Contracting King, Inc. v. Creek Services, L.L.C. et al
Filing
102
ORDER AND REASONS denying 100 Motion for Reconsideration. Signed by Judge Ivan L.R. Lemelle on 4/4/2012. (lag, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES FOR THE USE AND
BENEFIT OF CONTRACTING KING, INC.
CIVIL ACTION
VERSUS
NUMBER:
09-06098
CREEK SERVICES, LLC, et al
SECTION:
“B”
ORDER AND REASONS
Before
the
Court
is
Plaintiff
Contracting
King,
Inc.’s
(Plaintiff) Motion to Reconsider Final Judgment Pursuant to Rule 59
(Rec. Doc. No. 100). In response, Defendants Creek Services, L.L.C.
(Creek Services) and Travelers Casualty and Surety Company of
America
(Travelers)
(collectively
Defendants)
submitted
a
Memorandum in Opposition (Rec. Doc. No. 101) to Plaintiff’s Motion.
Accordingly, and for the reasons articulated below,
IT IS ORDERED that Plaintiff’s motion to reconsider pursuant
to Rule 59 is DENIED.1
PROCEDURAL HISTORY
The facts of this case are well known to the Court and are
adopted and incorporated by reference from this Court’s July 7,
2011 Order on Defendant’s Motion for Summary Judgment. (Rec. Doc.
No. 69).
On December 28, 2011, this Court granted Defendants’ Motion to
Dismiss under Rule 12(b)(6) and Rule 12(b)(1). (Rec. Doc. No. 98).
A final judgment, dismissing the case, was issued on January 4,
1
We are grateful for the work on this case by Elizabeth
Etherton, a Tulane Law School extern with our chambers.
2012. (Rec. Doc. No. 99). On January 24, 2012, Plaintiff filed the
instant Motion to Reconsider. (Rec. Doc. No. 100). On January 31,
2012,
Defendants
filed
their
Opposition
to
the
Motion
to
Reconsider. (Rec. Doc. No. 101).
LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 59 permits a party to file “a
motion to alter or amend a judgment” within twenty-eight days of a
court’s entry of final judgment. FED. R. CIV. P. 59(e). A district
court has great discretion when considering whether or not to
approve a Rule 59(e) motion. See, e.g., Lavespere v. Niagara Mach.
& Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990); Boyd’s Bit
Serv., Inc. v. Specialty Rental Tool & Supply, Inc., 332 F.Supp 2d
938, 939 (W.D. La. 2004), aff’d sub nom. Boyd’s Bit Serv., Inc. v.
Specialty Rental Tool & Supply, Inc., 137 F. App’x 351 (Fed. Cir.
2005).
The
Fifth
Circuit
has
recognized
that
a
motion
for
reconsideration may only be granted if the moving party shows there
was a mistake of law or fact or presents newly discovered evidence
that
could
not
have
been
discovered
previously.
Templet
v.
Hydrochem, Inc., 367 F.3d 473, 478-79 (5th Cir. 2004). The Fifth
Circuit has enumerated certain grounds on which a district court
may
grant
controlling
a
Rule
law;
59
(2)
motion:
the
“(1)
an
availability
intervening
of
new
change
evidence
in
not
previously available; or (3) the need to correct a clear error of
2
law or prevent manifest injustice.” In re Benjamin Moore & Co., 318
F.3d 626, 629 (5th Cir. 2002). The purpose of Rule 59 is not to
allow the moving party to relitigate an old matter, raise a new
argument, or to submit evidence that was available before the final
judgment was issued. Templet, 367 F.3d at 479.
Rule 59 is intended to serve a “narrow purpose” in allowing
parties to correct manifest errors of law or fact that lead to a
final judgment. Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th
Cir. 1989). This Court has recognized that “[r]econsideration of a
judgment after its entry is an extraordinary remedy that should be
used sparingly.” Clancy v. Employers Health Ins. Co., 101 F.Supp.2d
463, 465 (E.D. La. 2000). A district court must “strike the proper
balance between the need for finality and the need to render just
decisions on the basis of all the facts.” Boyd’s Bit, 332 F. Supp.
2d at 940 (citing Kattan v. District of Columbia, 995 F.2d 274, 276
(D.C. Cir. 1993)). The Fifth Circuit has specifically noted that
Rule 59(e) “favor[s] the denial of motions to alter or amend a
judgment.” Southern Constructors Group, Inc. v. Dynalectric Co., 2
F.3d 606, 611 (5th Cir. 1993).
B. Plaintiff’s Motion to Reconsider Should Not be Granted
Plaintiff’s Motion to Reconsider Pursuant to Rule 59(e) does
not meet the standards established by this Court or the Fifth
Circuit.
Plaintiff
specifically
alleged
that
this
Court
made
“mistakes of law and fact” in its final judgment. (Rec. Doc. No.
3
100-1
at
1).
While
this
is
one
of
the
enumerated
factors
established by the Fifth Circuit in In re Benjamin Moore & Co., 318
F.3d 626, 629 (5th Cir. 2002), Plaintiff does not establish that
the alleged errors are enough to grant this “extraordinary remedy.”
Clancy v. Employers Health Ins. Co., 101 F. Supp.2d 463, 465 (E.D.
La.
2000). Plaintiff
claims
that
this Court
erred
by
“never
ma[king] a determination of the appropriateness of Contracting
King, Inc.’s breach of contract action against Creek Services in
ruling
on
defendant’s
Motion”
and
that
Defendants
erred
by
“fail[ing] to acknowledge or address Contracting King, Inc.’s
breach of contract claim against Creek Services in their Rule
12(b)(6) and 12(b)(1) Motion to Dismiss.” (Rec. Doc. No. 100-1 at
9).
In its Order and Reasons, this Court specifically addressed
Plaintiff’s argument that “Creek Services is likewise in breach [of
contract] and should be held liable for damages.” (Rec. Doc. No. 98
at 5). Since Plaintiff had already recovered damages from CWW,
Inc.2 pursuant to their “sub-sub-contract” in the same amount it
was attempting to claim from Creek Services on the same claim, this
Court found they were seeking to “double recover” in contravention
of Louisiana law. See id. (citing Albert v. Farm Bureau Insur. Co.,
2
CWW, Inc. was hired by Creek Services under a sub-contract
to perform work necessary under the contract between Creek
Services and the United States Army Corps of Engineers. (Rec.
Doc. No. 101 at 2). CWW then entered into a “sub-sub-contract”
with Plaintiff for roofing services. Id.
4
940 So.2d 620, 622 (La. 2006)). This assertion was first raised by
Defendants in their Motion to Dismiss. (Rec. Doc. No. 79 at 3-4).
This Court specifically held that Plaintiff “cannot seek further
recovery from Creek Services” because of the default judgment
issued against CWW. Id.
CONCLUSION
Given above review and our prior specific consideration of the
Plaintiff’s
Plaintiff’s
breach
of
contract claims,
allegations.
Accordingly,
there
IT
is
IS
no
merit to
ORDERED
that
Plaintiff’s motion to reconsider pursuant to Rule 59 is DENIED.
New Orleans, Louisiana, this 4th day of April, 2012.
_________________________________
UNITED STATES DISTRICT JUDGE
5
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