing the water pooling and any accompanying diminution of value? Plaintiff has
never answered in a manner that might give rise to a jury question. Instead, plaintiff simply
states in conclusory fashion that “the consequences of [ASI]’s facility was to run water off that
facility through slits constructed in the parking lot onto the property of Schambeau” for a 10-year
period. (Doc. 84, ¶ 13.) The record supports no such factual inference. On this record, no jury
could find that slits in ASI’s parking lot that had been present since at least 1999 caused a
drainage problem on plaintiff’s property in 2009 (after no drainage issues on Schambeau’s land
at any time during the previous 10 years), except through rank speculation unsupported by record
facts. (This is particularly true given that the timing of the discovery of the water pooled on
Schambeau’s property coincided with another party’s construction of a Waffle House next door,
not a nearby parking lot with slits that had been present for at least a decade.) Plaintiff’s
suggestion that it is entitled to punitive damages if ASI diverted water “wantonly or recklessly”
is even more far-fetched. (Doc. 84, ¶ 9.) There is no evidence of wanton or reckless conduct by
ASI, and plaintiff does not even attempt to identify any. In short, there is no record evidence
from which a jury could find injurious consequences to Schambeau arising from “slits
constructed in the parking lot” of ASI’s facility fully 10 years before the alleged injury occurred.
Pursuant to Rule 54(d), Fed.R.Civ.P., the general rule is that costs “should be allowed to
the prevailing party.” Id. However, this rule does not confer upon district courts unfettered
discretion to “tax costs to reimburse a winning litigant for every expense he has seen fit to incur
in the conduct of his case.” Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 13
L.Ed.2d 248 (1964). Rather, statutory authorization is a necessary condition for the shifting of
costs. See West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 86, 111 S.Ct. 1138,
113 L.Ed.2d 68 (1991); see also U.S. Equal Employment Opportunity Commission v. W&O, Inc.,
213 F.3d 600, 621 (11th Cir. 2000) (“a court may only tax costs as authorized by statute”).
“[A]bsent explicit statutory or contractual authorization, federal courts are bound by the
limitations set out in 28 U.S.C. § 1920” in awarding costs to a prevailing party. Arcadian
Fertilizer, L.P. v. MPW Indus. Services, Inc., 249 F.3d 1293, 1296 (11th Cir. 2001).
In the Bill of Costs, ASI claims costs of $350 for “Fees of the Clerk.” The court file
reflects that ASI filed a Notice of Removal (doc. 1) in this action on January 14, 2011, and paid a
$350 filing fee in connection with that removal. This fee is properly taxed as costs. See 28
U.S.C. § 1920(1) (“A judge or clerk … may tax as costs … [f]ees of the clerk and marshal”);
West v. New Mexico Taxation and Revenue Dep’t, 2011 WL 5223010, *8 (D.N.M. Sept. 30,
2011) (“It appears that the majority of courts find that the filing fee after removal is a taxable
cost.”); Street v. U.S. Corrugated, Inc., 2011 WL 2971036, *2 (W.D. Ky. July 20, 2011) (“the
Court finds that the removal filing fee is a properly taxable cost”). Accordingly, the removal
filing fee of $350.00 will be taxed against plaintiff.
ASI’s Bill of Costs also lists $473.16 under the heading “Fees for exemplification and the
costs of making copies of any materials where the copies are necessarily obtained for use in the
case.” Photocopying and scanning costs are taxable under applicable law, but only “where the
copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4); see also Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 763 (8th Cir. 2006) (“Copy and exemplification fees may
be awarded if the fees were incurred for items ‘necessarily obtained’ for use in the case.”). ASI
attaches invoices to the Bill of Costs showing that it actually incurred costs for scans and copies
of various materials from various vendors. However, nothing in ASI’s submission shows that
such copies were “necessarily obtained for use in the case”; to the contrary, movant has
furnished no explanatory verbiage of any kind. It is ASI’s burden to show that the requested
costs are within the statute’s ambit. See generally Trustees of Chicago Plastering Inst. Pension
Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009) (“Any party seeking an award of
costs carries the burden of showing that the requested costs were necessarily incurred and
reasonable.”); Allison v. Bank One-Denver, 289 F.3d 1223, 1248-49 (10th Cir. 2002) (“the burden
is on the party seeking costs … to establish the amount of compensable costs and expenses to
which it is entitled”). ASI having failed to satisfy its burden of showing that the
photocopy/scanning fees requested were necessarily incurred for use in the case (rather than for
other purposes, such as the convenience of counsel), these costs are disallowed, and will not be
taxed against plaintiff. See generally Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991)
(remanding to district court where movant made no “demonstration that reproduction costs
necessarily result from that litigation,” as it was “impossible to tell to what extent copies charged
to ARAMCO were necessarily obtained for use in the case rather than obtained simply for the
convenience of counsel”).
Finally, ASI seeks an award of costs for deposition transcript charges incurred by ASI for
the depositions of Aleta Greenspan ($953.30), Ronald McClain ($707.23), Kenneth Williams
($872.12), Garrett Todd Lee ($665.04), and Steve Geci ($1,055.12). By statute, “[f]ees for
printed or electronically recorded transcripts necessarily obtained for use in the case” may be
taxed as costs. 28 U.S.C. § 1920(2). Deposition transcript fees are not recoverable if they were
incurred “for convenience, to aid in thorough preparation, or for purposes of investigation only.”
W&O, 213 F.3d at 620 (citations omitted); see also Romero v. CSX Transp., Inc., 270 F.R.D.
199, 202 (D.N.J. 2010) (“Costs for depositions obtained for the convenience of counsel or for
investigatory or discovery purposes, which are not used or intended for use at trial, may not be
taxed.”) (citation omitted). The critical question, then, is whether the 5 sets of deposition costs
identified by ASI in its Amended Motion to Re-Tax Costs were “necessarily obtained for use in
the case.” The court file confirms that ASI used and relied on all of these deposition transcripts
in briefing its Rule 56 Motion, and submitted excerpts of same in support of that motion.5 The
Also, all of those deposition transcript fees are duly confirmed and documented
by invoices appended to the Bill of Costs. See generally Matusick v. Erie County Water
Authority, 774 F. Supp.2d 514, 533 (W.D.N.Y. 2011) (“only those deposition transcripts
confirmed by invoice should be taxed as costs”); Johnson v. Big Lots Stores, Inc., 639 F. Supp.2d
696, 709 (E.D. La. 2009) (“[a] party seeking costs bears the burden of supporting its request with
evidence documenting the costs incurred”).
December 30 Order cited to each of these transcripts, and each was material to the issues
presented on summary judgment. Accordingly, such deposition transcript fees (in the total sum
of $4,252.81) are properly taxable as costs because these depositions were necessarily obtained
by defendant for use in the case. See W&O, 213 F.3d at 621 (“A district court may tax costs
associated with the depositions submitted by the parties in support of their summary judgment
motions.”) (citation and internal quotation marks omitted).
For all of the foregoing reasons, costs are hereby taxed against plaintiff and in favor of
defendant Alabama Sound Investments, Inc., pursuant to 28 U.S.C. § 1920 and Rule 54(d)(1), in
the total amount of $4,602.81, including $350.00 for fees of the Clerk of Court and $4,252.81 for
deposition transcript fees.
It is ordered as follows:
Plaintiff’s Motion to Alter, Vacate or Set Aside (doc. 84) is denied;
Defendant ASI’s Motion to Re-Tax Costs (doc. 79) is moot;
ASI’s Amended Motion to Re-Tax Costs (doc. 81) is granted, and its request for
costs pursuant to the Bill of Costs (doc. 80) is granted in part, and denied in
Costs are hereby taxed against plaintiff and in favor of ASI in the total amount of
DONE and ORDERED this 26th day of January, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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