Brothers Petroleum, LLC v. Wagners Chef, LLC et al
Filing
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ORDER AND REASONS denying 47 Motion for Reconsideration. Signed by Judge Carl Barbier on 10/15/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BROTHERS PETROLEUM, LLC
CIVIL ACTION
VERSUS
No. 17-6713
WAGNERS CHEF, LLC, ET AL.
SECTION: “J”(1)
ORDER AND REASONS
Before the Court is a Motion for Reconsideration (Rec. Doc. 47) filed by
Plaintiff, Brothers Petroleum, LLC. Having considered the Motion and legal
memoranda, the record, and the applicable law, the Court finds that the Motion
should be DENIED.
FACTS AND PROCEDURAL HISTORY
This Court described the facts of this case at length in its order and reasons
issued on July 31, 2018. (Rec. Doc. 46). In that order, this Court granted summary
judgment in favor of all defendants other than Wagners Chef, LLC, Jadallah,
Enterprises, LLC, and Ahmed 1, LLC and also on some of the claims alleged against
the Defendants who remain party to this action. Plaintiff filed its Motion on August
20, 2018. LNV Corporation and Wagner World, LLC filed opposition, to which
Brothers filed a reply. LNV responded with a sur-reply.
PLAINTIFF’S ARGUMENTS
Plaintiff moves this Court to reconsider its order pursuant to Rule 59 of the
Federal Rules of Civil Procedure. Movant argues reconsideration is necessary to
“correct a manifest error of law and facts and in order to prevent manifest injustice.”
(Rec. Doc. 47). Specifically, Plaintiff alleges first that this Court was manifestly
wrong in its finding that FIRREA deprives this Court of jurisdiction to grant
equitable relief, because statutory provisions allow this Court to retain jurisdiction
over pre-receivership claims as opposed to post-receivership claims. Second, Plaintiff
argues the revocatory action against Empire Express, LLC, should be maintained
because that sale “does not form a part of the transactions involving the now-defunct
First NBC Bank.” (Rec. Doc. 47-1 at 12). Third, Plaintiff urges that it has successfully
alleged unfair trade practices claims against Wagner World and Empire Express.
LEGAL STANDARD
The Federal Rules of Civil Procedure do not expressly allow motions for
reconsideration of an order. Bass v. U.S. Dep’t of Agric., 211 F.3d 959, 962 (5th Cir.
2000). The Fifth Circuit treats a motion for reconsideration challenging a prior
judgment as either a motion “to alter or amend” under Federal Rule of Civil Procedure
59(e) or a motion for “relief from judgment” under Federal Rule of Civil Procedure
60(b). Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.
1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1076
(5th Cir. 1994).
The difference in treatment is based on timing. If the motion is filed within
twenty-eight days of the judgment, then it falls under Rule 59(e). FED. R. CIV. P.
59(e); Lavespere, 910 F.2d at 173. However, if the motion is filed more than twentyeight days after the judgment, but not more than one year after the entry of judgment,
it is governed by Rule 60(b). Fed. R. Civ. P. 60(c); Lavespere, 910 F.2d at 173. As
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Plaintiff has brought its claim within 28 days of this Court’s order granting summary
judgment, Plaintiff argues that Rule 59 is applicable. “However, an order dismissing
fewer than all of the claims in a complaint is an interlocutory order.” Namer v.
Scottsdale Ins. Co., 314 F.R.D. 392, 393 (E.D. La. 2016). This Court’s order did not
grant summary judgment on the unfair trade practices claims alleged against three
of the defendants. Thus, there has been no final judgment in this case. Interlocutory
orders should be amended pursuant to Rule 54(b), at any time before entry of a final
judgment. Fed. R. Civ. P. 54(b).
Nonetheless, this distinction is not material here, because “[t]he general
practice of courts in this district has been to evaluate motions to reconsider
interlocutory orders under the same standards that govern Rule 59(e) motions to alter
or amend a final judgment.” Namer, 314 F.R.D. at 393. Altering or amending a
judgment under Rule 59(e) is an “extraordinary remedy” used “sparingly” by the
courts. Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A motion to
alter or amend calls into question the correctness of a judgment and is permitted only
in narrow situations, “primarily to correct manifest errors of law or fact or to present
newly discovered evidence.” Id.; see also Schiller v. Physicians Res. Grp. Inc., 342 F.3d
563, 567 (5th Cir. 2003). Manifest error is defined as “[e]vident to the senses,
especially to the sight, obvious to the understanding, evident to the mind, not obscure
or hidden, and is synonymous with open, clear, visible, unmistakable, indubitable,
indisputable, evidence, and self-evidence.” In Re Energy Partners, Ltd., 2009 WL
2970393, at *6 (Bankr. S.D. Tex. Sept. 15, 2009) (citations omitted); see also Pechon
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v. La. Dep't of Health & Hosp., 2009 WL 2046766, at *4 (E.D. La. July 14, 2009)
(manifest error is one that “‘is plain and indisputable, and that amounts to a complete
disregard of the controlling law’”) (citations omitted).
The Fifth Circuit has noted that “such a motion is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have been offered or
raised before entry of judgment.” Templet, 367 F.3d at 478-79. Nor should it be used
to “re-litigate prior matters that . . . simply have been resolved to the movant’s
dissatisfaction.” Voisin v. Tetra Techs., Inc., No. 08-1302, 2010 WL 3943522, at *2
(E.D. La. Oct. 6, 2010). Thus, to prevail on a motion under Rule 59(e), the movant
must clearly establish at least one of three factors: (1) an intervening change in the
controlling law, (2) the availability of new evidence not previously available, or (3) a
manifest error in law or fact. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)
(finding that to win a Rule 59(e) motion, the movant “must clearly establish either a
manifest error of law or fact or must present newly discovered evidence”).
DISCUSSION
Plaintiff does not present new evidence and has not argued there has been an
intervening change in the controlling law. Thus, this Court will grant
Plaintiff’s Motion only if the Court finds that it has made some manifest error in
its analysis of the facts or the law.
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I.
Application of FIRREA’s Anti-Injunction Provision to PreReceivership Claims
This Court rejected Plaintiff’s argument that FIRREA makes a distinction
between pre and post receivership claims in the application of the Act’s antiinjunction provision—12 U.S.C. § 1821(j). Simply put, Plaintiff’s belief that this
Court’s statutory interpretation is incorrect falls well short of the bar of “manifest
error.” Manifest error of law is “wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th
Cir.2000) (citation omitted). Plaintiff has not cited to any controlling precedent that
this Court defied, therefore this Court may reject reconsideration on that ground.
Nevertheless, even upon further review, this Court remains convinced that Plaintiff’s
interpretation of FIRREA is incorrect. Upon final judgment, Plaintiff may appeal this
Court’s finding that FIRREA’s anti-injunction provision is not overridden by its
provisions allowing claims to be maintained in federal court while administrative
remedies are exhausted.
II.
Application of the Anti-Injunction Provision to the Revocatory
Action Alleged against Empire Express
Plaintiff’s second argument is that the Wagners Chef’s sale of assets for
$107,000.00 to Empire Express is not subject to the anti-injunction rule, because this
specific transaction is sufficiently isolated so that unwinding it would not restrain or
affect the FDIC’s powers to deal with the First NBC Loans. This argument was
waived by Plaintiff’s counsel at oral argument:
THE COURT: Well, that's why I asked [LNV’s Counsel], I
think he says you can't unwind one without unwinding them all.
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You're saying the same thing, right?
[PLAINTIFF’S COUNSEL]: Yes. It will.
THE COURT: It's like dominoes.
[PLAINTIFF’S COUNSEL]: Yes.
“A motion for reconsideration may not be used to rehash rejected arguments
or introduce new arguments.” LeClerc v. Webb, 419 F.3d 405, 412 (5th Cir. 2005)). It
certainly may not be used to make an argument that counsel conceded at oral
argument.
III.
Plaintiff’s Unfair Trade Practices Claims against Dismissed
Defendants
Finally, Plaintiff alleges that this Court committed manifest error by not
finding its unfair trade practices allegations against the dismissed defendants
plausible. Although Plaintiff could not point to a decision from the Louisiana
Supreme Court recognizing the conduct alleged in the complaint constitutes an unfair
trade practice, this Court found that assisting a person or entity in defying a court
order of specific performance on a contract might constitute an unfair trade practice,
if the act was motivated by a desire to “hinder a person in his access to the courts and
the courts’ remedies.” (Rec. Doc. 46 at 14). This Court found that Plaintiff
had sufficiently supported such a claim against the single-member entities owned
by Mr. Jadallah Saed, but not against the other defendants which merely
transacted with the Saed-owned-entities.
Plaintiff now attempts to rehash arguments that this Court has already
rejected. For example, Plaintiff argues once again that Wagner World cancelled the
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lease and sold its gas station property as a part of a wide-ranging conspiracy
motivated by a desire to harm Plaintiff. Plaintiff provides no facts in support of this
conspiracy, but argues that an unlawful agreement among the defendants is selfevident from the described transactions. There are no alleged facts supporting an
inference of nefarious intent on the part of Wagner World.
The Court rejected
Plaintiff’s assertion that Wagner World’s sale of the property is itself indicative of an
unscrupulous act motivated by a desire to hinder Brother’s Petroleum’s right to
specific performance in its order and it rejects it now. The “natural explanation” for
the sale is the one that Wagner World’s counsel delivered at oral argument: Wagner
World made the decision to sell the property rather than continue leasing it in order
to extricate itself from an asset which was profitable, but heartburn inducing. See
Bell A. Corp. v. Twombly, 550 U.S. 544, 567 (2007). The sale was “not suggestive of
conspiracy.” Id.
Similarly, the timing of the formation of Empire Express suggests that that
entity was formed with the intention that it would be the operator of the gas station
property. That alleged fact does not support Plaintiff’s allegation that the entity was
engaged in a conspiracy to deny Plaintiff its right to specific performance of the
contract.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Reconsider (Rec. Doc.
47) is DENIED with prejudice.
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New Orleans, Louisiana, this 15th day of October, 2018.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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