Electrolux Home Prod v. Whitesell Corp
Filing
896
ORDER denying 880 Motion Entry of Order Reserving Ruling on Award of Pre-Judgment Interest; denying 886 Motion for Hearing. Signed by Chief Judge J. Randal Hall on 05/15/2017. (thb)
IN THE UNITED
STATES DISTRICT
SOUTHERN DISTRICT OF
COURT
FOR THE
GEORGIA
AUGUSTA DIVISION
WHITESELL CORPORATION,
*
Plaintiff,
*
*
*
ELECTROLUX HOME PRODUCTS,
103-050
*
INC., HUSQVARNA, A.B., and
HUSQVARNA OUTDOOR PRODUCTS,
INC.,
CV
*
*
*
•
Defendants.
*
ORDER
Presently
Corporation's
reserving
before
the
("Whitesell")
this
interest on its
Court's
claims,
Court
motion
ruling on
is
Plaintiff
for
an
entry
award of
Whitesell
of
an
prejudgment
liquidated and unliquidated,
after the evidence has been presented.
order
until
Defendants argue that
this Court has already ruled upon the issue.
The matter has
been fully briefed.
The Court has allowed an interest claim under O.C.G.A.
§
7-4-16 on Whitesell's only arguable liquidated damages claim:
Count VI, the Failure to Pay Invoices.
(See Order of May 28,
2014, Doc. No. 577, at 14-16 (overruling Defendants' objection
to the inclusion of an interest claim in Paragraph 199 of the
Second Amended Complaint).)
With respect to the unliquidated
damages
the
claims,
however,
Court
has
disallowed
the
inclusion of a claim of interest under both O.C.G.A.
(see id.) and O.C.G.A.
doc. no. 818) .
§ 7-4-16
§ 13-6-13 (see Order of May 17, 2016,
Whitesell does not take issue with the Court's
ruling with respect to O.C.G.A. § 7-4-16; rather, its focus is
on its claim for prejudgment interest under O.C.G.A.
§ 13-6-
13.
Background
On May 17, 2016, this Court disallowed Whitesell's claim
for
prejudgment
interest
under
O.C.G.A.
finding that it was a new claim.
§
13-6-13
upon
(Doc. No. 818, at 4.)
a
By
way of further explanation, when Whitesell filed its motion to
amend the complaint in January of 2014,
the proposed Second
Amended
included
Complaint
attached
thereto
the
word
winterest" in the damage allegation of each substantive cause
of action.
(See Doc. No.
hearing on March 27,
amendment.
546,
Ex. A.)
The Court convened a
2014 to address Whitesell's proposed
The only mention of "interest" during the hearing
was Whitesell's reference to its claim for 18% interest on a
commercial account under O.C.G.A.
§ 7-4-16 in relation to the
count involving Defendants' alleged failure to pay invoices.
(Tr.
at
33-37,
Doc.
No.
567.)
Then,
after
the hearing,
Whitesell submitted its proposed Second Amended Complaint in
compliance with the Court's rulings in the hearing.
No. 568.)
(See Doc.
That submission of April 10, 2014 includes only a
2
claim for "18% interest as permitted by O.C.G.A.
§ 7-4-16,"
which is added to the damage allegation of each count.
id.)
No.
(See
Defendants objected to this claim of interest.
569.)
(Doc.
In response thereto, Whitesell points out that it
had made a claim for interest in its proposed Second Amended
Complaint (filed in January 2014), had noted the claim again
in the hearing without objection from Defendants during the
March 27th hearing,
and had "cited the statute pursuant to
which interest would be available" in the April 10th submission
of its proposed Second Amended Complaint.
18.)
As stated,
Second Amended
any reference to
Complaint
of
April
(Doc. No. 573, at
interest in its proposed
10,
2014
cites
only
to
In ruling upon Defendants' objections on
O.C.G.A.
§ 7-4-16.
May 28,
2014, this Court directed Whitesell to strike
its
claim of interest in all but Paragraph 199, which pertains to
the
only
liquidated
Nevertheless,
when
damages
Whitesell
claim.
(Doc.
filed
its
No.
Second
577.)
Amended
Complaint in conformance with the Court's Order of May 28,
2014, the damages allegation in each cause of action includes
the word "interest" where it did not appear in its April 10,
2014 submission.
This
(See PL's Second Am. Compl. , Doc. No. 578.)
modification
went
unnoticed
by
Defendants until Whitesell filed a motion to
the
Court
and
"interlineate"
the claim by adding the word "prejudgment" before the word
"interest."
(Doc.
No.
801.)
Once
the
issue
was
placed
squarely before
amend
the
it,
the Court denied Whitesell's motion to
complaint
to
include
a
claim
for
prejudgment
interest under O.C.G.A. § 13-6-13 because it did not appear in
Whitesell's
constitute
Complaint.
April
a
new
10,
claim
2014
7^
submission
years
after
and
the
would
First
(Order of May 17, 2016, Doc. No. 818.)
thus
Amended
The Court
further concluded that the inclusion of a prejudgment interest
claim would be futile in any event.
Legal
(See id.)
Standard
Whitesell seeks to have this Court "reserve ruling" on
the issue of prejudgment interest.
Order of May 17,
denying
Because the Court, in its
2016, has already ruled on this
Whitesell's
motion
for
leave
to
amend
issue in
the
Second
Amended Complaint to include a claim for prejudgment interest
under O.C.G.A.
§ 13-6-13, the Court views Whitesell's current
motion as a motion for reconsideration of that ruling.
Reconsideration,
however,
is
appropriate
only
if
the
movant demonstrates: (1) an intervening change of law; (2) the
availability of new evidence; or
clear error of
(3)
the need to correct a
law or prevent manifest
injustice.
Center for Biological Diversity v. Hamilton,
1330,
1337
(N.D.
E.g. ,
385 F. Supp. 2d
Ga. 2005) ; Estate of Pidcock v. Sunnvland
America, Inc., 726 F. Supp. 1322, 1333 (S.D. Ga. 1989).
In
this case, Whitesell attempts to show that reconsideration is
4
necessary
to
correct
a
clear
error
of
law
or
to
prevent
manifest injustice.
Legal Analysis
Before
delving
into
the
merits
of
Whitesell's
reconsideration arguments, the Court notes that the motion is
rather
late.
Whitesell
only mentioned
the
possibility of
filing a motion for reconsideration at a hearing on December
5, 2016, over 6 months after the Court's ruling in its Order
of May 17, 2016.
At that time counsel stated that he did a
wterrible job in presenting the issue" to the Court and though
he
did not
Order,
"disagree with anything"
in
the
Court's
prior
he believed there was case law that would allow the
award of prejudgment interest on an unliquidated damages claim
in
the
Court's
discretion.
(Tr.
at
72,
Doc.
No.
875.)
Counsel cited to Holloway v. State Farm Fire & Cas. Co., 537
S.E.2d 121
(Ga. App.
2000).
(Id. at
73-74.)
motion was not filed for another 2% months.
Whitesell,
as promised,
The actual
In the motion,
cites Holloway for the proposition
that the Court has discretion to award prejudgment interest on
unliquidated damages claims. (Doc. No. 880.)
argument,
Whitesell
sets
forth
no
Aside from this
other
basis
reconsideration of this Court's ruling of May 17, 2016.1
1
Whitesell's argument in brief was one paragraph.
5
for
As
a
basis
for
reconsideration,
unremarkable and does
decision.2
pleading,
the
Holloway
not warrant a
reversal
case
of
is
this
rather
Court's
Then, having the benefit of Defendants' responsive
Whitesell filed a ten-page reply brief urging the
Court's reconsideration, the merits of which will be addressed
below.
The Court is constrained to note here,
however,
that
Whitesell's motion for reconsideration could be denied for the
delay in filing and in presenting the issues to the Court.
See Pattee v.
(S.D.
Ga.
reply
Ga.
2007)
F.
Supp.
("[T]he Court will view
briefs]
sandbagging.")
Ports Auth. , 477
suspiciously
[and]
2d 1272,
xnew'
1275
arguments
remain
[in
mindful
of
In fact, by its own admission, explicitly at
the December hearing and implicitly in the sparsity of its
initial
motion,
Whitesell
could
not
find
any
basis
for
2
The Holloway court was asked to review the trial
court's denial of prejudgment interest on two loss claims (a
theft
claim and a water damage
policy.
537 S.E.2d at 122-23.
claim)
under an insurance
The trial court had determined
that both claims were unliquidated,
and therefore,
in the
exercise of discretion, denied the award of prejudgment
interest.
Id. at 123. The Georgia Court of Appeals reversed
the trial court's ruling with respect to the theft claim upon
concluding that the claim was for liquidated damages; thus, on
the
theft
claim,
the
trial
court
was
mandated
to
award
prejudgment interest. Id. at 125. With respect to the water
damage claim, however, the Court of Appeals affirmed that the
claim was unliquidated and the trial court had discretion to
deny an award of prejudgment interest. Id.
In the case at
bar, there is no dispute that this Court has discretion to
award prejudgment interest on an unliquidated damages claim.
(See Order of May 17, 2016, at 5 ("The award of prejudgment
interest arising our of a breach of contract is within the
discretion of the factfinder."
(citation omitted)).)
reversal
of
this
Court's
prior
order,
i.e.,
there
was
no
argument of clear error or manifest injustice, until it filed
its reply brief.
Turning now to the reply brief,
Whitesell argues that
this Court overlooked the case of Alphamed,
Med.,
Inc., 367 F.3d 1280
prejudgment
interest
unliquidated claims.
(11th Cir. 2004),
cannot
be
awarded
Inc. v. B. Braun
in finding that
on
Whitesell's
Alphamed does not change this Court's
analys is, however.
Whitesell
does
not
dispute
that
prejudgment
interest
under O.C.G.A. § 13-6-13 can only be awarded if the amount of
damages
breach.
1280.
is
ascertainable
This was
at
the
time
certainly the case
In that case,
of
the
contractual
in Alphamed,
367
F3d
the district court directed the jury to
award a sum certain upon the jury's determination that the
defendant breached its agreement to purchase a contractually
agreed upon quantity of ambulatory infusion pumps from the
plaintiff, Alphamed.
Id. at 1284.
The district court arrived
at the figure by multiplying the quantity and price terms of
the pumps as set forth in the parties' contract. Id.
also determined that
Alphamed was
The jury
entitled to prejudgment
interest in a special interrogatory.
Upon the verdict,
the
district court awarded the sum certain in damages and awarded
prejudgment interest on that amount at the statutory rate.
Id.
On appeal, the defendant complained that the district
court did not permit the jury to calculate the prejudgment
interest award.
should
have
The Eleventh Circuit agreed that the jury
calculated
the
amount
but
found
the
error
to
be
harmless since the jury would have arrived at the same exact
figure.
Id. at 1287.
In the Alphamed case,
the parties apparently disputed
whether Alphamed was capable of producing the pumps; a similar
allegation has been raised against Whitesell in the case at
bar.
Also,
Alphamed's
the Alphamed district
lost
profits
to
arrive
court had to calculate
at
a
damages
figure;
a
similar task may befall the finder of fact in the case at bar.
Whitesell therefore argues that the case at bar is analogous
to Alphamed,
and because prejudgment interest was awarded to
Alphamed under these circumstances, Whitesell too is entitled
to prejudgment interest.
Whitesell's
view
of
its
breach
of
contract
claims
is
rather simplistic, and indeed one or two of their claims may
be more straightforward than others.
however.
The
factfinder
in
this
One thing is certain,
case
will
simply multiply a specific quantity of
not
be
asked
to
specific parts by a
specific price term (all of which were identified in a single
contract) to ascertain an amount of damages that would be the
same at
the time of breach.
Notably,
here there is not a
single contract with specific quantities and price terms.
Indeed,
this
Court
has
already
held
that
the
original
contract,
the
Strategic
Partnership
Agreement,
did
identify the scope of goods to be bought and sold.
not
And while
the Settlement Memorandum and Consent Order may clarify the
parties' obligations to each other in some respects, any award
of damages will not be one that is ascertainable at the time
of breach, particularly given the difficulties in this case of
defining the scope of goods, the dates of full transition, and
the pricing of the parts.
(See, e.g., Hrg. Tr. Of April 27,
Doc. No. 819, at 13 6 ("They put in the Whitesell pricing.
asking
us
to
do
the
damage
computation
information and only that information,
based
on
By
that
it limits our damage
theory as opposed to prices that they've paid to third parties
. . .
.»).)
In
short,
the
Alphamed case,
which involved a single
contract with a specific quantity of
a single product and
specific
is
pricing
of
that
product,
not
sufficiently
analogous to this case, which involves an invalidated supply
contract, an indefinite scope of goods, and disputed pricing,
to
demonstrate
clear
error
Court's prior analysis.
warrant
reversal
of
or
manifest
injustice
in
this
That is, the Alphamed case does not
this
Court's
determination
that
a
prejudgment interest claim would be futile because damages
could not be ascertained at the time of breach.
Further, Whitesell undervalues a critical conclusion of
the May
17,
2016 Order.
Therein,
the
Court
found
that
Whitesell had added a
this
finding
"interest"
by
claim
new claim.
pointing
in
its
Whitesell
out
prior
that
two
it
takes
had
attempts
issue with
included
to
amend
an
the
complaint on December 20, 2007 and July 5, 2011 (doc. nos. 122
and 449)
(doc.
as well as
no.
546).
in its submission of
Including an
interest
January 17,
claim
2014
in proposed
amended pleadings does not inject the claim into the case,
however.
March
More importantly, the Court convened the hearing of
27,
2014,
for
the purpose
of
having a
"good,
Second Amended Complaint" with which to move forward.
3, Doc.
No.
567.)
clean
(Tr. at
It was the Court's expectation that the
proposal submitted by Whitesell thereafter would be a complete
statement of its case.
Thus,
Whitesell's expression of its
claim for interest under only O.C.G.A.
10, 2014 submission is binding.
be
drawn
from
that
submission
§ 7-4-16 in its April
A reasonable conclusion can
that
Whitesell's
mention
of
interest in any prior attempt to amend the complaint refers to
O.C.G.A.
§ 7-4-16, not O.C.G.A.
§ 13-6-13,
since the general
term "interest" was taken out of the damage allegation in each
count and replaced by specific reference to O.C.G.A. § 7-4-16.
In short, Whitesell specified only one type of interest in its
submission of April 10, 2014, which was to be its definitive
statement of its case.
Whitesell's inclusion of a prejudgment
interest claim in the ultimate statement of
its case
- the
filed and operative Second Amended Complaint - was erroneous
10
since it was not authorized by the Court, and, frankly,
was
probably not contemplated by Whitesell's counsel until after
the Court struck any mention of interest except in Paragraph
199.
The
Court's
irrelevant.
conjecture
on
that
point,
however,
is
The relevant fact is that a prejudgment interest
claim under O.C.G.A.
§ 13-6-13 was not submitted to the Court
on
for
April
10,
2014
approval
and
therefore
was
later
rejected by this Court in the exercise of sound discretion.
Conclusion
Having
already
disallowed
prejudgment
interest
under
Whitesell's
O.C.G.A.
§
claim
13-6-13
on
for
its
unliquidated damages claims, and finding no basis to reverse
this
ruling,
Whitesell's
reserving ruling3
oral
argument
motion
for
entry
of
an
(doc. no. 880) is hereby DENIED.
on
the
issue
would
not
aid
order
Because
the
Court,
Whitesell's motion for oral argument (doc. no. 886) is DENIED.
ORDER ENTERED at Augusta, Georgia, this
/O day of May,
2017.
J. RftNBfAL HALL, CHIEF JUDGE
UNITEp/STATES DISTRICT COURT
JTHERN DISTRICT OF GEORGIA
3
The
Court
emphasizes
that
the
motion
has
been
construed as a motion for reconsideration, and Whitesell has
not met its burden to show clear error of law or manifest
injustice.
11
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