3A Composites USA, Inc. v. United Industries, Inc. et al
ORDER denying 81 Motion for Reconsideration. Signed by Honorable Timothy L. Brooks on October 10, 2017. (jch)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
3A COMPOSITES USA, INC.,
a Missouri Corporation
CASE NO. 5:16-CV-5017
UNITED INDUSTRIES, INC.,
an Arkansas Corporation; and
OPINION AND ORDER
Currently before the Court are the Renewed Motion for Reconsideration of Court’s
Order Dismissing 3A’s Claim for Tortious Interference (Doc. 81) and Brief in Support (Doc.
82) filed by Plaintiff 3A Composites USA, Inc. (“3A”); the Response (Doc. 83) and Brief
(Doc. 84) filed by Defendants United Industries, Inc. (“United”) and Wesley Paulin; and
the parties’ respective supplemental letter briefs (Docs. 86, 87). 3A’s Motion is DENIED.
As the Court has previously explained:
This is the second lawsuit in this Court between these parties. In the
previous lawsuit, 3A brought claims against the Defendants for trade-secret
misappropriation, breach of contract, tortious interference with contract, and
deceptive trade practices, all of which revolved around United’s efforts to
duplicate 3A’s method of producing a product called “thick foam.”
Eventually, the Court awarded the Defendants summary judgment on 3A’s
claims for tortious interference and deceptive trade practices, but permitted
3A’s claims for breach of contract and trade-secret misappropriation to
proceed to trial.
(Doc. 79, p. 2). Being an award of summary judgment on the merits, the Court dismissed
3A’s tortious-interference and deceptive-trade-practices claims with prejudice. See 3A
Composites USA, Inc. v. United Indus., Inc., 2015 WL 5437119, at *8 (W.D. Ark. Sep. 15,
2015) (“Plaintiff 3A Composites USA, Inc. may proceed on its claims for breach of contract
and violations of the Arkansas Trade Secrets Act, but all of its other claims are
DISMISSED WITH PREJUDICE.” (emphasis in original)). 3A then filed a motion for the
Court to reconsider its summary judgment ruling on the tortious interference claim, which
the Court denied.
See 3A Composites USA, Inc. v. United Indus., Inc., 2015 WL
11120888 (W.D. Ark. Nov. 4, 2015). Then, “on the eve of trial the parties stipulated to a
dismissal without prejudice of 3A’s remaining claims, subject to various conditions, which
the Court granted.” (Doc. 79, p. 3).
A couple of months later, 3A filed the instant lawsuit, “reasserting its old claims for
breach of contract, tortious interference with contract, and trade-secret misappropriation,
but expanding the factual predicate to include not only attempted duplication of 3A’s thick
foam product but also attempted duplication of another 3A product called ‘Gatorfoam.’”
Id. After discovery concluded, the Court granted summary judgment to the Defendants
on all of 3A’s claims, to the extent those claims were premised on the new Gatorfoam
allegations. See Doc. 55.
The Motion presently before the Court seeks to renew 3A’s motion, filed in the
previous case, to reconsider the Court’s award of summary judgment to the Defendants
on 3A’s thick-foam claim for tortious interference. The Court has several problems or
concerns with this.
The first problem is that the Court believes 3A’s thick-foam claim for tortious
interference is barred by the doctrine of res judicata, such that this Court would not be
permitted to reconsider its award of summary judgment on that claim even if it were
otherwise inclined to do so. Under that doctrine, “a final judgment on the merits of an
action precludes the parties or their privies from relitigating issues that were or could have
been raised in that action.” Carlisle Power Transmission Prods., Inc. v. United Steel,
Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. and Serv. Workers Int’l Union,
Local Union No. 662, 725 F.3d 864, 867 (8th Cir. 2013) (quoting Allen v. McCurry, 449
U.S. 90, 94 (1980)). “For res judicata to apply, there must be: (1) a final judgment on the
merits that is, (2) based on proper jurisdiction, (3) between the same parties or their
privies, and (4) based on the same claims or causes of action.” Id. 3A’s tortious
interference claim from the previous case obviously satisfies the second, third, and fourth
res judicata factors; the same claim was brought by and against the same parties in this
same Court as before. But the first factor presents a more puzzling issue here.
At the pretrial conference held on September 27, 2017, the Court invited the parties
to provide informal letter briefs on this issue, which they have since done. The Court has
filed 3A’s letter on the docket at Doc. 86, and the Defendants’ letter at Doc. 87. In its
letter, 3A argues that there was no final judgment on the merits in the prior case, because
its contract and trade-secret claims were dismissed without prejudice for the expresslycontemplated purpose of refiling them in this Court. Thus, 3A contends, it could not have
appealed the Court’s award of summary judgment to the Defendants on its tortious
interference claim without running afoul of “the well-entrenched policy which bars a
plaintiff from splitting its claims against a defendant.” Missouri ex rel. Nixon v. Coeur
D’Alene Tribe, 164 F.3d 1102, 1106 (8th Cir. 1999).
3A is certainly correct that this policy against claim-splitting exists. And pursuant
to that policy, 3A would have risked converting the dismissal of its contract and tradesecret claims from one without prejudice to one with prejudice if it had appealed this
Court’s earlier summary-judgment ruling directly from that voluntary nonsuit. See Minn.
Pet Breeders, Inc. v. Schell & Kampeter, Inc., 41 F.3d 1242, 1245 (8th Cir. 1994). But
Eighth Circuit precedent is clear on the point that “[a] dismissal without prejudice can be
an appealable final order” under 28 U.S.C. § 1291, so long as there is “some clear and
unequivocal manifestation by the trial court of its belief that the decision made, so far as
the court is concerned, is the end of the case.” Great Rivers Co-op. of S.E. Iowa v.
Farmland Indus., Inc., 198 F.3d 685, 689 (8th Cir. 1999) (internal quotation marks and
alterations omitted). The final order of dismissal in the prior 3A case dismissed all of the
remaining claims without prejudice. The trial was cancelled. The docket was marked to
reflect that the case was closed. All of these things clearly indicate the Court’s belief that
the case was at an end.
There are several things that one could argue indicated the opposite belief. The
final order of dismissal explicitly discussed the possibility that the action would be refiled
in a new case. It ordered further motion practice to occur on the issue of attorney fees.
And no separate document formally styled as a “Judgment” was ever filed.
But although it is certainly true that the Court and all the parties anticipated that 3A
would refile the claims it had voluntarily dismissed without prejudice in a new case along
with some new claims, there was no indication that anyone, least of all the Court, had any
expectation that 3A would refile any of its old claims that had previously been dismissed
with prejudice. As for attorney fees, the Federal Rules of Civil Procedure expressly
contemplate post-judgment motion practice on that issue, see Fed. R. Civ. P.
54(d)(2)(B)(i), so the Court does not believe the pendency of that issue provided a
reasonable basis, of its own force, for anyone to question whether they were at “the end
of the case” for purposes of appeal.
The absence of a separate document entitled “Judgment” is a thornier matter. Fed.
R. Civ. P. 54(a) defines a “Judgment” as including “a decree and any order from which
an appeal lies.” Fed. R. Civ. P. 58(a) requires—with some exceptions not applicable
here—that “[e]very judgment and amended judgment must be set out in a separate
document.” Per Rule 54(a), that separate document “should not include recitals of
pleadings, a master’s report, or a record of prior proceedings.”
acknowledged, no separate document fitting this description was ever filed on the docket
in the prior case.
However, the Court’s failure to comply with Rule 58(a)’s separate-document
requirement did not make its final dismissal order in the prior case any less “final” or
appealable. When a court fails to file judgment as a separate document, Rule 58(d)
authorizes any party to “request that judgment be set out in a separate document as
required by Rule 58(a).” And regardless of whether any such request is ever made (or
granted), Rule 58(c) clarifies that “if a separate document is required,” then “[f]or purposes
of these rules, judgment is entered . . . when the judgment is entered in the civil docket
. . . and the earlier of these events occurs: (A) it is set out in a separate document; or (B)
150 days have run from the entry in the civil docket.” Furthermore, Rule 4 of the Federal
Rules of Appellate Procedure—which governs the time by which an appeal may be
taken—mirrors this language, providing that “if Federal Rule of Civil Procedure 58(a)
requires a separate document,” then “[a] judgment or order is entered for purposes of this
Rule 4(a) . . . when the judgment or order is entered in the civil docket . . . and when the
earlier of these events occurs: the judgment or order is set forth on a separate document,
or 150 days have run from entry of the judgment or order in the civil docket . . . .” See
Fed. R. App. P. 4(a)(7)(A)(ii). Then, to make things even more clear, it adds that “[a]
failure to set forth a judgment or order on a separate document when required by Federal
Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment
or order.” Fed. R. App. P. 4(a)(7)(B).
Ultimately, then, whether an order is a “final order” is a question of substance, not
And substantively speaking, for the reasons already given above, this Court
believes its final order of dismissal in the prior case clearly and unequivocally manifested
its understanding that the case had reached its end. Thus, when 3A’s motion for voluntary
dismissal in that case was granted, 3A arrived at a fork in the road: it could choose to
appeal this Court’s earlier summary-judgment ruling and thereby risk forfeiting its ability
to refile its contract and trade-secret claims in a subsequent action, or it could choose not
to appeal this Court’s earlier summary-judgment ruling and thereby ensure that its
contract and trade-secret claims could be refiled in a subsequent action. It chose the
latter course. Accordingly, with respect to 3A’s thick foam tortious-interference claim,
there has been a final judgment on the merits, thus satisfying the first factor of res judicata
The Court believes that is the end of the matter. Though styled as a “renewed
motion for reconsideration,” 3A’s instant Motion is in truth a request for this Court to
“reconsider” a final judgment that was entered in a prior action. The doctrine of res
judicata precludes this Court from doing that, so the Motion must be denied.
But even if there were no res judicata obstacle, the Court would still deny 3A’s
Motion. Motions for reconsideration must end at some point. The Court understands that
3A simply wants to create a record for appeal, and the Court does not begrudge 3A any
reasonable and fair attempts at doing so. 1 However, 3A’s Renewed Motion is not merely
a “renewed motion.” It also contains new argument and citation to authority that 3A just
as easily could have offered, but did not offer, in its original motion for reconsideration (to
say nothing of its original summary judgment briefing). See Doc. 82, pp. 5–6.
There is certainly a time and a place for motions for reconsideration. See Fed. R.
Civ. P. 60(b) (listing possible grounds for relief from a final judgment, order, or
proceeding). But an order of the Court is not an opening bid in a protracted negotiation
between the Court and the parties before it, nor is it an invitation for endless rounds of
further discussion and disagreement. 3A filed a response in opposition to the Defendants’
motion for summary judgment in the prior case. Then after the Court granted that motion
in part, 3A filed a motion for reconsideration, which the Court denied. 3A is not entitled
to a third bite at the apple. The Court will not consider any new arguments on whether
summary judgment was appropriate for 3A’s thick-foam tortious interference claim, and
the Court will not reconsider any arguments that it has already rejected once or twice
before with respect to that matter.
Though it bears mentioning that any deficiencies in 3A’s record for appeal are a problem
of 3A’s making, caused by its decision to nonsuit the first case on the literal eve of trial.
IT IS THEREFORE ORDERED that Plaintiff 3A Composites USA, Inc.’s Renewed
Motion for Reconsideration of Court’s Order Dismissing 3A’s Claim for Tortious
Interference (Doc. 81) is DENIED.
IT IS SO ORDERED on this 10th day of October, 2017.
_/s/ Timothy L. Brooks______________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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