Breland et al v. Levada EF Five, LLC

Filing 211

ORDER DENYING Plfs' 198 Motion to Renew & 200 Motion for New Trial or, Alternatively, 200 Motion to Alter Judgment as set out, & Plfs' 199 Motion to Stay Execution is MOOT as set out. Signed by Senior Judge Callie V. S. Granade on 6/8/2016. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES K. BRELAND, JR., et
al.,
Plaintiffs,
vs.
LEVADA EF FIVE, LLC,
Defendant.

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) CIVIL ACTION NO. 14-158-CG-C
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ORDER

This matter is before the Court on the motion of Plaintiffs1 to renew
previously filed motions2 (Doc. 198); stay execution of judgment (Doc. 199); for a new
trial or, alternatively, motion for remittitur (Doc. 200); and Defendant Levada EF
Five, LLC’s (“Levada”) opposition thereto (Doc. 209). For the reasons stated below,
Plaintiffs’ motions are denied, in part, and moot, in part.

DISCUSSION
Plaintiffs’ breach of contract claims and Levada’s counterclaim for breach of
contract were tried before a jury on February 1, 2, and 3, 2016. Upon entry of a
Plaintiff Charles K. Breland, Jr.; Osprey Utah, LLC (“Osprey”); Water Canyon
Holdings, LLC (“Water Canyon”); Range Creek Holdings, LLC (“Range Creek”); and
Utah Reserve Exchange, LLC (“Utah Reserve”) are collectively referred to as
“Plaintiffs”.
2 Plaintiffs seek to renew their Motion for Judgment as a Matter of Law on Plaintiffs’
Claims for Breach of Contract (Doc. 178); Judgment as a Matter of Law on
Defendant’s Counterclaim for Breach of Contract (Doc. 179); and Motion for New
Trial or, Alternatively, Remittitur (Doc. 180).
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verdict in favor of Levada for Plaintiffs’ claims and Levada’s counterclaim, the
following exchange took place:
The Court: All right. How much time do the parties want to submit
post-trial motions or information about attorneys’ fees, that sort of
thing?
[Plaintiffs’ Counsel]: 30 days.
The Court: How many? 30?
[Plaintiffs’ Counsel]: 30? 15?
The Court: Well, I’ll ask you [ ] [ ] how much time do you need?
[Plaintiffs’ Counsel]: I would prefer 30 days.
The Court: What about the defendant?
[Defense Counsel]: That’s fine with me.
(Doc. 185-2, p. 84, l. 21–p. 85, l. 6). Whereupon the Court decreed in a separate
order, “Post[-]trial motions are to be filed no later than March 4, 2016.” (Doc. 173,
p. 3) (emphasis in original). Plaintiffs made no objection to the Court’s post-trial
scheduling order. Instead, Plaintiffs filed a host of post-trial motions. See (Docs.
178, 179, 180). After considering Plaintiffs’ post-trial motions and Levada’s
objections thereto (Docs. 181, 182, 183), the Court denied Plaintiffs’ post-trial
motions and entered judgment on the verdict. (Docs. 191, 192).
Now, “Plaintiffs move the Court to reconsider Plaintiffs’ motion for new trial
or remittitur (Doc. 180) as well as Plaintiffs’ renewed motions for judgment as a
matter of law (Docs. 178[,] 180).” (Doc. 198). Additionally, Plaintiffs filed a second
new trial motion which repeat previous arguments and attempt to introduce

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additional evidence. (Doc. 200). Levada counters that Plaintiffs “do[ ] not present
any new arguments in support of their motions” (Doc. 209, p. 4), and that the “new”
evidence they seek to now admit was available to them prior to trial (Id., p. 6).
The decision to grant or deny a motion to reconsider is left to the discretion of
the trial court. Chapman v. AI Transp., 229 F.3d 1012, 1023–24 (11th Cir. 2000) (en
banc). “In the interest of finality and conservation of scarce judicial resources,
reconsideration of an order is an extraordinary remedy and is employed sparingly.”
Gougler v. Sirius Prods., Inc., 370 F. Supp. 2d 1185, 1189 (S.D. Ala. 2005) (citation
omitted). Generally, “[a] motion to reconsider is only available when a party
presents the court with evidence of an intervening change in controlling law, the
availability of new evidence, or the need to correct clear error or manifest injustice.”
Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F. Supp. 2d 1350, 1355 (M.D. Ala. 2003).
However, “[m]otions for reconsideration should not be used to raise legal arguments
which could and should have been made before the judgment was issued[,]”
Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1292 (11th Cir. 2001) (citations
omitted), and “cannot be brought solely to relitigate issues already raised[,]” Harris
v. Corrections Corp. of America, 433 F. App’x 824, 825 (11th Cir. 2011). See also
American Home Assur. Co. v. Glenn Estees & Assocs., Inc., 763 F.2d 1237, 1239
(11th Cir. 1985) (cautioning against use of a motion to reconsider to afford a litigant
“two bites at the apple”).
After a review of the Court’s prior order and Plaintiffs’ current briefs, the
undersigned finds no evidence of an intervening change in controlling law or clear

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error or manifest injustice. Instead, Plaintiffs’ reconsideration motion and second
new trial motion re-plow arguments previously raised or rely on facts that Plaintiffs
could have presented at trial.3 Neither warrants relief from or a decision contrary to
the Court’s April 28 Order and Judgment, which decided these matters. See 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.”) Moreover, the Court’s post-trial briefing schedule
afforded all parties ample opportunity to put all issues before the Court. Plaintiffs
did not object to the schedule but, rather, proposed that timeline. Thus, Plaintiffs’
Motion to Renew and second New Trial Motion are improper.
Plaintiffs additionally move the Court to stay execution of the judgment
pending resolution of Plaintiffs’ Motion to Renew and second New Trial Motion
pursuant to Rule 62(b), Fed. R. Civ. P. (Doc. 199). Since resolution of said motions
is complete, Plaintiffs’ request of stay is thereby moot.

The “new” evidence Plaintiffs proffer includes a chain of emails between William R.
Miller and a Questar representative. Two points are worth noting after reviewing
the emails. First, it is apparent that Questar is efficient in responding to questions.
The Questar representative’s response times ranged from eight minutes to a little
over four hours. See (Doc. 200-2, pp. 18–24). It appears that Questar provided Mr.
Miller with the price quote Plaintiffs seek to introduce in ten days. Id. at 25–27.
Second, Plaintiffs received notice that Levada was seeking “compensatory damages
of $1.53 million pursuant to its Counterclaim” no later than January 14, 2016, which
was eighteen days before trial began. (Doc. 137-1, p. 32). It stands to reason that
Plaintiffs had ample time to obtain this evidence before trial.
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CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Renew (Doc. 198) and second
Motion for New Trial or, Alternatively, Motion for Remittitur (Doc. 200) are
DENIED. Plaintiffs’ Motion for Stay of Execution of Judgment (Doc. 199) is MOOT.
DONE and ORDERED this 8th day of June, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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