Electrolux Home Prod v. Whitesell Corp

Filing 728

ORDER denying 670 Motion to Vacate; denying 697 Motion for Hearing. Signed by Judge J. Randal Hall on 10/21/2015. (thb)

IN THE

UNITED

STATES

DISTRICT

SOUTHERN DISTRICT

OF

COURT

FOR THE

GEORGIA

AUGUSTA DIVISION

WHITESELL CORPORATION,

*

Plaintiff,

*

v.

*

CV

103-050

*

ELECTROLUX HOME PRODUCTS,

*

INC.,

*

HUSQVARNA,

A.B.,

and

HUSQVARNA OUTDOOR PRODUCTS,
INC.,

*
*
•

Defendants.

*

ORDER

Presently
Corporation's

before

the

Court

("Whitesell")

Prevent Manifest Injustice."

is

"Motion

Plaintiff
to

Vacate

Whitesell
Orders

Specifically, Whitesell

to

asks

this Court to vacate thirteen prior Orders entered in this
case by the then-presiding district judge based upon alleged

judicial misconduct.
motion to vacate

For the reasons that follow, Whitesell's

is DENIED.

I.

BACKGROUND

The allegations of judicial misconduct center around the

interaction between Whitesell's president and CEO, Neil L.
Whitesell,

District

and the

Judge

Honorable Dudley H.

Bowen,

for the Southern District

Jr.,

Senior

of Georgia,

who

presided over this case for ten years, from the time it was
filed on March 24, 2003, until he voluntarily withdrew from

the case on April

5,

2013.

According to Whitesell,

Bowen conducted two private meetings

Judge

in March 2008 and May

2009 with Mr. Whitesell and the principals of the Defendants,
Mr. Roger Leon and Mr. Don Market.

Counsel for the parties

were not present for these meetings.1

At both meetings, Judge

Bowen and Mr. Whitesell met alone at some point.

As

this

Court2 has pointed out previously,

the record

shows that the years prior to the March 2 008 meeting "were
subject to numerous starts and stops," and "when it appeared

beyond all hope that the parties would be able to

resolve

their disputes without judicial intervention, the litigation
was five years old."

(See Order of Nov.

12,

2013,

Doc. No.

1 Despite Whitesell's characterization that "Judge Bowen
excluded the parties' counsel and ordered that only the

parties' principals meet with him on March 5, 2008 in Atlanta"
(Whitesell's Mot.

to Vacate, Doc. No. 670, at 7 (emphasis in

original)), the attorneys for the parties were fully aware of
the meetings.
In fact, the record indicates that when Judge
Bowen first broached the subject of meeting with the parties
without counsel present, he asked whether counsel had any
objection. Whitesell's counsel responded: "None whatsoever."
(See Hr'g Tr. of Feb. 13, 2008, Doc. No. 345, at 40.)
Further, during a hearing two days prior to the first of the
two private meetings, Judge Bowen explained: "I want to get
your views on as much of this as possible. I set this matter
for today, quite frankly, in anticipation of my conference
with your clients' principals on Wednesday so I could get as
much background as I could absorb before that time." (See Hr'g
Tr.

of

March

3,

2008,

Doc.

No.

173,

at

3.)

During

the

hearing, Whitesell's counsel told Judge Bowen: "I think, as
you'll see on Wednesday, I have a client (Mr. Whitesell) that
is certainly willing to seek to resolve this matter." (See id.
at 192.)

2

The

undersigned,
indicated.

use

of

currently

"the

Court"

presiding

herein

judge,

refers

unless

to

the

otherwise

54 0, at

2.)

March 12,

As Judge Bowen pointed out

2008,

in an Order dated

settlement discussions between the parties

reached an impasse on December 12, 2007, and "a renewed cycle
of litigation ensued."

at 4 .)

(Order of Mar. 12, 2008, Doc. No. 172,

It appears that the impasse and an increased filing of

motions

in the case necessitated Judge Bowen's more active

involvement.3

The first private meeting was held in Atlanta on March 5,
2008.

According to Mr. Whitesell's affidavit, submitted with

the motion to vacate and dated August 11,

first

meeting,

Judge

Bowen

importance

Whitesell

business

to

revenue.

(Whitesell Aff. , Doc. No. 670, Ex. B, %% 9, 11, 13.)

relation

to

of

for

information

in

the

Mr.

during the

critical

Whitesell

about

"pressed"

2015,

Defendants'

Whitesell's

overall

Mr. Whitesell also avers that Judge Bowen became "suprisingly
angry" with him when he suggested that an outside arbitrator

could help resolve the matter.

(Id. % 19.)

3 See also Hr'g Tr. of Feb. 13, 2008, at 13 (Judge Bowen
stating, "These things would come up every so often and I deal
with it and then it would be out of mind because y'all would
go off and mediate or do something else, so I come into this
thing every six or eight months or a year and that is not the
best way to understand it and really have a good case
management perception of all of these issues[.] [S]o coming
back into it now I still have the same feeling that I did when
I started and that is both sides somehow and in some ways are
asking me to in one way or another get these folks to do
business with each other when it seems that they really don't
want to.") .

On March 12, 2008, Judge Bowen entered the first of the
thirteen challenged Orders.

The March 12, 2008 Order denied

leave to Whitesell to file a second amended complaint.

The

motion to amend had been filed over a year after the deadline

for filing amended pleadings had lapsed.4
12, 2008, Doc. No. 172.)

(See Order of Mar.

Judge Bowen also appointed Mr. Wade

Herring of Savannah, Georgia, to serve as Mediator and Special

Master

to

address

outstanding

issues

including

issues and issues involving outstanding invoices.
of April 23,

2008,

Doc.

No.

183.)

Mr.

discovery
(See Order

Herring was also to

serve as "Monitor and Executor of any compromise or settlement

agreement involving these issues."

(Id.

at 1-2.)

In his

recent affidavit, Mr. Whitesell contends that Mr. Herring made

threats,

was verbally abusive toward him,

and made comments

which suggested that Judge Bowen had shared with Mr. Herring
confidential

information

from

their

March

2008

meeting.

(Whitesell Aff. UK 22-26.)
On June 12, 2008, Judge Bowen entered the second of the
thirteen

Bowen's

challenged

"grave

Orders.

concerns

This

about

the

Order

validity,

enforceability, of the original contract."
2008, Doc. No. 191, at 2.)

4

expressed

Judge

and thus

the

(Order of June 12,

The Order invited the parties to

In addition to timeliness, Judge Bowen provides other

reasonable bases for denying the motion to amend, including
Whitesell's lack of diligence in discovery and prejudice to
Defendants.

(See Order of Mar.

12,

2008,

at 10.)

brief whether the original Supply Agreement was unenforceable
because
matter

the
of

parties

the

previously

failed

to

Agreement.

mentioned

clearly

(Id.

his

at

concerns

define

6.)
to

the

Judge

the

hearings of February 13 and March 3, 2 008

subject

Bowen

parties
(Hr'g Tr.

at

had
the

of Feb.

13, 2008, at 11; Hr'g Tr. of March 3, 2008, at 4), and to Mr.
Whitesell at his meeting with Judge Bowen on March 5, 2008

(Whitesell Aff.

K 15).

After briefing, Judge Bowen entered the Order of October

14,

2008,

the third challenged order,

which establishes the

four enforceable categories of parts subject to the parties'

supply agreements.

This Order has been subject to criticism

and procedural attack by Whitesell.5

(See, e.g., Whitesell's

Mot.

filed Dec.

21,

2009,

Whitesell's First Writ of Mandamus,

No.

10-14 93 8

Oct.

for Reconsideration,

25,

15688

Doc.

No.

(11th Cir.

2010); Whitesell's Second Writ of Mandamus,

(11th

Cir.

Reconsideration,

Nov.

5,

2012);

Whitesell's

250;

No.

Mot.

12-

for

filed Aug. 29, 2013, Doc. No. 510.)

On May 7, 2 009, the second of the two private meetings
Judge

Bowen held with the

parties'

principals

took place.

According to Mr. Whitesell, Judge Bowen was "quite hostile and

threatening"

toward

him

at

the

meeting

and

essentially

5 On December 21, 2009, Whitesell moved to reconsider
the October 14, 2008 Order.
(Doc. No. 250.) After addressing

each of the points raised by Whitesell, Judge Bowen denied the
motion.

(See Order of Feb.

17,

2010, Doc. No.

288.)

threatened that

Defendants,

if Whitesell did not

settle the lawsuit with

its case would "never see[]

[the] courtroom."6
Whitesell

(Whitesell Aff.

contends

that

the light of day in

U 30.)

following

the

meeting,

Judge

Bowen set upon a course to ensure that the case did not move

forward.

The

Court will

not

recount

the

entirety of

the

procedural history outlined in Whitesell's motion to vacate.

Suffice it to say, Whitesell views every ruling (or non-ruling
as

the

case

failure

may

be)

as

alleged

reprisal

for

Whitesell's

to settle the case.

Of note, on October 25,

2010, Whitesell filed a Petition

for Writ of Mandamus with the Eleventh Circuit, specifically
asking the Court of Appeals to vacate the October 14,
Order.

The petition also asks

2008

for an order directing the

district judge to vacate the appointment of Mr. Herring and to
enter

a

comprehensive

discovery

schedule

and

trial

date.

Finally, in dedicating 5 pages of its petition to the request,

Whitesell asks that the case be reassigned to another district

judge upon remand.
(11th Cir. Oct.

14938
here

(In re: Whitesell Corporation,

because

the

court's

Invalidation Order;

6

Mr.

25, 2010)

its

Whitesell

("Reassignment is necessary

patently

irregular

repeated referrals

avers

No. 10-

that

Judge

sua

to

Bowen

sponte SJ

the

special

made

other

aggressive and inappropriate comments. (Whitesell Aff. %30.)

master to

decide

jury questions;

its prolonged refusal

to

manage the case to allow Whitesell to properly prepare and try

its claims; and its disapproval expressed in its October 13,

2010

Order

that

settlement,

Whitesell's

intransigence

was

preventing

would cause a reasonable observer to have grave

concerns about whether the judge can provide Whitesell with a

fair trial of all properly triable claims.").)

The Eleventh

Circuit denied the petition upon finding that Whitesell had
not demonstrated that

its right

to the writ was

clear and

indisputable.
On November 5,
for

Writ

of

2012,

Mandamus

Whitesell filed a second Petition

in

the

Eleventh

Circuit,

this

time

requesting an order directing the district court to vacate the

stay of discovery and institute a discovery schedule.
petition,

Whitesell

levels

harsh

criticism

In the

against

Judge

Bowen, stating that "the doors to the federal court have been
closed to Whitesell."

reassigned upon remand.

Whitesell again asks that the case be

(In re: Whitesell Corporation,

12-15688 (11th Cir. Nov. 5, 2012)

No.

("The fact that the District

Court raised and decided substantive issues in disregard of

the most elementary principles governing summary judgment, the

District Court's apparent determination not to move this case
forward

through

discovery

and

trial,

its

insistence

that

Whitesell allow the Special Master to decide issues that are

improperly before the Special Master,

and its unwavering

insistence that Whitesell should settle the case, collectively
evidence

the

District

entitled

to

legally

Whitesell's

Court's

belief

mandated

entitlement

to

that

process

to

Whitesell

fairly

relief.").)

In

is

not

determine

particular,

Whitesell points out that Judge Bowen had "many hours" of offthe-record meetings with the Special Master,
Whitesell

contends

that

these

meetings

Mr.

Herring.

constituted

extra

judicial personal knowledge that serves to disqualify Judge
Bowen from presiding over the case.
On December 26,
mandamus

action

for

2012,

the Eleventh Circuit stayed the

sixty

days

to

afford

Judge

Bowen

opportunity to rule on four discovery-related motions.

an

Upon

receiving the Eleventh Circuit's order, Judge Bowen conducted
a two-hour status conference and then assisted the parties
over the course of nearly two weeks

discovery plan.
Ultimately,
denied as

(See Order of Feb.

in developing a

5, 2 013, Doc.

joint

No. 490.)

the second petition for a Writ for Mandamus was

moot.

On April 5, 2013, Judge Bowen withdrew from the case, and
the

case

was

reassigned

to

the

undersigned

judge.

This

Court's first order of business was to take up Whitesell's
motion for reconsideration of two Orders entered on March 25,

2010,

granting

partial

summary

judgment

in

favor

of

Defendants.7
rulings,

This

granting

reconsideration.

Next,

2013.

Court
in

vacated
part

portions

of

Whitesell's

(Order of June 24,

2013,

the

prior

motion

Doc. No.

for

499.)

the Court held a status conference on August

8,

At that time, the Court granted Whitesell leave to file

a motion to reconsider the October 14, 2008 enforceable parts

Order.

On November 12,

2 013,

after a thorough and sifting

review, this Court arrived at the same conclusions that Judge
Bowen had reached in his Order of October 14,

well-reasoned
2010.

In

Order

fact,

on

this

Reconsideration
Court

could

dated
find

a

February

17,

"substantial

ground for difference

of

interlocutory appeal.

(Order of Nov. 12, 2013, Doc. No. 540,

at 8

opinion"

not

2008, and in the

to certify the

case

for

(noting also that xx[i]t is not lost on the Court that

Whitesell

filed

a

Petition

Eleventh Circuit in 2010,
October 14,

for

Writ

of

Mandamus

with

the

arguing the erroneousness of

the

2008 [Order] , and the Eleventh Circuit did not see

fit to address the issue").)

In March 2014,
addressing,

count

the Court conducted a two-hour hearing
by

count,

Whitesell's

proposed

Second

Amended Complaint.

After the hearing and another round of

briefs on the issue,

the Court granted leave to Whitesell to

file a Second Amended Complaint albeit upon sustaining certain

7

The Orders of March 25,

2010 are numbers

eight of the thirteen challenged orders.

seven and

objections lodged by Defendants.

Doc.

No. 577.)

(See Order of May 28, 2014,

Since the Second Amended Complaint was filed

and a Joint Discovery Plan devised,

the parties

- with the

Court's active participation - have been engaged in extensive
discovery that is presently scheduled to close toward the end
of

2016.

II.

LEGAL

STANDARD

Whitesell asks this Court to vacate thirteen prior orders
entered by Judge Bowen.

Federal Rule of Civil Procedure 54(b)

provides that a court may revise any interlocutory order at

any time before the entry of

final judgment.8

Watkins v.

Capital City Bank, 2012 WL 4372289, at *4 (S.D. Ga. , Sept. 24,

2013); Lambert v. Briggs & Stratton Corp., 2006 WL 156875, at
*1

(S.D.

specify

Ga.

the

authority

Jan.

19,

2006).

standard

to

revise

prior

to

be

While

used

orders,

by

Rule

54(b)

courts

in

courts

in

does

not

exercising

the

Eleventh

Circuit have recognized that reconsideration is appropriate if

there is

(1)

an intervening change in controlling law,

newly discovered evidence,

or (3)

error or prevent manifest

injustice.

Hills Exchange,

8

While

LLC,

2014 WL 97359

Whitesell's

motion

(2)

the need to correct clear

Raiford v.

(S.D.

is

Ga.

titled

Jan.

a

National
8,

2014);

"Motion

to

Vacate," the motion is essentially a motion to reconsider the
prior orders, albeit for a matter extrinsic to the substantive
legal holdings underpinning each order.
10

accord Bryant v. Jones,

696 F. Supp. 2d 1313,

2010) ; Burger King Corp.

Supp.

2d

contends

1366,
that

1369
it

v.

(S.D.

would be

1320

Ashland Equities,

Fla.

2002).

(N.D. Ga.

Inc.,

Here,

manifestly unjust

to

181

F.

Whitesell
allow the

challenged orders to stand.

"The

reconsideration

of

extraordinary remedy and must

a
set

previous

order

forth facts

is

an

or law of

a

strongly convincing nature to induce the court to reverse its
prior decision."

Travis v. Sec'y, DOC, 2013 WL 5596395, at *1

(M.D. Fla. Oct. 11, 2013) (internal quotation marks omitted).

Importantly, especially in the present context, a motion for
reconsideration

should not

be

granted

to

offer

new

legal

theories or evidence that could have been presented before the

original decision.

Raiford, 2014 WL 97659, at *1 (citation

omitted).

III.

In

this

case,

it

is

ANALYSIS

Whitesell's

burden

to

show

its

allegations of judicial misconduct are of such a "strongly

convincing nature"
warranted.

that vacation of

the prior

orders

In considering the entirety of the case,

is

this

Court has determined that Whitesell is unable to carry its
burden because the motion is untimely and Whitesell has not
demonstrated manifest injustice.

11

A.

Timeliness

The incidents that give rise to Whitesell's complaint
allegedly took place in March 2008 and May 2009.

According to

Whitesell, the communications between Mr. Whitesell and Judge
Bowen caused Whitesell to believe that Judge Bowen set upon a
course of delaying the litigation and ensuring that the case

would not proceed to trial.

Whitesell looks to the lengthy

stay of discovery, the appointment and use of Mr. Herring, and
other

events

in

the

case

as

evidence

of

Judge

Bowen's

deliberate conduct against Whitesell.
From

this

Whitesell

had

should have

Court's
about

perspective,

Judge

Bowen's

any

conduct

been raised many years

ago.

complaint
could

that

have

Timeliness

and
is

a

factor in consideration of any motion for reconsideration.
Luian v.
4993982,

City of

Santa

Fe,

*16 (D.N.M. Aug.

F.

15, 2015)

Supp.

3d

, 2 015

WL

(citing 18B Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
& Procedure § 4478.1 (2d ed.) ("Stability becomes increasingly

important as the proceeding nears final disposition ....
Reopening should be permitted,

however,

only on terms that

protect against reliance on the earlier ruling.")); Rockland

Exposition, Inc. v. Alliance of Automotive Serv. Providers of
N.J. ,

894

F.

Supp.

2d

288,

339-340

(S.D.N.Y.

2012)

determining whether reconsideration is warranted,

may

also

consider

the

timeliness
12

of

the motion,

("In

the Court

a

tardy

movant's explanation for not presenting the evidence earlier,

and the potential prejudice to the opposing party which may
result

from

Roberts,

granting

978

F.2d

the

motion.");

17,

20-22

cf.

(1st

United

Cir.

States

1992)

v.

(listing

"tardiness" and "reasons underlying the tardiness" as factors
to be examined on a motion for reconsideration).

Whitesell offers that

it did not raise these judicial

misconduct allegations any earlier in the case because Mr.
Whitesell's attorneys had counseled against it at every turn.

Mr. Whitesell avers that his attorneys told him that raising
the matter would be improper and further prejudice his case.

(Whitesell Aff.

f 32.)

Whitesell's

explanation

history of this case.

falls

flat

in

light

of

the

The attack on Judge Bowen's conduct in

Whitesell's two mandamus actions clearly demonstrates that its

counsel was not worried about potential judicial retribution.

In

the

first

petition

for

writ

of

mandamus,

Whitesell

complains that Judge Bowen repeatedly disregarded controlling
procedural and substantive law, attacking the October 14, 2008

enforceable parts Order in particular.
Mandamus,

Case

No.

10-14938,

at

1-2,

(See Pet. for Writ of
20-24.)

Whitesell

further contends that Judge Bowen had "frustrated Whitesell's

right to prepare and try its case to a jury."

(Id. at 1, 23.)

It also states that Judge Bowen had improperly diverted key

fact issues to Mr. Herring.

(Id. at 2-3, 15-17.)

13

Finally,

Whitesell seeks reassignment of the case upon remand because
of

its

"grave

Whitesell

a

concerns"

fair

that

trial.

Judge

(Id.

at

Bowen

could not

25-29.)

offer

Specifically,

Whitesell argues that Judge Bowen's conduct was based in part
upon his "opinions regarding Whitesell's settlement position,"

opinions

informed

communications

by

with

Judge

Mr.

Bowen's

Herring.

alleged

(Id.

at

improper

26.)

The

allegations surrounding the private meetings could have been
raised in support of Whitesell's request for reassignment of
the

case.

Yet,

Whitesell

notably

failed

to

mention

the

alleged coercive and aggressive comments of Judge Bowen at
that time.

Whitesell had another opportunity to raise the judicial
misconduct

allegations

in

its

mandamus.

In this petition,

second petition for writ of

Whitesell again complains that

Judge Bowen ignored the Federal Rules of Civil Procedure and

violated Whitesell's due process rights.
for Writ of Mandamus,

(See generally Pet.

Case. No. 12-15688.)

Whitesell again

seeks reassignment upon remand, again accuses Judge Bowen of

improper communications with Mr. Herring regarding settlement
negotiations, and yet again, fails to mention the most serious
allegations against Judge Bowen.

(See id. at 23-28.)

The mandamus petitions show that Whitesell's attorneys

did

not

shy

misconduct.

away

from

Notably,

Mr.

lodging
Philip

14

allegations
J.

Kessler

of

judicial

from Detroit,

Michigan,

with whom the

Court became

familiar in

the past

couple of years, came into the case before the first mandamus

petition,

the

record.

It

filing

would

of

seem

which
that

was

had

his

Mr.

first

business

Whitesell

wanted

of
the

communications of the private meetings raised, he could have
hired

an

attorney

apparently did not.

Whitesell,

willing

to

do

so

at

that

point.

He

Indeed, while the Court has not met Mr.

there is no doubt that he is a savvy,

assertive,

intelligent businessman with deep litigation pockets capable
of finding an attorney to conduct his case in a manner that he
wishes.

The retainment of the most recent attorneys and local

counsel demonstrate that observation.9

9 Whitesell attaches an e-mail from an attorney of the
Hull Barrett law firm, William J. Keogh III, withdrawing his
firm's representation of Whitesell as local counsel.
The email, dated August 13, 2015, is heavily redacted.
The
unredacted portion reads: "Our firm cannot assist in the new
line of attack that is now being pursued.
I trust you
understand that position, as David Balser (former Whitesell
counsel) did previously.
Accordingly, our firm will be
withdrawing from this case and notifying the court of our
planned withdrawal."
(Whitesell's Reply Br., Ex. A, Doc. No.
705.)

Whitesell would have this Court conclude from this e-

mail that prior counsel, presumably Mr. Balser, refused to
raise the judicial misconduct allegations for "fear of
retribution from Judge Bowen." (Id. at 4-5.) The Court first
notes that Mr.

Balser had withdrawn from the case nine months

before the filing of the second petition for writ of mandamus,
wherein the judicial misconduct allegations were not raised.
More importantly, the ambiguity of the phrase "as David Balser
did previously" cannot be overstated. Indeed, the Court takes
more from the phrase "new line of attack," indicating that
this is the first time local counsel,

who had served in the

case since 2003, had heard the present allegations.
That
said, the e-mail is heavily redacted and void of context.
This Court attaches to it the significance it deserves under
these circumstances,

which is none.
15

The present motion to vacate based upon allegations of

judicial misconduct

that arose six and seven years ago is

simply

Whitesell's

untimely.

justification

for

the

untimeliness-that his attorneys feared retribution-is belied
by the mandamus petitions.

In short, Whitesell's explanation

of its delay in bringing these matters to the attention of the

Eleventh Circuit or even to this Court upon reassignment is
just not credible upon this Court's evaluation of the players
in this

case and the record.

B.

Manifest Injustice

In addition to being untimely, Whitesell's motion fails

to

establish

the

manifest

injustice

it

claims.

Manifest

injustice "ordinarily requires a showing of 'clear and obvious
error where

the

interests

of

justice

demand

correction.'"

McGuire v. Ryland Grp. , Inc. , 497 F. Supp. 2d 1356, 1358 (M.D.
Fla.

2007)

(quoting Prudential Sec, Inc. v. Emerson,

919 F.

Supp. 415, 417 (M.D. Fla.1996)).
In

this

case,

this

Court

has

not

only

independently

reviewed the challenged Orders and found the reasoning and
conclusions therein to be legally sound,

responsibly
Moreover,
Discovery

governed

and

thoroughly

reviewed

but the Court has

the

entire

case.

discovery has been on-going since February 2013.
is

by

framed

a

Joint

by

the

Second

Discovery

Amended

Plan,

both

Complaint

of

which

and

were

fashioned by the scope, limitations, and rulings contained in

16

many of the thirteen challenged Orders.

would

befall

landscape

the

of

this

parties

in

litigation

Thus,

dramatically
nearly

three

the harm that

changing

years

into

the
the

discovery process is immeasurable.
The
Order,

Court

will

now

dated March 12,

its complaint.

elaborate.

2008,

The

first

challenged

denied Whitesell leave to amend

(See Doc. No. 172.)

After reassignment, this

Court allowed the filing of the Second Amended Complaint.
Accordingly,

the Order of March 12, 2008 has been superseded

by subsequent case developments and vacating the Order now
would serve no purpose.

The second,
dated June 12,

third,

2008,

February 17, 2010,

fourth and sixth challenged Orders,

October 14,

October 31,

2008,

and

all deal with limiting the case to four

categories of enforceable parts.
& 288.)

2 008,

On November 12,

2013,

(See Doc. Nos. 191, 212, 216
this Court denied Whitesell's

motion for reconsideration of this ruling by Judge Bowen after

a thorough and sifting review of its own. (See Doc. No. 540.)
Accordingly, Whitesell has suffered no prejudice because the
Orders

have been reviewed and essentially affirmed on the

merits.

The seventh and eighth Orders, both dated March 25, 2010,
were reconsidered upon reassignment.

307.)

(See Doc.

Nos.

306

&

Whitesell also challenges Judge Bowen's denial of its

motion for reconsideration of these Orders,
17

dated October 13,

2 010, the ninth of the challenged Orders.

(See Doc. No. 363.)

These three Orders concern the duration term of the parties'
contractual obligations.

Because this Court granted in part

Whitesell's motion for reconsideration (see Order of June 24,
2013,

doc.

no.

499),

Whitesell

has

not

shown

that

it

has

suffered any prejudice because the Orders have been reviewed

independently.

parties'

Further, to change the duration terms of the

contractual obligations

would cause undue

prejudice

in any way at

to Defendants

this point

and the

ongoing

discovery process.
The

tenth

challenged

resolved the parties'

Order,

dated

November

4,

2010,

cross-motions for summary judgment on

the issue of Whitesell's attempt to raise prices of certain
parts in 2005 and 2007.

(See Doc.

No.

372.)

The twelfth

challenged Order, dated May 9, 2011, denied Whitesell's motion
for reconsideration of the Order.

(See Doc. No.

4 05.)

Upon

reassignment, this Court had occasion to review these rulings
and

found

the

reasoning and conclusions

"sound and unassailable now"
Orders were entered.

512, at 2.)

as

therein

to

be

as

they were at the time the

(See Order of Aug.

30,

2 013,

Doc.

No.

Accordingly, Whitesell has not shown that it has

suffered any prejudice because the Orders have been reviewed
and essentially affirmed on the merits.
The Order of March 25, 2009 (the fifth challenged Order -

doc.

no.

22 0)

terminated

the

18

parties'

motions

to

compel

without

prejudice.

The

Order

of

eleventh challenged Order - doc.

December

no.

order involving the Special Master.
ongoing,

3 76)

14,

is

2010

(the

a ministerial

Now that discovery is

it is difficult to see how allowing these Orders to

stand prejudices Whitesell.

Finally,

Whitesell

prevailed

thirteenth challenged Order of

on

June

the

8,

merits

2011

(see

in

the

doc.

no.

429), when Judge Bowen denied Husqvarna's motion for summary
judgment
parts.

concerning

the

Accordingly,

transition

Whitesell

has

of

Brunner

not

shown

and
how

Matrix
it

was

prejudiced thereby.
In

conclusion,

Whitesell

has

not

suffered

a

manifest

injustice through the entry of the challenged orders because
it

has

not

demonstrated

wxclear and obvious

error where

the

interests of justice demand correction.'"

See McGuire, 497 F.

Supp. 2d at 1358 (quoted source omitted).

Moreover, Whitesell

has not shown that any harm to
would befall Defendants,

it outweighs the harm that

and Whitesell

for that matter,

in

vacating orders which could revamp the entire case.

IV.

In its

MOTION

motion

FOR AN EVIDENTIARY

to vacate,

Whitesell

HEARING

states

entitled to an evidentiary hearing in this matter.

No. 670, at 23.)

that

it

is

(See Doc.

This compulsory language is used again in

Whitesell's separately filed "Request for Preliminary Oral
19

Argument," wherein Whitesell states that it is "entitled to an

evidentiary hearing during which [it] will present evidence in
support of

its Motion to Vacate."

Nevertheless,

this

Court

has

(Doc.

not

found

No.

any

697,

case

at

or

1.)

other

authority that mandates an evidentiary hearing on a motion for
reconsideration.

In

support

of

its

"entitlement"

hearing, Whitesell cites two cases.
Primerica Life Ins.

Co.,

to

an

evidentiary

The first case, Valcin v.

2011 WL 5037212

(M.D.

Fla.

Oct.

24,

2011), involved a plaintiff's claimed lack of understanding of

the settlement agreement reached in her case.

After notifying

the

the

district

plaintiff

court

refused

to

that

sign

she

had

the

settled

settlement

case,

documents.

plaintiff moved to set aside the dismissal of her case.
consideration of

that

the

the motion,

plaintiff's

the

district

allegations

court

regarding

the

the

The
In

determined

settlement

agreement were "sufficient to require an evidentiary hearing
on the matter, at which both plaintiff and her attorney must

testify."

Id. at *2.

The district court's announcement that

it would conduct an evidentiary hearing under the particular
circumstances of that case does not equate to a mandate that

an evidentiary hearing be held in this case.
would

require

a

tremendous

leap

in

Such a reading

interpretation

and

application from a case-specific ruling to the case at bar.

Moreover, there were no allegations of judicial misconduct in

20

the Valcin case.

In short,

the case has no relevance to the

instant one.

The second case, Univ. Commons-Urbana, Ltd. v. Universal

Constructors Inc.,
party's

challenge

allegations

of

court

allegations

to

an

arbitration

partiality on the part

arbitration panel.

district

304 F.3d 1331 (11th Cir.

of

2002), involved a
award

of

based

a member of

upon

the

Upon review of the arbitration award, the

first

allowed

discovery

partiality.

concerning

Following

this

period

the
of

discovery, the district court confirmed the arbitration award

without an evidentiary hearing.
the

district

court

did

not

Id. at 1335-3 6.

reach

the

issue

of

In the case,
whether

the

partiality of the panel member mandated an evidentiary hearing
because the district court,

"on its own initiative, chose to

revisit whether discovery should have been allowed at all.

decided that
incorrect

its

and that

initial
it

allow discovery was

should confirm the

without further debate."
The

decision to

Id.

It

arbitration award

at 1336.

Eleventh Circuit vacated the

arbitration award and

remanded the case for an evidentiary hearing after detailing
the facts demonstrating the partiality of the panel member.
The Eleventh Circuit stated:
or

partiality

is

not

"x [T]he mere appearance of bias

enough

to

set

aside

an

arbitration

award,' but it should have been enough to require the district

court to hold an evidentiary hearing."

21

Id.

at 1340

(quoted

source omitted).

Circuit's

Essential to this holding is the Eleventh

determination

that

the

challenging

party

had

presented prima facie grounds for vacatur of the arbitration
award based upon a

conflict of

Arbitration Act ("FAA").
"the district

court

first

under the

should have plunged headlong

strikes

Federal

As the court put it, at that point

evidentiary fact-finding."
What

interest

into the

Id. at 1341.

this

Court

about

the

Univ.

Commons-

Urbana case is that it involves a specialized area of the law
both

procedurally

Arbitration Act.

and

substantively,

i.e.,

the

Federal

The FAA expressly provides for the vacatur

of an arbitration award "' [w]here there was evident partiality
or

corruption

in the

(quoting 9 U.S.C.

arbitrators

§ 10(a) (2)) .

.

.

.

.'"

Id.

at

1338

In that context, the Eleventh

Circuit held that "evident partiality" "necessarily entails a
fact intensive inquiry" and thus an evidentiary hearing.

Id.

at

not

1345.

mandate

The Univ.

an

Commons-Urbana case,

evidentiary

hearing

outside

however,

the

does

context

of

a

Federal Arbitration Act case challenging the partiality of an
arbitration panel member.

Thus, Whitesell has failed to show

that an evidentiary hearing is required.
Turning to the case at bar,
have

an

evidentiary hearing

in

Court's ruling as announced supra.

there is simply no need to
light

of

the

bases

of

the

There is nothing more that

can be presented that would excuse the untimeliness with which

22

this

motion

orders

was

are

filed

or

manifestly

Whitesell has

demonstrate

unjust

to

that

the

challenged

Whitesell.

Moreover,

simply not established a prima facie case of

judicial misconduct with nothing more than the self-serving

affidavit

of

particularly

a

party

where

litigant

the

submitted

challenged

continue to be legally sustainable.

7

rulings

years

have

late,

been

and

Accordingly, Whitesell's

motion for an evidentiary hearing regarding this matter (doc.
no.

697)

is DENIED.

V,

CONCLUSION

Upon the foregoing, Whitesell's "Motion to Vacate Orders
to

Prevent

ORDER
October,

Manifest

ENTERED

Injustice"

at

Augusta,

(doc.

no.

Georgia,

670)

is

this £X-/

DENIED.

day

of

2015.

HONQR^BLE'J. RANDAL HALL
UNITEDSTATES

DISTRICT

5UTHERN DISTRICT

23

JUDGE

OF GEORGIA