FMD RESTORATION, INC. v. PHILADELPHIA INDEMNITY INSURANCE COMPANY et al

Filing 55

MEMORANDUM AND OPINION. Signed by Magistrate Judge Deborah A. Robinson on 3/30/2017. (lcdar1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FMD RESTORATION, INC.,
Plaintiff/Counter-Defendant,
Civil Action No. 13-651
DAR

v.
BAISTAR MECHANICAL, INC., et al.,
Defendants/Counter-Plaintiffs.

MEMORANDUM OPINION
Plaintiff and counterclaim Defendant, FMD Restoration, Inc. (“FMD”) initially brought
suit in a breach of contract action against Defendant and counterclaim Plaintiff Baistar Mechanical,
Inc. (“Baistar”). Baistar asserted a counterclaim against FMD alleging breach of contract. The
case proceeded to a bench trial, following which the court held that while FMD had materially
breached the contract between the parties, Baistar failed to introduce evidence sufficient to
demonstrate actual damages. The court, therefore, entered judgment for Baistar, but awarded only
nominal damages. Baistar now moves for the court to alter or amend its findings of fact pursuant
to Rule 52, and to alter or amend its judgment pursuant to Rule 59(a)(2).
PROCEDURAL BACKGROUND
FMD filed the complaint in May, 2013, alleging three counts of breach of contract by
Baistar. See Complaint (ECF No. 1). On June 20, 2013, Baistar answered the Complaint and pled
as a counterclaim two counts of breach of contract, and a third count alleging tortious interference
with business expectations by FMD. See Defendant Baistar Mechanical, Inc.’s Counter-Complaint
(ECF No. 5-1). On August 27, 2013, the Court (Jackson, J.) referred the matter to the undersigned

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for the possibility of settlement. Order Referring Case (ECF No. 14). On December 12, 2013, the
parties consented to proceed before the undersigned for all purposes. Consent to Proceed before
US Magistrate Judge for All Purposes (ECF No. 18).
The undersigned held a four-day bench trial concluding on May 23, 2014, after which both
parties were instructed to submit proposed findings of fact and conclusions of law. 05/23/2014
Minute Entry. Baistar submitted its proposed findings on October 27, 2014. See Proposed
Findings of Fact (ECF No. 39). FMD submitted its proposed findings on November 24, 2014. See
Proposed Findings of Fact (ECF No. 40). The undersigned issued a memorandum opinion and an
order of final judgment on June 21, 2016. FMD Restoration, Inc. v. Baistar Mechanical, Inc., No.
13-00651, 2016 WL 3461183 (D.D.C. June 21, 2016); Order of Final Judgment (ECF No. 49).
CONTENTION OF THE PARTIES
Baistar seeks to amend the court’s findings of fact on the ground that the court “made a
mistake of fact in finding that the breach of contract damages were less than the costs avoided by
terminating FMD with cause.”

Defendant/Counter-Complaintant Baistar Mechanical, Inc.’s

Motion to Alter or Amend Judgment (“Motion”) (ECF No. 50) at 2. Baistar argues that the court
held it to an “unreasonably high standard of evidence,” id. at 3, when it found that Baistar had
failed to show that “the materials supplied and work performed by Mega Construction were within
the scope of FMD’s requirements,” 2016 WL 3461183, at *11. Baistar submits that it “proved
well beyond a preponderance of the evidence that Mega Construction did [replacement work], and
that the work was within the scope” of the contract with FMD. Motion at 3.
In support, Baistar points to several portions of the trial transcript, wherein Baistar owner
Hung Ku Jun testified about the arrangement between Baistar and Mega Construction. Id. at 3–5.
Baistar argues that Mr. Jun’s testimony was unrebutted by FMD on cross-examination, and there

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“is nothing in the record to suggest that the work was not in the scope.” Id. at 5. Accordingly,
Baistar seeks to amend the findings of fact to include the payments to Mega Construction among
Baistar’s actual damages. Id. at 6. Such a finding would necessitate an amendment of the
judgment; awarding Baistar $135,717.10. Id.
In the alternative, Baistar requests “that the Court open the matter for further proceedings,
to call representatives from Mega Construction and Dominion Millwork to testify as to the work
that was done, and corroborate the testimony of Mr. Jun and the payment documentation.” Id.
FMD contends that Baistar’s motion should be construed as a Rule 59(e) motion for
reconsideration, and that such a motion is not warranted by the circumstances.
Plaintiff/Counterclaim Defendant’s Memorandum in Opposition and Statement of Points and
Authorities in Support (“Opposition”) (ECF No. 51) at 1–2. FMD argues that none of the criteria
for a Rule 59(e) motion are present because there has been no change in controlling law, new
evidence not available at trial, or a clear error of law. Id. at 2–3. According to FMD, the testimony
cited by Baistar does not support amending the judgment because it contained “many
incongruities,” id. at 3, and demonstrated that Baistar “hired Mega Construction, Delmy
Construction and Dominion Millwork to complete all of the work on the Project; whether or not it
was FMD’s work[.]” Id. at 4–5. Baistar did not file a reply to FMD’s opposition.
APPLICABLE STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 52(b) a party may move, within 28 days of the entry
of judgement, for the court to “amend its findings—or make additional findings—and . . . amend
the judgment accordingly. Fed. R. Civ. P. 52(b). This Rule “permits the trial court to correct
manifest errors of law or fact, make additional findings or take other action that is in the interests
of justice.” Ashraf-Hassan v. Embassy of France, No. 11-805 (JEB), 2016 WL 2626833, at *8

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(D.D.C. May 6, 2016) (quoting Bigwood v. Defense Intelligence Agency, 770 F. Supp. 2d 315, 318
n.2 (D.D.C. 2011)). The decision of whether to grant such a motion is left “to the sound discretion
of the trial judge and is not an avenue for relitigating issues upon which the moving party did not
prevail at trial.” Id. (quoting Material Supply Int’l, Inc. v. Sunmatch Indus. Co., Ltd., No. 94-1184,
1997 WL 243223, at *2 (D.D.C. May 7, 1997)). Accordingly, the moving party “bears a heavy
burden in seeking to demonstrate clear error of manifest injustice necessitating amendment of the
judgment.” Id. Rule 52 “cannot be a substitute for an appeal” and cannot be used as “a second
opportunity to litigate a point, to present evidence that was available but not previously offered, or
to advance new theories by moving to amend a particular finding of fact or conclusion of law.”
Salazar v. District of Columbia, 685 F. Supp. 2d 72, 75 (D.D.C. 2010) (citing 9C Wright & Miller,
Federal Practice and Procedure, § 2582 (3d ed. 2009)).
Pursuant to Rule 59, a party may “open the judgment if one has been entered, take
additional testimony, amend findings of fact and conclusions of law or make new ones, and direct
the entry of a new judgment.” Fed. R. Civ. P. 52(a)(2). As with motions brought under Rule 52,
“Rule 59 motions may not be used to religitate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of judgment.” Salazar, 685 F. Supp. 2d at
75 (citing 11 Wright, Miller & Kane, Federal Practice and Procedure, § 2810.1 (2d ed. 2009);
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008); Klayman v. Judicial Watch, Inc., No. 06-670
(CKK), 2007 WL 1034936, at *2–3 (D.D.C. Apr. 3, 2007); United States v. Western Elec. Co.,
Inc., 690 F. Supp. 22, 25 (D.D.C. 1988)). “The purpose of Rule 59(a)(2) is not to introduce new
evidence that was available at the time of trial but was not proferred[.]” Ashraf-Hassan, 2016 WL
2626833, at *11 (citing Chavez v. City of Albuquerque, 640 F. Supp. 2d 1340, 1343 (D.N.M.
2008)). A trial court “should be most reluctant to set aside that which it has previously decided

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unless convinced that . . . refusal to revisit the earlier decision would work a manifest injustice.”
Id. (citing Barnes v. Alves, 304 F.R.D. 363, 366–67 (W.D.N.Y 2015)).
DISCUSSION
Baistar has failed to demonstrate that any of the grounds warranting relief pursuant to either
Rule 52 or Rule 59 are present in this case. Accordingly, the court will deny the motion for the
reasons set forth below.
Baistar does not argue that there has been any change in controlling law, nor does it argue
that any new evidence has come to light that was not available during the trial. Instead, Baistar
seeks to amend the court’s findings because, it argues, the court held it to “an unreasonably high
standard of evidence,” Motion at 3, when the court found that Baistar had failed to show that the
replacement costs to Mega Construction were within the scope of the contract with FMD, see 2016
WL 3461183, at *11. Baistar claims that the testimony of Mr. Jun was more than sufficient to
show that the materials supplied and the work performed by Mega Construction were within the
scope of the contract with FMD; in fact, Baistar argues that “[t]here is nothing in the record to
suggest that the work was not in the scope.” Motion at 5.
The court did not find this argument persuasive during trial, and it has no need to re-litigate
the issue at this time. Post-trial motions under Rule 52 and Rule 59 are not to be used when a party
is merely seeking to re-litigate a finding that was made during the course of trial. See Salazar, 685
F. Supp. 2d at 75. The court held that there was conflicting evidence in the record about whether
all of the work done by Mega Construction was within the scope of the contract with FMD, and
subsequently found that Baistar had failed to “offer evidence sufficient to prove by a
preponderance of the evidence that FMD was required by the terms of the subcontract to provide
millwork and fire doors.” See 2016 WL 3461183, at *10. The court regards Baistar’s argument

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that “[t]here is nothing in the record to suggest that the work was not in the scope[,]” see Motion
at 5 (emphasis added), as tantamount to a request that Baistar be relieved of its burden of proof.
Thus, the court has no basis upon which to alter or amend its findings of fact or conclusions of law
based on the argument presented by Baistar.
Similarly, Baistar has not offered any persuasive rationale for the court to “open the matter
for further proceedings” at this time. See Motion at 6. Rule 59 is not to be used to introduce new
evidence that was available at the time of trial. See Ashraf-Hassan, 2016 WL 2626833, at *11.
Baistar offers no explanation for why it did not call a representative from Mega Construction or
Dominion Millwork to testify during trial, and there is no allegation that any such representative
was unknown or unavailable to Baistar during the trial itself. Baistar cannot now seek to utilize
Rule 59 to save itself from litigation decisions it has since reconsidered. See Does v. Bush, No.
05–313, 2007 WL 2007614, at *1 (D.D.C. July 11, 2007) (“[T]he law is clear that a Rule 59(e)
motion is not . . . a means to bring before the Court theories or arguments that could have been
advanced earlier.”) (quoting W.C. & A.N. Miller Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C.
1997), aff’d sub nom. Hicks v. United States, No. 99–5010, 1999 WL 414253 (D.C. Cir. May 17,
1999)).
CONCLUSION
For the reasons outlined above, the court will deny Baistar’s motion. An appropriate Order
accompanies this Memorandum Opinion.

March 30, 2017

/s/
DEBORAH A. ROBINSON
United States Magistrate Judge