Essex Insurance Company v. DiMucci Development Corp. of Ponce Inlet, Inc.

Filing 133

ORDER denying 128 Motion for Reconsideration. Signed by Judge Roy B. Dalton, Jr. on 5/2/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
EVANSTON INSURANCE COMPANY,
Plaintiff,
v.

Case No. 6:15-cv-486-Orl-37GJK

DIMUCCI DEVELOPMENT CORP. OF
PONCE INLET, INC.,
Defendant.
ORDER
Plaintiff Evanston Insurance Company (“Evanston”) initiated this insurance
coverage dispute seeking a declaratory judgment that it had no duty to defend its
insured, Defendant DiMucci Development Corporation of Ponce Inlet, Inc. (“DiMucci”),
in an underlying state court action (“Underlying Action”) because, inter alia, DiMucci
breached the insurance policies by allegedly failing to: (1) submit certificates of insurance
in compliance with the independent contractors conditional endorsement (“Count IX”);
and (2) cooperate with Evanston in the selection of defense counsel (“Count X”). (See
Doc. 42, ¶¶ 77–80, 81–86.) DiMucci moved for summary judgment on both Counts. (See
Doc. 69.)
On February 6, 2017, the Court entered an Order granting DiMucci’s motion for
summary judgment (Doc. 110), finding, inter alia, that Count X failed as a matter of law
because Evanston had not demonstrated that it was substantially prejudiced by
DiMucci’s

alleged

non-cooperation.

(Doc.

126

(“February

6

Order”).)

On

February 16, 2017, Evanston moved for reconsideration and clarification of the
February 6 Order (Doc. 128 (“Motion for Reconsideration”)), to which DiMucci
responded (Doc. 129). Upon consideration, the Court finds that the Motion for
Reconsideration is due to be denied.
Reconsideration under Federal Rule of Civil Procedure 59(e) is appropriate on the
basis of: (1) an intervening change in controlling law; (2) newly discovered evidence; or
(3) clear error or manifest injustice. See Sussman v. Salem, Saxon & Nielsen, P.A.,
153 F.R.D. 689, 694 (M.D. Fla. 1994) (noting that courts have generally granted such relief
in those three circumstances). 1 Rule 59, however, cannot be used to “relitigate old
matters, raise argument or present evidence that could have been raised prior to the entry
of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763
(11th Cir. 2005). Denial of a motion for reconsideration is particularly warranted when a
party has failed to articulate any reason or the failure to raise the issue at an earlier stage
in the litigation. See Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998). “The
Court’s reconsideration of a previous order is an extraordinary remedy, to be employed
sparingly.” Mannings v. Sch. Bd. of Hillsborough Cty., 149 F.R.D. 235, 235 (M.D. Fla. 1993).
“[T]he decision to grant such relief is committed to the sound discretion of the district
judge . . . .” Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806

Because Evanston filed its Motion for Reconsideration within twenty-eight days
of the Dismissal Order Rule 59(e) controls. See Fed. R. Civ. P. 59(e); see also United States
v. E. Air Lines, Inc., 792 F.2d 1560, 1562 (11th Cir. 1986) (noting that the prior version of
Rule 59(e) applies when a motion is filed within ten days of judgment).
1

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(11th Cir. 1993).
Evanston seeks reconsideration of the February 6 Order on the basis of clear error,
contending that: (1) it was based on insufficient evidence with respect to Count IX; and
(2) the Court ignored record evidence in deciding Count X. (Doc. 128, pp. 2–3.) The Court
disagrees. First, Evanston raises, for the first time, argument with respect to Count IX that
should have been raised prior to the entry of judgment. (See id. at 4–6.) This is
impermissible. See Lockard, 163 F.3d at 1267. Second, Evanston attempts to support its
arguments regarding Count X with evidence that it failed to include in its summary
judgment briefing. (See Doc. 128, pp. 6–9.) As such, the Court did not err in granting
summary judgment in favor of DiMucci.
Accordingly, it is hereby ORDERED AND ADJUDGED that Evanston Insurance
Company’s Motion for Reconsideration and Clarification as to this Court’s Order
[Doc. 126] (Doc. 128) is DENIED, including relief not specifically addressed in this Order.
DONE AND ORDERED in Chambers in Orlando, Florida, on May 2, 2017.

Copies:
Counsel of Record

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