Electrolux Home Prod v. Whitesell Corp

Filing 1354

ORDER denying 1296 Motion for Reconsideration. The Court reaffirms the entry of summary judgment in favor of Defendants as stated at doc 1275 . Further, the Court finds that the information provided in the submissions at docs 1281 and 1287 , as specified herein, will be used to compute prejudgment interest and the total amount of the judgments. The Court will not enter judgment on these claims at this time. Signed by Chief Judge J. Randal Hall on 1/30/2020. (pts)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

WHITESELL CORPORATION,

*
*

Plaintiff,

*
*

V.

*

CV 103-050

*

ELECTROLUX HOME PRODUCTS, INC.,
HUSQVARNA, A.B., and HUSQVARNA
OUTDOOR PRODUCTS, INC.,

*
*
*
*

Defendants.

ORDER

On November 20, 2019, the Court resolved the parties' cross-

motions for summary judgment with respect to their separate claims
concerning Annual Rebates. (Doc. No. 1275.)

The cross-motions for

summary judgment called upon the Court to resolve the entitlement
to

Annual

Rebates

as

a

matter

of

law.

The

Court

resolved

the

matter in Defendants' favor, concluding that they are entitled to
a 2% Annual Rebate

of

the

total receipts

purchased from Plaintiff from 2003 to 2014.

for all parts

(Id. at 11.)

they

Then,

because the parties did not dispute that damages could be readily
calculated from Plaintiff's discovery responses or that Defendants
are entitled to pre-judgment interest at a rate of 7% per annum as

provided in O.C.G.A. § 7-4-15 and § 7-4-2(a)(1)(A), the Court
directed Defendants to submit proposed Judgments for the Court's

consideration, computing pre-judgment interest as of December 31,
2019.

(Id. at 11-13.)

Plaintiff was accorded seven (7) days

thereafter "to object to any erroneous calculations."

(Id. at

13.)

On December 4 and 9^^, Defendants Husqvarna and Electrolux

respectively submitted their Proposed Judgments.
& 1287.)

(Doc. Nos. 1281

On December 10, 2019, Plaintiff objected to the Proposed

Judgments but not on the basis of erroneous calculations.
No. 1293.)

(Doc.

Instead, Plaintiff argued for the first time that pre-

judgment interest should not be awarded because the Annual Rebates
were taken by Defendants rather than paid by Plaintiff.

Plaintiff

also argued that entry of judgment on Defendants' Annual Rebate

claims should be stayed pending resolution of the entirety of the
case because Plaintiff may be entitled to a set-off should it

prevail on its remaining claims.
amended

objection

to

the

The next day. Plaintiff filed an

Proposed

paragraph summarily stating

Judgments,

that there

adding

a

single

exist material factual

disputes regarding how the rebates are to be calculated and upon

what purchases Defendants are entitled to rebates. (Doc. No. 1295,
H 13.)
On

December

11,

2019,

Plaintiff

also

filed

a

reconsideration of the Order regarding Annual Rebates.
1296.)

motion

for

(Doc. No.

Through its motion for reconsideration. Plaintiff claims

that because Defendants materially breached the contracts between

them, they cannot seek enforcement of the Annual Rebate provision.
More

particularly,

Plaintiff

claims

that

Defendants

forfeited

their right to recover from Plaintiff under any of their agreements
because of Defendants' failure to transition certain parts (that

is,

assuming

a

jury

Defendants' fault).

decides

the

Plaintiff

also

failure

to

reiterates

transition

is

its objections

lodged in its responses to the Proposed Judgments regarding setoff

and

the

impropriety

of

awarding

pre-judgment

interest.^

Because Plaintiff included uninvited reconsideration grounds in

its responses to the Proposed Judgments, which are restated in its
motion for reconsideration, the Court will only address the motion
for reconsideration hereafter.

Plaintiff filed the motion for reconsideration within twenty-

eight days of the Court's Order; the Court will therefore analyze
the motion under Federal Rule of Civil Procedure 59(e).

See Brown

V. Spells, 2011 WL 4543905, at *1 (M.D. Ga. Sept. 30, 2011); accord
Mahone

v.

Ray,

326

F.3d

1176,

1177

n.l

(11th

Cir.

2003).

Reconsideration under Rule 59(e) is justified only when there is:

"(1) an intervening change in controlling law; (2) the availability
of new evidence; or (3) the need to correct clear error or prevent

^ In the motion for reconsideration. Plaintiff also includes its
summary statement that there are material factual disputes
regarding how the rebates are to be calculated and upon what
purchases the Defendants are entitled to rebates.

manifest injustice."

Schiefer v. United States, 2007 WL 2071264,

at *2 (S.D. Ga. July 19, 2007).
theory that the

Plaintiff is proceeding under the

Court must correct a clear error or prevent

manifest injustice.

"Reconsideration of a previous order is an extraordinary
remedy, to be employed sparingly."

Arinbuster v. Rosenbloom, 2016

WL 1441467, at *1 (S.D. Ga. Apr. 11, 2016) (citation and internal

quotation marks); Spellman v. Haley, 2004 WL 866837, at *2 (M.D.
Ala.

Feb.

reconsider

22,

as

2002)

a

("[L]itigants

knee-jerk

reaction

should

to

not

an

use

motions

adverse

to

ruling.").

Because it "is not an appeal, . . . it is improper on a motion for
reconsideration to ask

the

Court to rethink

already thought through — rightly or wrongly."

what the

Court has

Armbuster, 2016 WL

1441467, at *1 (citation and internal quotation marks omitted).
Moreover, "additional facts and arguments that should have been

raised in the first instance are not appropriate grounds for a
motion for reconsideration."

Gougler v. Sirius Prods., Inc., 370

F. Supp. 2d 1185, 1189 (S.D. Ala. 2005) (citation omitted); see
also Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc., 763

F.2d 1237, 1239 (11th Cir. 1985) (cautioning against use of motion
to reconsider to afford a litigant "two bites at the apple");
Arthur V. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (Rule 59(e)
"cannot be

used

to relitigate

old

matters,

raise

argument or

present evidence that could have been raised prior to the entry of

judgment." (quoted source omitted)).

Further, ''the moving party-

must set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision."

Burger King Corp.

V. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla.
2002).

And, ultimately, "the decision to grant a motion for

reconsideration

'is

district judge.'"

committed

to

the

sound

discretion

of

the

Townsend v. Gray, 505 F. App'x 916, 917 (11th

Cir. 2013) (quoting Region 8 Forest Serv. Timber Purchasers Council
V. Alcock, 993 F.2d 800, 806 (11th Cir. 1993)).

At the outset, the Court will not reconsider imposition of
pre-judgment
regarding

matters

interest

or

whether

the calculation of

were

not

raised

or

there

exist

factual

issues

award.

These

Plaintiff's

briefs

the Annual Rebate

disputed

respecting the Annual Rebate issue.

in

In fact, the Court notes that

Plaintiff sought pre-judgment interest in its favor had the Court
determined

that

Defendants

must

reimburse

Annual

actually took during their business relationship.

Rebates

they

Moreover, in

their summary judgment briefs. Defendants calculated the amount of

Annual Rebates due for every year from 2003 to 2014, the amount of
Annual Rebate actually taken, if

any, and the amount of pre-

judgment interest earned on the difference as of August 1, 2018.
These calculations are based upon exhibits produced by Plaintiff
in

discovery

showing

the

annual

monetary

receipts

for

parts

purchased by each of Defendants' plants and the amount of Annual

Rebates taken by Defendants at each plant.

In response, Plaintiff

did not dispute the calculations or the information upon which

they were based.

In fact, Plaintiff used the same information to

calculate what it believed Defendants owed to it for Annual Rebates

actually
therefore

taken,

plus

waived

information

Plaintiff's

and

its

pre-judgment
ability

Defendants'

argument

to

interest.
now

dispute

calculations

concerning

Plaintiff

based

entitlement

the

underlying

thereon.

to

has

And,

pre-judgment

interest simply comes too late in the game.
The Court now turns to Plaintiff's argument that Defendants

are not entitled to judgment on the Annual Rebates claim until the
fact finder determines which party is at fault for the failure to

transition parts.

Again, this is a new argument.

Indeed, the

attribution of fault was not a prerequisite to Plaintiff's claimed

recovery of Annual Rebates in its own motion for summary judgment.
Be that as it may, the Court also finds that the authority cited
by Plaintiff is inapposite.

For instance. Plaintiff cites Moore

V. Grady Memorial Hosp. Corp., 778 F. App'x 699 (11^^ Cir. 2019),

for the proposition that a party cannot recover on a contract if
it first materially breaches that contract.

Indeed, the Moore

court explained:
The

effect

of

a

material

or

substantial

breach

of

contract is, generally, to preclude the party guilty of
the first such breach from recovering on the contract
and to render him or her liable to the injured party for

the resulting loss or injury.

Under Georgia law, where

a party refuses to abide by a contract provision, that
party is properly considered to have repudiated the
contract and as such is properly considered to have
breached the contract, which estops that party from
seeking to enforce the provisions of the agreement.
Id. at 706 (citations omitted).

Plaintiff cites this general maxim

to explain that if Defendants are found to have materially breached
the agreements between them by failing to transition certain parts,
then Defendants cannot seek to enforce the Annual Rebate provision

in the agreements.

Plaintiff, however, fails to cite the next

proposition of law in Moore;

"However, [w]hen [the other] party

knows a contract has been breached and continues to perform or

accept performance under the contract, that party can be said to
have made an election" and "has ended its right to refuse to

perform." Id. (quoted source omitted).
In the case at bar. Plaintiff and for that matter Defendants

continued to perform under the agreements for several years in

spite of the knowledge that Defendants were not fully transitioning
required or substitute parts.

It is simple.

Neither party

repudiated the contract; the parties are therefore left with their
claims of breach of contract and resulting damages.2 As the Georgia

Court of Appeals explains:

"Generally, one injured by [a] breach

2 Plaintiff states in its Reply Brief that Defendants contend
Plaintiff has waived the ability to seek damages against Defendants
for the failure to transition because it continued to perform under

the agreements.

(See Doc. No. 1334, H 18.)

This is not at all

Defendants' contention nor this Court's ruling.

of

contract

has

the

election

to

rescind

or

continue

contract and recover damages for the breach."

under

the

Forsyth Cnty. v.

Waterscape Servs., LLC, 694 S.E.2d 102, 111 (Ga. Ct. App. 2010);
see also Glower v. Orthalliance, Inc., 337 F. Supp. 2d 1322, 1331.
(N.D. Ga. 2004) ("If the breach is material, the non-breaching

party must choose one of two inconsistent rights;

they may either

allege a total breach, terminate the contract and bring suit, or
honor the contract, declare the default only a partial breach, and

recover those damages caused by that partial breach.").

And,

particularly relevant here. Defendants' counterclaim for recovery
of a 2% Annual Rebate on the actual total sales between the parties
from 2003 to 2014 is unrelated to Plaintiff's claim for damages

based upon sales that did not occur, i.e.. Defendants' failure to
transition substitute parts.

Accordingly, Plaintiff's assertion

that the Court must await the factual determination of fault on

the non-transition issue before awarding damages on the Annual

Rebate provision is not legally supported.^

Upon the foregoing. Plaintiff's motion for reconsideration of
this

Court's Order of

November

20,

2019 regarding

the

Annual

Rebates provision (doc. 1296) is DENIED.

2 Essentially, the Court has already held to the contrary in its
Order of November 20, 2019, wherein it found that the Annual Rebate

Provision (i.e., Paragraph 7 of the Settlement Memorandum) is not
conditioned on the full transition of parts before the Annual
Rebate must be paid. (Doc. No. 1275, at 10.) Thus, an attribution
of fault on the non-transition issue is irrelevant.

The Court hereby reaffirms the entry of summary judgment in

favor of Defendants on Count I of their respective Counterclaims
concerning

their

entitlement

to

Annual

Rebates

and

against

Plaintiff on Count V of its Second Amended Complaint concerning
the same.

That is, Defendants are entitled to a 2% Annual Rebate

of the total receipts for all parts purchased from Plaintiff from
2003 to 2014 plus pre-judgment interest.

The Court further finds

that the information provided in the submissions presenting the
Proposed Judgments (doc. nos. 1281 & 1287), specifically in the
columns "Rebate Due," "Rebate Taken," and "Under/(Over) Payment,"
will be used to compute prejudgment interest and the total amount
of the judgments.

Upon further consideration, however, the Court

will not enter judgment on these claims at this time.
ORDER ENTERED at Augusta, Georgia, this

of January,

2020.

J.

HAL^, CHI^F'JUDGE

UNITEy STATES DISTRICT COURT
lERN DISTRICT OF GEORGIA