Georgia-Pacific Consumer Products LP et al v. Zurich American Insurance Co. et al

Filing 387

ORDER denying 373 Motion to Reconsider and denying the Motion for Leave to File Renewed Motion. Signed by Chief Judge William H. Steele on 10/5/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GEORGIA-PACIFIC CONSUMER
PRODUCTS LP, etc., et al.,
Plaintiffs,
v.
ZURICH AMERICAN INSURANCE
COMPANY, etc., et al.,
Defendants.

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) CIVIL ACTION 15-0342-WS-B
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ORDER

The Court recently denied the plaintiffs’ motion for partial summary
judgment regarding their claim against defendant S&S Sprinkler Co. for breach of
contract of indemnity. (Doc. 349). The Court ruled that the April 2014 purchase
order (“the Purchase Order”) was ambiguous as to whether it incorporated by
reference the December 2008 Master Service Agreement (“the 2008 MSA”), that
the parties’ superficial treatment was insufficient to resolve the ambiguity based
on rules of contract construction, and that the competing extrinsic evidence they
offered presented a jury question. Because the plaintiffs failed to establish that the
2008 MSA (with its indemnity provision) was incorporated by reference into the
Purchase Order, the Court did not reach any issue regarding the breach vel non of
the indemnity provision.
The plaintiffs have now filed a motion for leave to file a renewed motion
for partial summary judgment or, in the alternative, a motion to reconsider the
Court’s previous order. (Doc. 373). The Court considers these in reverse order.

I. Motion to Reconsider.
The grant or denial of a motion to reconsider is left to the discretion of the
trial court. Chapman v. AI Transport, 229 F.3d 1012, 1023-24 (11th Cir. 2000) (en
banc). Such a motion may not be used as a vehicle to inject new arguments into
the underlying motion, or to submit evidence previously available but not properly
presented on the underlying motion. Mays v. United States Postal Service, 122
F.3d 43, 46 (11th Cir. 1997). Nor may it be used to “relitigate old matters.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (internal
quotes omitted). Instead, “[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.” Gibson v. Mattox, 511 F. Supp. 2d 1182, 1185 (S.D. Ala. 2007)
(internal quotes omitted).1 As this Court has noted, “[m]otions to reconsider serve
a valuable but limited function. They 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. They do not, in short, serve to relieve a party of the
consequences of its original, limited presentation.” Dyas v. City of Fairhope, 2009
WL 5062367 at *3 (S.D. Ala. 2009). The plaintiffs, cognizant of these limitations,
assert that reconsideration is needed “to correct an error law and fact … and/or
avoid manifest injustice.” (Doc. 373 at 7).

1

While Mays and Wilchombe involved post-judgment motions under Rule 59(e),
courts within this Circuit have often applied these principles to pre-judgment motions to
reconsider. E.g., Busby v. JRHBW Realty, Inc., 2009 WL 1181902 at *2 (N.D. Ala.
2009); Controlled Semiconductor, Inc. v. Control Systemation, Inc., 2008 WL 4459085 at
*2 (M.D. Fla. 2008); Eslava v. Gulf Telephone Co., 2007 WL 1958863 at *1 (S.D. Ala.
2007); Summit Medical Center, Inc. v. Riley, 284 F. Supp. 2d 1350, 1355 (M.D. Ala.
2003). This is only sensible, since allowing parties to withhold arguments and evidence
until after losing is equally destructive of judicial economy and fairness in either context.
E.g., Gibson, 511 F. Supp. 2d at 1185 (even pre-judgment, “in the interests of finality and
conservation of scarce judicial resources, reconsideration of an order is an extraordinary
remedy that is employed sparingly”).

2

The Court ruled that, under Alabama law, when rules of construction do not
resolve an ambiguity, the parties may present extrinsic evidence, with the
resolution of factual issues arising from such evidence the province of the jury.
The Court concluded that the parties’ extrinsic evidence and the permissible
inferences to be drawn therefrom were conflicting, necessitating resolution by a
jury. (Doc. 349 at 7, 8-9).
The plaintiffs indicate the Court committed an error of law by not
acknowledging an Alabama rule of construction that, “even where there is an
ambiguity, summary judgment is appropriate where the undisputed facts establish
the parties’ intent.” (Doc. 373 at 7). The only Alabama case they cite for this
proposition does not support it. What the Court said in McLemore v. Hyundai
Motor Manufacturing, LLC, 7 So. 3d 318 (Ala. 2008), was that, “if the terms
within the contract are ambiguous in any respect, the determination of the true
meaning of the contract is a question of fact to be resolved by a jury.” Id. at 328
(internal quotes omitted). The McClemore Court also said, in the same language
used by the Court in its previous order, that “[i]f the application of such rules [of
contract construction] is not sufficient to resolve the ambiguity, factual issues
arise,” and “[w]here factual issues arise, the resolution of the ambiguity becomes a
task for the jury.” Id. at 327 (internal quotes omitted). The McClemore Court
then repeated this concept and applied it in reversing the lower court’s grant of
summary judgment. Id. at 339 (“The language in the option agreements is
ambiguous, and its meaning … cannot be determined without considering
evidence outside ‘the four corners’ of the option agreements. … Thus, submission
of the case to the jury is proper, and the summary judgment for [the defendant] is
reversed.”).
Even if the plaintiffs’ statement of law were correct, they did not present it
to the Court in support of their motion for partial summary judgment. As the
Court noted in its earlier order, the only rule of contract construction invoked by
the plaintiffs was that a court “must give effect to all terms of the instrument.”
3

(Doc. 349 at 8). A losing party cannot stand silent as to the rules governing
contract construction and then obtain reconsideration by objecting to the rules
employed by the Court and offering new ones it never mentioned previously.
Even if the plaintiffs’ statement of law were correct, and even had it been
timely invoked, the Court’s ruling was in accordance with it. The plaintiffs point
to their extrinsic evidence and assert it is all undisputed. (Doc. 373 at 3-4). This
is incorrect, both as to important elements of that evidence and as to the inferences
to be drawn from it. Moreover, the defendants have presented their own
competing package of extrinsic evidence, which points towards resolution of the
ambiguity favorably to them.2 Such a conflict in the evidence and reasonable
inferences cannot possibly be resolved on motion for summary judgment.
Although the plaintiffs mention “error of … fact” and “manifest injustice,”
(Doc. 373 at 7), they identify none. As shown above, the only criticism the
plaintiffs level at the Court’s order exposes no such error or injustice.
For the reasons set forth above, the plaintiffs’ motion to reconsider is
denied.
II. Motion for Leave to File Renewed Motion.
The plaintiffs filed their motion for partial summary judgment in July 2016,
over two months before the deadline for filing dispositive motions. They were
entitled to do so. Fed. R. Civ. P. 56(b). Having lost that motion, however, they
have no unfettered right to try again.
“[W]e certainly do not approve in general the piecemeal consideration of
successive motions for summary judgment, since defendants might well normally
be held to the requirement that they present their strongest case for summary
judgment when the matter is first raised ….” Allstate Finance Corp. v.
Zimmerman, 296 F.2d 797, 799 (5th Cir. 1961). The disfavored status of repeat
2

The plaintiffs in the instant motion ignore this evidence, as they largely did in
their reply brief in support of their motion for partial summary judgment.
4

motions for summary judgment, absent special circumstances, remains the law of
this Circuit. Fernandez v. Bankers National Life Insurance Co., 906 F.2d 559,
569 (11th Cir. 1990) (“‘If good reason is shown why a prior denial of a motion for
summary judgment is no longer applicable or should be departed from, the trial
court may, in the exercise of sound discretionary power, consider a renewed
motion for summary judgment, particularly when the renewed motion is based on
an expanded record.”) (quoting Kirby v. P.R. Mallory & Co., 489 F.2d 904, 913
(7th Cir. 1973)). The plaintiffs themselves recognize that the early filing of
dispositive motions is permitted in order “to obtain judicial and legal economies,”
(Doc. 246 at 1 n.1), which economies would be negated – and fresh costs incurred
– were repeat motions for summary judgment routinely allowed.
Consistent with these authorities and principles, the Court has adopted the
following test for permitting a successive motion for summary judgment:
Having elected to consume substantial judicial and litigant resources
early in the game by filing their Motion for Summary Judgment near
the inception of this case, the [defendants] will not be afforded a
second bite at the summary judgment apple to raise arguments and
present evidence that they could and should have submitted earlier,
but did not. To proceed otherwise would be to allow litigants to treat
their initial summary judgment motions as a “dry run” which they
could have an opportunity to redo or supplement – at considerable
additional cost to opposing parties and at a considerable drain to
scarce judicial resources – via a new Rule 56 motion later on to
correct any deficiencies identified by opposing counsel or the court
in processing the initial motion. … Accordingly, the Court will
consider a subsequent motion for summary judgment from
the [defendants] only if it comports with the standards for
reconsideration under Rules 59 and 60 of the Federal Rules of
Civil Procedure, or if the [defendants] demonstrate that they are
raising new, previously unavailable arguments and/or presenting
new, previously unavailable evidence in support of their claims.
Middlegate Development, LLP v. Beede, 2011 WL 3475474 at *11 n.26 (S.D. Ala.
2011). The plaintiffs themselves identify the controlling test as whether “a clear

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need arises to correct a manifest injustice.” (Doc. 373 at 5 (internal quotes
omitted)).
As discussed in Part I, the plaintiffs have uncovered no manifest injustice.
Nor do they claim to have new arguments or evidence, previously unavailable, that
would support a different result on a re-do. What they ask is simply an
opportunity to make a more thorough and/or persuasive presentation than they
accomplished with their previous effort.3 Such a request amounts to the proverbial
second bite at the apple, which neither the Eleventh Circuit nor this Court
countenances.4
The plaintiffs correctly acknowledge that the decision whether to permit a
successive motion for summary judgment is left to the Court’s discretion. (Doc.
373 at 5). For the reasons set forth above, the Court declines to exercise its
discretion in favor of a successive motion. The plaintiffs’ motion for leave to file
a renewed motion for partial summary judgment is denied.
DONE and ORDERED this 5th day of October, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
3

The plaintiffs, in their principal brief on motion for partial summary judgment,
devoted less than two pages of argument to the issue whether the 2008 MSA supplied the
terms and conditions governing the Purchase Order. (Doc. 246 at 20-21). Their reply
brief added 4½ pages of argument. (Doc. 334 at 12-17). The plaintiffs’ proposed brief in
support of their proposed renewed motion for partial summary judgment, in contrast,
devotes 12 pages of argument to the issue, (Doc. 373-2 at 17-28), plus an expanded
statement of facts regarding the issue.
4

The plaintiffs’ previous motion was grounded on the doctrine of incorporation
by reference. (Doc. 246 at 20; Doc. 334 at 13, 14). While their proposed renewed
motion nominally retains that grounding, their analysis has shifted radically. On their
previous motion, the plaintiffs argued that “the PO itself” establishes incorporation by
reference. (Id. at 12). Now that this approach has proved problematic, the plaintiffs, in
their proposed brief in support of their proposed renewed motion, abandon that effort and
argue that the language of the 2008 MSA, “read together” with the PO, establishes
incorporation by reference. (Doc. 373-2 at 18). This argument was previously available,
and it furnishes no grounds for a renewed motion for summary judgment.
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