84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al
ORDER AND REASONS denying 273 Motion for Reconsideration. Signed by Judge Sarah S. Vance on 8/8/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
84 LUMBER COMPANY
F.H. PASCHEN, S.N. NIELSEN &
ASSOCIATES, LLC, ET AL.
SECTION “R” (5)
ORDER AND REASONS
Plaintiff 84 Lumber Company moves the Court to reconsider its May
16, 2017 Order1 granting defendants’ motion for partial summary judgment. 2
For the following reasons, 84 Lumber’s motion is denied.
The Court has already detailed the facts of this case in multiple orders,
including the one that 84 Lumber asks the Court to reconsider. 3 For here, it
will suffice to recount that this case arises out of two school construction
projects in New Orleans, Louisiana. Both projects were subject to the
provisions of the Louisiana Public Works Act (LPWA), La. Rev. Stat. §
38:2241, et seq. Defendant Paschen was the general contractor on both
R. Doc. 263.
R. Doc. 273.
See generally R. Docs. 151, 206, 263.
projects, and subcontracted a portion of each project to J & A Construction
Management Resources Company, Inc. (J & A). 4 J & A then subcontracted a
portion of its obligations to 84 Lumber. 5
According to 84 Lumber, in April 2011, Paschen and J & A stopped
paying 84 Lumber for its work on the projects. 6 On June 8, 2012, 84 Lumber
filed two sworn statements of claims, one for each project. 84 Lumber
claimed $808,520.39 for the Osborne Project, and $1,042,080.09 for the
South Plaquemines Project. 7 84 Lumber reflected in two June 2012 letters
mailed to the Plaquemines Parish School Board, and to the Louisiana
Department of Education and the Sureties, respectively, that 84 Lumber had
emailed Paschen’s attorney Charles F. Seemann copies of the sworn
On July 5, 2012, 84 Lumber sued Paschen and the projects’ Sureties,
alleging that 84 Lumber was not paid in full for work performed under its
Master Service Agreement with J & A. 9 84 Lumber sued under the LPWA,
seeking payment on its June 2012 Sworn Statements of Claims from both
R. Doc. 263 at 1-2.
R. Doc. 1 at 3-4 ¶ 9.
R. Doc. 214-32 at 4 (Osborne Project); R. Doc. 214-21 at 7 (South
R. Doc. 214-22 at 1; R. Doc. R. Doc. 213-32 at 1.
R. Doc. 1.
Paschen and the Sureties.10 The case was stayed for nearly three years while
the parties attempted to pursue their claims through arbitration. 11 After the
stay was lifted, defendants moved for partial summary judgment on 84
Lumber’s LPWA claims.12 On May 16, 2017, the Court granted defendants’
motion because it found that 84 Lumber had failed to comply with the notice
requirements of section 2247 of the LPWA. 13 In doing so, the Court rejected
84 Lumber’s argument that all that is required under section 2247 is “actual
84 Lumber now moves the Court to reconsider its order under Federal
Rule of Civil Procedure 59(e), arguing both that the Court committed
manifest error and that failure to reconsider will result in manifest
injustice.15 Paschen and the Sureties filed a response in opposition, 16 and 84
Lumber replied. 17
Id. at 4-6 ¶¶ 13-14, 16, 18.
For a history of the failed arbitration process, see R. Doc. 151 at
R. Doc. 220.
R. Doc. 263 at 21-23. The Court also found that defendants were
entitled summary judgment on 84 Lumber’s unjust enrichment claim. Id. at
Id. at 16-22.
R. Doc. 273-1 at 5-6.
R. Doc. 275.
R. Doc. 281.
A district court has considerable discretion to grant or deny a motion
under Rule 59(e). See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355
(5th Cir. 1993). Reconsideration of an earlier order is an extraordinary
remedy, which should be granted sparingly. See Fields v. Pool Offshore, Inc.,
1998 WL 43217, *2 (E.D. La. Mar. 19, 1998); Bardwell v. George G. Sharp,
Inc., 1995 WL 517120, *1 (E.D. La. Aug. 30, 1995). The Court must “strike
the proper balance between the need for finality and the need to render a just
decision on the basis of all the facts.” Edward H. Bohlin Co., 6 F.3d at 355.
A moving party must satisfy at least one of the following criteria to prevail on
a Rule 59(e) motion: (1) the motion is necessary to correct a manifest error
of fact or law; (2) the movant presents newly discovered or previously
unavailable evidence; (3) the motion is necessary in order to prevent
manifest injustice; and (4) the motion is justified by an intervening change
in the controlling law. See Fidelity & Deposit Co. of Md. v. Omni Bank, 1999
WL 970526, *3 (E.D. La. Oct. 21, 1999); Fields, 1998 WL 43217 at *2; see also
Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995)
(“Rule 59 and Rule 60(b)(2) share the same standard for granting relief on
the basis of newly discovered evidence.”).
84 Lumber does not base this motion on newly discovered or
previously unavailable evidence, nor does it argue that reconsideration is
justified by an intervening change in the controlling law. Instead, it argues
that the Court “based its ruling” on a manifest error of fact because it found
that there was no evidence in the record establishing that Paschen’s thencounsel Charles Seemann received 84 Lumber’s emailed copies of its sworn
statements, or that he brought the statements to Paschen. 18 Additionally, 84
Lumber argues that failure to reconsider will result in manifest injustice. The
Court addresses each argument in turn.
The Court Did Not Base its Ruling on a Manifest Error
84 Lumber asserts that the Court made a manifest error of fact when it
distinguished cases relied on by 84 Lumber because in those cases there was
“undisputed evidence that the defendant-contractor had received the notice
containing the statutorily-required information sent from the plaintiffs.”19
R. Doc. 273-1 at 5. Alternatively, 84 Lumber asks the Court to
order defendants to submit evidence establishing that it did not receive the
emails, so that 84 Lumber can respond with its own evidence. Id. at 4.
R. Doc. 263 at 21 (citations omitted) (emphasis in original).
According to 84 Lumber, Paschen conceded receipt of the notice,20 when it
wrote in its memorandum in support of its motion: “the only ‘notice’ Paschen
received . . . were copies of the new Sworn Statements sent to the Projects’
respective owners on June 19, 2012 . . . , and June 20, 2012.”21 This one
sentence—taken out of context of Paschen’s legal argument—is not evidence
that Paschen received the notice, but even if it were, it does not show that the
Court based its ruling on a manifest error of fact.
First, the finding that there was no evidence of receipt was not an
“obvious mistake or departure from the truth.” Guy v. Crown Equip. Corp.,
394 F.3d 320, 325 (5th Cir. 2004) (citation omitted). Paschen’s use of the
word “received” in its legal brief is not competent summary judgment
evidence, and the Court is well within its discretion not to treat this statement
as a binding judicial admission. See, e.g., Pool Co. v. Cooper, 274 F.3d 173,
185 (5th Cir. 2001) (“Nor is [defendant’s] admission, made in passing in the
one short paragraph he devotes to this issue, on par with the ‘overwhelming,
consistent totality of the [ ] circumstances’ in which we have previously held
a judicial admission binding.”) (quoting Stallard v. United States, 12 F.3d
489, 496 (5th Cir. 1994)); see also Williams v. State, No. 14-154, 2016 WL
R. Doc. 273-1 at 2.
R. Doc. 220-1 at 13.
754629, at *2 (M.D. La. Feb. 24, 2016) (“[T]he Court declines to exercise its
vast discretion to treat statements in memoranda as binding judicial
admissions of fact.”) (citation omitted) (emphasis in original). Because
Paschen’s statement in its legal brief was not a binding admission, the
Court’s finding was not a departure from the truth.
More significantly, the Court did not base its ruling on this lack of
evidence, but instead on the undisputed evidence that the communications
sent from 84 Lumber did not satisfy the clear language of section 2247.
Section 2247 requires written notice “stating with substantial accuracy the
amount claimed and the name of the party to whom the material was
furnished or supplied or for whom the labor or service was done or
performed,” and the notice “shall be served by mailing the same by registered
or certified mail, postage prepaid, in an envelope addressed to the contactor
at any place he maintains an office in the state of Louisiana.” La. Rev. Stat.
§ 38:2247. It remains undisputed that emails to Paschen’s counsel are not a
mailing by registered or certified mail addressed to the contractor at the
contractor’s office. The Court based its ruling on 84 Lumber’s failure to
comply with these requirements, not on the lack of evidence indicating
Paschen’s receipt. 22 Accordingly, the Court did not base its ruling on a
manifest error of fact.
The Court’s Order Will Not Result in Manifest Injustice
Next, 84 Lumber argues that granting summary judgment in favor of
defendants “based solely on a technical issue” is “not what the Public Works
Act intends” and will result in manifest injustice. But 84 Lumber’s argument
here is simply a regurgitation of the “actual notice” argument that the Court
has already rejected. See LeClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir.
2005) (“A motion for reconsideration may not be used to rehash rejected
arguments.”) (citation omitted). Despite 84 Lumber’s protestations to the
contrary, the Louisiana caselaw does not support its position that “actual
notice” is sufficient, no matter the extent of noncompliance with the plain
terms of section 2247.
At best, the cases relied on by 84 Lumber establish that notice mailed
by regular rather than certified mail will not defeat one’s LPWA claim, Bob
McGaughey Lumber Sales, Inc. v. Lemoine Co., Inc., 590 So. 2d 664, 667
(La. App. 3 Cir. 1991), and nor will improperly designating a claimant as a
Because this lack of evidence was not the basis for the Court’s
ruling, the Court will not require the parties to submit evidence on this issue.
corporation rather than a sole proprietorship. Cole’s Const. Co., Inc. v.
Knotts, 619 So.2d 876, 878 (La. App. 3 Cir. 1993). Here, the noncompliance
was more extensive; 84 Lumber not only sent its purported notice by email
rather than certified mail (despite sending earlier communications via
certified mail), but also sent it to the wrong recipient. 23 As stated in the
Court’s order, the Louisiana Supreme Court has repeatedly instructed that
the LPWA should be “strictly construed.” See, e.g., Guichard Drilling Co. v.
Alpine Energy Servs., Inc., 657 So. 2d 1307, 1313 (La. 1995). If the Court
were to find that 84 Lumber’s failure to comply with section 2247 was merely
“technical” and therefore not fatal to its claim, the Court would be ignoring
the Louisiana Supreme Court’s instruction. In doing so, the Court would also
be rewriting section 2247. That is a bridge too far. See Rhynes v. Branick
Mfg. Corp., 629 F.2d 409, 410 (5th Cir. 1980) (stating that federal courts,
sitting in diversity and applying state law, should avoid “substantive
innovation” in state law); see also Cimino v. Raymark Industries, Inc., 151
F.3d 297, 313-14 (5th Cir. 1998) (collecting cases).
Thus, 84 Lumber has failed to show that the Court’s order will result in
Additionally, as the Court’s previous order pointed out, 84
Lumber’s communications also appeared to not state with substantial
accuracy the amount 84 Lumber was claiming. R. Doc. 263 at 22 n.50.
For the foregoing reasons, 84 Lumber’s motion for reconsideration is
New Orleans, Louisiana, this _____ day of August, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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