Entertainment USA Inc v. Moorehead Communications Inc

Filing 122

OPINION AND ORDER denying 108 Motion for Reconsideration. Signed by Judge Rudy Lozano on 6/1/15. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ENTERTAINMENT USA, INC.

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)
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)
)
)
)
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Plaintiff,
vs.
MOOREHEAD COMMUNICATIONS, INC.
Defendant.

NO. 1:12–CV-116

OPINION AND ORDER
This matter is before the Court on the Motion to Reconsider
filed by Plaintiff Entertainment USA, Inc., on April 16, 2015
(DE# 108).

For the reasons set forth below, Plaintiff’s Motion

to Reconsider (DE# 108) is DENIED.

BACKGROUND
Plaintiff

Entertainment

USA,

Inc.

is

one

of

several

companies doing business as One Wireless World (“OWW”).
January

2006,

(“Agreement”)

OWW
with

(“Moorehead”).

entered

into

Defendant

a

referral

Moorehead

fee

In

agreement

Communications,

Inc.

In 2012, OWW filed a complaint against Moorehead

alleging that Moorehead had breached the Agreement by refusing
to pay OWW referral fees, among other claims.
both

moved

“referrals”

for

summary

in

the

judgment

Agreement.

on
OWW

the

OWW and Moorehead

meaning

argued

that

of

the

term

“referrals”

included locations, individuals, and entities referred by OWW to

‐1‐ 

Moorehead.
locations

Moorehead maintained that “referrals” was limited to
referred

by

OWW.

The

parties

also

disputed

the

duration of the Agreement, among other issues.
On
summary

March

20,

judgment

Moorehead’s
Order”).

2015,
and

motion

the

Court

granted

for

(DE# 106.)

in

partial

denied
part

summary

OWW’s

and

motion

denied

judgment

in

for
part

(“March

20

OWW now brings the instant motion to

reconsider the March 20 Order, asserting that the Court made
manifest

errors

“referrals”
entitled

to

is

of

law

limited

referral

when
to

fees

it

found

referred
for

that

(1)

locations,

relocated

stores

the

(2)
only

term

OWW

is

if

it

referred the new locations, and (3) the Agreement is terminable
at will.

These issues have been fully briefed and are ripe for

adjudication.

DISCUSSION
Motions to reconsider serve to correct manifest errors of
law or fact or to present newly discovered evidence.

Caisse

Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1269
(7th Cir. 1996).

A motion to reconsider performs a valuable

function where:
the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues
presented to the Court by the parties, or has made an
error not of reasoning but of apprehension. A further
basis for a motion to reconsider would be a

‐2‐ 

controlling or significant change in the law or facts
since the submission of the issue to the Court. Such
problems rarely arise and the motion to reconsider
should be equally rare.
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990) (citation omitted).

A motion to reconsider

is not a vehicle for rearguing previously rejected motions or
for rehashing old arguments.

Oto v. Metro. Life Ins. Co., 224

F.3d 601, 606 (7th Cir. 2000).

The disposition of a motion to

reconsider is left to the discretion of the district court.

CBI

Indus., 90 F.3d at 1270.
In its motion, OWW claims that the Court made a manifest
error of law by failing to consider extrinsic evidence when
interpreting the Agreement.

OWW cites Millner v. Mumby, 599

N.E.2d 627 (Ind. Ct. App. 1992), for the proposition that the
Court may consider extrinsic evidence
so long as it has not been offered to vary the terms
of the written contract[,] . . . to show that fraud,
unintentional misrepresentation, or mistake entered
into the formation of a contract[,] . . .
to apply
the terms of a contract to its subject matter[, and] .
. . to shed light upon the circumstances under which
the parties entered into the written contract.
(DE# 119 at 3 (citing Millner, 559 N.E.2d at 629 (citations
omitted)).)

In Millner, the court considered extrinsic evidence

that had been offered to show one factor in the formation of the
contract – that is, which party developed the specifications
written into the contract.

559 N.E.2d at 629.

‐3‐ 

“Because this

testimony did not serve to vary any term of the contract, the
trial court properly admitted it into evidence and considered it
in reaching a judgment.”

Id.

OWW claims that the Court should have considered extrinsic
evidence here because it would “explain[] the terms” of the
Agreement, apply the terms to its subject matter, and shed light
on

the

circumstances

Agreement.
extrinsic

under

which

the

parties

entered

the

(DE# 119 at 6; see also id. at 5 n.1 (asserting
evidence

“explains

the

terms”

of

the

Agreement).)

However, Indiana courts have held that “extrinsic evidence is
not admissible to add to, vary or explain the terms of a written
instrument if the terms of the instrument are susceptible of a
clear and unambiguous construction.”

Univ. of S. Ind. Found. v.

Baker,

2006)

843

N.E.2d

emphasis added);

528,

see

532

(Ind.

(citation

omitted;

Metro Holdings One, LLC v. Flynn Creek

Partner, LLC, 25 N.E.3d 141, 157 (Ind. Ct. App. 2014) (same).
While OWW claims that its extrinsic evidence is not offered
to vary the terms of the Agreement, that is precisely what it
seeks to do.

OWW asks the Court to consider evidence in order

to vary the meaning of the term “referrals” in the Agreement, a
term that this Court found to be unambiguous.

Indiana’s four

corners

so.

rule

precludes

the

Court

from

doing

“If

an

instrument is worded so that it can be definitely interpreted
and its terms carried out within the instrument by applying that

‐4‐ 

language to the subject matter thereof without contradiction,
then the instrument cannot be termed uncertain or ambiguous, and
extrinsic evidence is not admissible to vary or contradict its
meaning.”

East v. Estate of East, 785 N.E.2d 597, 601 (Ind. Ct.

App. 2003) (citation omitted); see Sees v. Bank One, Ind., N.A.,
839 N.E.2d 154, 161 (Ind. 2005) (“As a general proposition a
party is excluded from presenting extrinsic evidence of prior or
contemporaneous oral agreements offered to vary or contradict
the terms of a written contract.”) (citation omitted).

Indiana

courts have repeatedly held that extrinsic evidence should not
be considered where a contract is clear and unambiguous.

See,

e.g., Haub v. Eldridge, 981 N.E.2d 96, 102-03 (Ind. Ct. App.
2012) (reversing denial of summary judgment where trial court
erred

by

considering

extrinsic

evidence

in

connection

with

unambiguous contract language); Keck v. Walker, 922 N.E.2d 94,
102

(Ind.

Ct.

App.

2010)

(affirming

summary

judgment

where

written instruments “are not ambiguous, and we need not consider
any

extrinsic

evidence”

under

Indiana’s

four

corners

rule);

Davis v. Raytheon Tech. Servs. Co. LLC, No. 1:10–CV–1365, 2012
WL

5499416,

at

*4

(S.D.

Ind.

Nov.

13,

2012)

(refusing

to

consider extrinsic evidence where the agreement at issue was not
ambiguous).
In

its

considered

motion,
extrinsic

OWW

insists

evidence

in

‐5‐ 

that

the

Court

interpreting

should

the

have

Agreement

because the term “referrals” is ambiguous.

(See DE# 119 at 4;

cf. DE# 103 at 3-4 (arguing in summary judgment briefing that
the

Agreement’s

plain

language

individuals and entities).)

requires

payment

for

referred

OWW acknowledges, as it must, that

a document is not ambiguous merely because the parties disagree
about a term’s meaning.
at

532.

OWW

claims

(DE# 109 at 4); see Baker, 843 N.E.2d
that

reasonable

people

could

come

to

different conclusions about the meaning of the term “referrals,”
based on the language of the Agreement and extrinsic evidence.
See Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind.
2012) (“A contract is ambiguous if a reasonable person would
find the contract subject to more than one interpretation.”)
(citation

omitted).

The

Court

considered

OWW’s

arguments

regarding the language of the Agreement in connection with the
parties’ summary judgment motions and rejected them.
not rehash them here.
Court

found

the

See Oto, 224 F.3d at 606.

term

“referrals”

in

the

It will

Because the

Agreement

to

be

unambiguous, it properly applied Indiana’s four corners rule and
did not consider extrinsic evidence.
OWW

also

challenges

the

Court’s

ruling

that

because

“referrals” are referred locations, and not referred individuals
or

entities,

OWW

is

not

entitled

to

referral

fees

from

additional locations or relocated stores opened by an individual
or

entity,

unless

OWW

referred

‐6‐ 

those

additional

or

new

locations.

(See DE# 106 at 20.)

Citing no case law, OWW argues

that “it is a manifest error of law to rely upon the four
corners rule to interpret the plain language of an agreement
contrary

to

the

stated

intent

of

the

only

individuals

that

(DE# 109 at 8.)

The

Court finds this statement to be contrary to Indiana law.

The

drafted the agreement – on both sides.”

Indiana Court of Appeals has held that “[w]hen the language of a
contract

is

unambiguous,

[courts]

may

not

look

to

extrinsic

evidence to add to, vary, or explain the instrument but must
determine

the

instrument.”

parties’

intent

from

the

four

corners

of

the

Metro Holdings One, 25 N.E.3d at 157 (citation

omitted); see Richter v. Corp. Fin. Assocs., LLC, No. 1:06-CV1623,

2008

(“Typically,

WL
the

885917,
court

at

*5

must

(S.D.

determine

Ind.
the

Mar.

28,

intentions

2008)
of

the

contracting parties from the four corners of the document.”)
(citing Boswell Grain & Elevator, Inc. v. Kentland Elevator &
Supply,

593

N.E.2d

1224,

1227

(Ind.

Ct.

App.

1992));

see

generally CBI Indus., 90 F.3d at 1272 (explaining that “[a]n
analysis that begins with consideration of extrinsic evidence of
what the parties meant, instead of looking first to what they
said and reaching extrinsic evidence only when required to do so
because of some identified ambiguity, unnecessarily denigrates
the contract and unsettles the law.”) (citation omitted).

‐7‐ 

For the reasons provided above and in the March 20 Order,
the

Court

properly

applied

Indiana

law

to

exclude

extrinsic

evidence because the Agreement is clear as to the meaning of the
term “referrals.”
law.

See

demonstrated

The Court did not commit a manifest error of

Oto,
by

224
the

F.3d

at

606

disappointment

(“manifest
of

the

error

losing

is

not

party”

but

rather “is the wholesale disregard, misapplication, or failure
to recognize controlling precedent”) (internal quotations and
citation omitted).
Finally, OWW argues that the Court erred in finding that
the Agreement was terminable at will.

The Court disagrees.

It

relied on established Indiana law to find that the Agreement is
terminable at will because it does not contain a termination
date,

or

any

provision

setting

terminate Moorehead’s obligations.

out

a

condition

that

would

(DE# 106 at 30-34 (citing

City of E. Chicago, Ind. v. E. Chicago Second Century, Inc., 908
N.E.2d 611, 623 (Ind. 2009)).)

OWW also asserts that the Court

should hold that Moorehead is obligated to pay OWW fees “so long
as activations occur” at referred locations.

In the March 20

Order, the Court denied OWW’s motion for summary judgment on
this issue, holding that “determining the point at which the
[parties’] contractual obligations terminated is a triable issue
of fact.”

(DE# 106 at 34 (citing Int'l Union, United Auto.,

Aerospace & Agr. Implement Workers of Am., U.A.W. v. Randall

‐8‐ 

Div. of Textron, Inc., 5 F.3d 224, 230 (7th Cir. 1993)).)

The

Court finds that these holdings are solidly based in the law and
will not rehash these arguments further.
In sum, nothing in OWW’s motion to reconsider establishes a
manifest error of law, nor does anything demonstrate to the
Court that it patently misunderstood OWW’s position.

The Court

stands by its March 20 Order.

CONCLUSION
For the reasons set forth above, OWW’s Motion to Reconsider
(DE# 108) is DENIED.

DATED:

June 1, 2015

/s/ RUDY LOZANO, Judge
United States District Court

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