Gines v. D. R. Horton, Inc. et al

Filing 75

RULING denying 64 Motion for Reconsideration re 62 Order on Motion to Dismiss filed by Mike Gines. Signed by Judge James J. Brady on 10/20/2011. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MIKE GINES

CIVIL ACTION

VERSUS

No. 08-598

D.R. HORTON, INC., ET AL.
RULING ON MOTION FOR RECONSIDERATION
This matter is presently before the Court on plaintiff Mike Gines’ (“Gines”)
motion for reconsideration (Doc. 64) of this Court’s July 28, 2011 ruling granting
defendant D.R. Horton, Inc.’s (“Horton”) motion to dismiss (Doc. 62). In that ruling,
the Court found the Louisiana New Home Warranty Act (“NHWA”) provides the
exclusive remedy for Gines’ complaint. The Court further found that Gines did not
state a claim under the NHWA.
Federal Rule of Civil Procedure 54(b) provides that courts may reconsider
interlocutory orders or decisions. Courts thus retain jurisdiction over all the claims
in a suit and may alter its earlier decisions until final judgment has been issued. See
Livingston Downs v. Jefferson Downs, 259 F.Supp.2d 471, 475 (M.D. La. 2002)
(citing Zapata Gulf Marine, Inc., 925 F.2d 812, 815 (5th Cir. 1991). District courts
have consideration discretion in deciding whether to reconsider an interlocutory
order. Id. Motions for reconsideration based upon the same arguments merely
waste the limited time and resources of the Court. van Heerden v. Bd. of Sup’rs of
La. State Univ. and Agricultural and Mechanical College, No. 10-155, 2010 WL
2545746, at *1 (M.D. La. June 21, 2010). Similarly, courts generally decline to

consider arguments raised for the first time on reconsideration without adequate
justification. McClung v. Gautreaux, No. 11-263, 2011 WL 4062387, at *1 (M.D. La.
September 13, 2011).
Gines moves to reconsider, asserting this Court made its ruling “without
considering the terms of the written contract and whether the ‘physical damage’
limitation of the [NWHA] was superseded by the express terms of the contract.”
(Memo. in Supp. of Motion for Reconsideration, Doc. 64-2, p. 1). In Gines’ amended
complaint (Doc. 36), he for the first time alleged breach of contract. Gines failed to
attach the contract to either his amended complaint or in his opposition memoranda
to Horton’s motion to dismiss. In short, Gines wishes for the Court to reconsider its
ruling that the NHWA provides the sole remedy for his complaint against Horton by
referring to the express terms of the contract even though he failed to attach the
contract to any of his pleadings or motions. The contract at issue was attached to
Horton’s removal motion (Doc. 2-5), but for the limited purpose of establishing the
amount in controversy met the requirements of diversity jurisdiction sufficient to
invoke the removal statute. Because Gines wishes for the Court to do what Gines
has implicitly prohibited the Court from doing, that fact alone is grounds for denying
his motion for reconsideration.
To be clear, Gines’ reference to the terms of the contract as a grounds for
expanding the baseline NHWA warranty is meritless. He asserts that the following
language creates an express warranty which goes above the floor set by the NHWA:
“Seller agrees to build the house in accordance with industry standard building

practices substantially in compliance with plans and specification agreed to by Seller
and Buyer. . . .” (Contract of Sale, Doc. 2-5, p. 2, ¶ 6). Of course, referring to the
express terms of the contract would require the Court to refer to all the terms of the
contract. Horton points to a more compelling passage, which reads:
BUYER HAS BEEN PROVIDED A COPY OF THE LOUISIANA NEW HOME
WARRANTY ACT (LA. REV. STAT. 9:3141, ET SEQ) AND HAS READ AND
U N D E R ST ANDS T HE P R O V I SI O N S T HER E O F . BU YE R
ACKNOWLEDGES THAT THE LOUISIANA NEW HOME WARRANTY ACT
IS PROVIDED IN LIEU OF ALL OTHER WARRANTIES, ORAL
AGREEMENTS, OR REPRESENTATIONS, AND SELLER MAKES NO
WARRANTY, EXPRESSED OR IMPLIED, AS TO THE QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR OTHERWISE,
EXCEPT AS IS EXPRESSLY SET FORTH IN THE LOUISIANA NEW
HOME WARRANTY ACT.
(Contract of Sale, Doc. 2-5, p. 2, ¶ 13) (all caps in original). It is adamantly clear
that, regardless of whether the Court refuses to refer to the contract (and thus stands
on its original ruling) or invokes the terms of the contract (thus reconsidering
according to Gines’ motion), the decision to grant Horton’s motion to dismiss
remains sound.
CONCLUSION AND ORDER
Accordingly, the motion for reconsideration is hereby DENIED.
Baton Rouge, Louisiana, October 20, 2011.

S
JAMES J. BRADY, JUDGE
MIDDLE DISTRICT OF LOUISIANA