Brewer Body Shop, LLC et al v. State Farm Mutual Automobile Insurance Company et al
ORDER denying #109 Motion for Reconsideration. Signed by Judge Gregory A. Presnell on 5/12/2016. (ED)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
BREWER BODY SHOP, LLC, et al.,
Case No: 6:14-cv-6002-Orl-31TBS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, et al.,
This matter comes before the Court on the Motion for Reconsideration (Doc. 109) filed by
the Plaintiffs and the responses in opposition (Doc. 114, 116-18) filed by certain Defendants.
On March 7, 2016, this Court entered an order (Doc. 106) (henceforth, the “Order”)
granting in part a number of motions to dismiss filed by various defendants. The Order addressed
only the Plaintiffs’ antitrust claims, which were dismissed with prejudice. (Order at 17). The
Plaintiffs’ state law claims had been referred to Magistrate Judge Smith for disposition by way of
a Report and Recommendation. (Order at 1). The Plaintiffs now seek reconsideration of the
The federal rules do not specifically provide for the filing of a “motion
for reconsideration.” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert.
denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992). However, it is widely recognized
that Rule 59(e) encompasses motions for reconsideration. 11 CHARLES ALAN WRIGHT ET
FEDERAL PRACTICE & PROCEDURE § 2810.1 (3d ed. 2012). In the interests of finality and
conservation of scarce judicial resources, reconsideration is an extraordinary remedy, to be
employed sparingly. U.S. v. Bailey, 288 F.Supp.2d 1261, 1267 (M.D. Fla. 2003). A busy district
court need not allow itself to be imposed upon by the presentation of theories seriatim. Union
Planters Nat. Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir. 1982).1 The decision to alter or
amend a judgment is committed to the sound discretion of the district court. O’Neal v.
Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992). Appropriate circumstances
for reconsideration include situations in which the Court has obviously misapprehended a party’s
position, the facts, or mistakenly has decided an issue not presented for determination. Anderson
v. United Auto Workers, 738 F.Supp. 441 (D. Kan. 1990).
Generally speaking, the authorities recognize four basic grounds upon which a Rule 59(e)
motion may be granted.
First, the movant may demonstrate that the motion is necessary to
correct manifest errors of law or fact upon which the judgment is
based. Of course, the corollary principle applies, and the movant’s
failure to show any manifest error may result in the motion’s denial.
Second, the motion may be granted so that the moving party may
present newly discovered or previously unavailable evidence. Third,
the motion will be granted if necessary to prevent manifest injustice.
Serious misconduct of counsel may justify relief under this theory.
Fourth, a Rule 59(e) motion may be justified by an intervening
change in controlling law.
11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2810.1 (3d ed. 2012).
Parties cannot use a Rule 59(e) motion to relitigate old matters, Michael Linet, Inc. v.
Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005), or to raise new legal arguments
which could and should have been made during the pendency of the underlying motion, Sanderlin
v. Seminole Tribe of Florida, 243 F.3d 1282, 1292 (11th Cir. 2001). Where a party attempts to
introduce previously unsubmitted evidence in support of a motion to reconsider, the party must
make some showing that the evidence previously was unavailable. Mays v. U.S. Postal
Service, 122 F.3d 43, 46 (11th Cir.1997)(citing, inter alia, Engelhard Indus. v. Research
Instrumental Corp., 324 F.2d 347, 352 (9th Cir.1963), cert. denied, 377 U.S. 923, 84 S.Ct. 1220,
12 L.Ed.2d 215 (1964)). To avoid repetitive arguments on issues already considered fully by the
court, rules governing reargument are narrowly construed and strictly applied. St. Paul Fire &
Marine Ins. Co. v. Heath Fielding Ins. Broking Ltd., 976 F.Supp. 198 (S.D.N.Y.1996).
The Plaintiffs’ primary argument in favor of reconsideration is that, sometime after the
filing of their Amended Complaint (Doc. 85), the Plaintiffs “obtained” what they characterize as
“direct evidence of price fixing by the named Defendants and unnamed co-conspirators.” (Doc.
109 at 1-2). The Plaintiffs seek to have the Court reconsider the Order and grant them leave to
amend their pleading to add in this evidence. (Doc. 109 at 10).
The Plaintiffs’ effort must fail, for several reasons. As noted above, to justify
reconsideration based on newly discovered evidence, a party must make some showing that the
evidence was previously unavailable. The Plaintiffs here have made no such showing. The
closest they come is a statement that the new evidence was unavailable at the time the Amended
Complaint was filed. However, the Amended Complaint was filed on May 18, 2015, while the
Order was not entered until nearly ten months later – on March 7, 2016. The Plaintiffs offer no
explanation for their failure to bring this information before the Court during that time.
Even if they had provided a legitimate justification for their delay in raising it, the
Plaintiffs’ “direct evidence of price fixing” would not suffice to save their antitrust claims, which
were dismissed due to a failure to properly allege the existence of a collusive agreement to fix
prices. (Doc. 106 at 7-15). The evidence consists of a statement from an individual employed
by one of the Defendants. The Plaintiffs do not provide an affidavit or a transcript of the
statement. Instead, they paraphrase:
Plaintiffs obtained a statement from a Progressive employee who
stated unequivocally that body shops have no say in the setting of
their own labor rates, that the insurance companies “get together at
big meetings” to set body shop labor rates, and that the insurance
companies uniformly apply the labor rates agreed upon at these
meetings. This representative even identified when the next such
meeting was going to occur.
(Doc. 109 at 1-2). These vague assertions do not add any weight to the Plaintiffs’ existing
allegations. Among other shortcomings, the statements do not identify any Defendants (aside
from, presumably, Progressive) that allegedly participated in the agreement to fix prices, or even
what states the agreement covered. The speaker who made the statements is not identified – even
by job title – and thus there is no basis for a determination that the statement was made by
someone with actual knowledge of the underlying facts. And the statement obviously has not
been reduced to an admissible form. See Provident Life & Acc. Ins. Co. v. Goel, 274 F.3d 984,
1000 (5th Cir. 2001) (“Additionally, commentators have described as ‘self-evident’ the
requirements that newly discovered evidence be ‘both admissible and credible,’ as there is no
reason to set aside a judgment on the basis of evidence that could not be admitted at a new trial or,
if admitted, would be unconvincing.” (quoting 11 JAMES WM. MOORE ET AL., MOORE’S FEDERAL
PRACTICE ¶ 60.42 (3d ed. 1997)). Even when combined with a similarly vague statement from
a State Farm employee that was included in the Amended Complaint, 1 this “direct evidence” is
not enough to plausibly suggest that the Defendants entered into an agreement to fix prices.
More specifically, the Amended Complaint contained the following allegations:
A State Farm employee has admitted to Plaintiff ICON that State
Farm deliberately suppresses labor rates and the purported survey
results in a “prevailing competitive price” is actually “whatever
State Farm wants it to be.” This employee has further admitted State
The Plaintiffs also purport to demonstrate several “inaccurate representations” underlying
the order that dismissed their antitrust claims. Upon review, the Court finds that none of the
Plaintiffs’ arguments are meritorious. The Plaintiffs state that the Court “relie[d] upon the
absence of allegations that State Farm kept its ‘market rate’ a secret to support the conclusion that
there [were] insufficient facts to support an allegation of conspiracy.” (Doc. 109 at 3). The
Plaintiffs then list numerous allegations from the Amended Complaint that, the Plaintiffs argue,
“give rise to an inference of sub rosa information sharing amongst the Defendants.” However,
none of the passages quoted by the Plaintiffs in their motion for reconsideration actually show that
State Farm kept (or tried to keep) its market rate secret. Instead, they show that State Farm did
not make its market rate publicly available, or that State Farm kept other information (such as
survey results and training manuals) secret. (Doc. 109 at 3-6).
Similarly, the Plaintiffs purport to demonstrate that the Court overlooked allegations
“indicating the Defendants actually belong to the insurer trade associations or similar
organizations, which provide opportunities to conspire” by quoting passages from the Amended
Complaint showing a number of organizations to which some of the Defendants belonged. (Doc.
109 at 6-9). However, the Court’s concern was that the Plaintiffs had not alleged that there was
any one organization to which all of the Defendants belonged, as would appear to be necessary to
Farm purposefully asserts reliance upon out-of-date information,
such as labor rates “about twenty years old,” entered into the
“survey” long ago
In speaking of the Louisiana Attorney General’s action against State
Farm, this same employee has admitted that everything in the
Complaint is true, “we do all that,” “every iota is the truth . . . .
when you read [the complaint], it’s like, ‘that’s us.’”
(Doc. 85 at 32).
support the Plaintiffs’ “opportunity to conspire” theory. (Order at 13). More importantly, as
noted in the Order, participation in trade associations and similar organizations provides no
indication of a conspiracy. See American Dental Association v. Cigna Corp., 605 F.3d 1283,
1295 (11th Cir. 2010). As such, the Defendants’ membership in such organizations is not
relevant to the Plaintiffs’ effort to state a claim for price-fixing.
Finally, the Plaintiffs complain that the Order omitted consideration of the so-called
“admission” from a State Farm employee, discussed supra. As detailed above, the State Farm
employee’s statement was too insubstantial to merit much consideration in the Order; nonetheless,
it was addressed in a footnote. (See Order at 12 n. 6).
In consideration of the foregoing, it is hereby
ORDERED that the Motion for Reconsideration (Doc. 109) is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on May 12, 2016.
Copies furnished to:
Counsel of Record
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