DARNEY et al v. DRAGON PRODUCTS COMPANY LLC

Filing 171

ORDER ON MOTION TO AMEND By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN AND KATHY DARNEY,
Personally and on behalf of K.D. and S.D.,
Plaintiffs,
v.
DRAGON PRODUCTS COMPANY,
LLC,
Defendant.

)
)
)
)
)
) Docket No. 2:08-cv-47-GZS
)
)
)
)
)
)

ORDER ON MOTION TO AMEND
Before the Court is Plaintiffs’ Motion to Amend and to Make Additional Findings of Fact
& Conclusions of Law (“Pls.’ Mot.”) (Docket #169). As explained herein, this Motion is
GRANTED IN PART WITHOUT OBJECTION and DENIED IN PART.
Federal Rule of Civil Procedure 52(b) provides that the Court, “[o]n a party’s motion, …
may amend its findings—or make additional findings—and may amend the judgment
accordingly.” Fed. R. Civ. P. 52(b). Motions under Rule 52(b), however, are “not intended to
allow parties to rehash old arguments already considered and rejected by the trial court.” Nat’l
Metal Finishing Co. v. BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 123 (1st Cir. 1990)
(citation omitted). Rather, they are to “permit the correction of any manifest errors of law or fact
that are discovered, upon reconsideration, by the trial court.” Id. See also Dash v. Chicago Ins.
Co., No. Civ.A 00-11911-DPW, 2004 WL 2337021, at *1 (D. Mass. Oct. 18, 2004) (“A Rule
52(b) motion is meant to correct, clarify, or amplify the findings and is not meant to provide an
avenue for relitigating issues on which the moving party did not prevail at trial.”) (citation and
internal punctuation omitted).

In their Motion, Plaintiffs propose amending or adding to thirty of the Court’s eighty-six
Findings of Fact, upon which the Court relied in concluding that Plaintiffs failed to prove any of
their claims. (See Findings of Fact & Conclusions of Law (“FF & CL”) (Docket # 167) at 48.)
Defendant agrees with Plaintiffs that the Court should make two amendments to its Findings of
Fact. (See Def.’s Opp’n to Pls.’ Mot. (“Def.’s Opp’n”) (Docket # 170) at 14.)
First, although the evidence received at trial indicated that Chemrock is located on Old
County Road (see Tr. of Proceedings (“Tr.”) Vol. III (Docket # 154) at 558), the Court now takes
judicial notice that Chemrock is, according to both parties, in fact located on Buttermilk Lane. 1
(See Pls.’ Mot. at 4; Def.’s Opp’n at 3). Thus, Finding of Fact No. 17 2 is amended to read as
follows:
17. Ferraiolo Concrete Products leases property from Dragon and operates a rock
crusher on or near the quarry. Ferraiolo is separately licensed by the State of
Maine. Chemrock, a company that makes perlite (an amendment to soil made out
of obsidian or glass), is located on Buttermilk Lane.
Second, Defendant agrees with Plaintiffs that Finding of Fact No. 28 should be amended for the
sake of clarification, but disagrees with the specific changes proposed by Plaintiffs. Defendant
has provided an explanation and appropriate record citations for its suggested amendments;
Plaintiffs have not. (See Def.’s Resp. at 5-6; Pls.’ Mot. at 6.) Thus, incorporating only the

1

The evidence before the Court does not additionally show, as the Plaintiffs assert without providing any record
citation, that perlite “does not include calcium or calcium oxide, as cement does.” (Pls.’ Mot. at 4). In fact,
Plaintiffs’ own witness Richard Marriner specifically testified to the contrary, stating that, though minimal, “there is
some calcium in perlite”. (Tr. Vol. III at 559.) In any event, this proposed amendment is unnecessary given that the
Court has already concluded that “Plaintiffs have proven by a preponderance of the evidence that dust from
Dragon’s operations has accumulated on their property.” (FF & CL at 18.)
2

Finding of Fact No. 17 originally read: “Ferraiolo Concrete Products leases property from Dragon and operates a
rock crusher on or near the quarry. Ferraiolo is separately licensed by the State of Maine. Chemrock, a company
that makes perlite (an amendment to soil made out of obsidian or glass), is also located on Old County Road.” (FF
& CL at 3.)

2

changes proposed by Defendant, the Court hereby amends and amplifies Finding of Fact No. 28 3
to read as follows:
28. Waste clinker is stockpiled in an approximately thirteen acre area on the east
side of the plant (the “Waste Clinker pile”). (See Tr. Vol IV (Docket # 155) at
922.) This waste product is off-specification clinker. (See id. at 923.) A second
stockpile containing CKD was stockpiled to the west of the plant and is
approximately fourteen acres in size (the “CKD pile”). (See id. at 916-17; Tr.
Vol. II (Docket # 153) at 273.) The material is “solid” and “compacted.” (Id. at
243; see also Pls.’ Ex. 118.2 (photos of the CKD pile).)
In short, to the extent Plaintiffs seek to amend the Court’s Findings of Fact Nos. 17 and 28, the
Motion is GRANTED IN PART WITHOUT OBJECTION.
To the extent Plaintiffs seek to amend twenty-eight additional findings of fact and/or
make additional findings of fact and conclusions of law, this Motion is DENIED. In their rather
unconventional motion, Plaintiffs have provided the Court with only a copy of its original
Findings of Fact & Conclusions of Law with proposed amendments signaled via a word
processing program “track changes” feature. Plaintiffs have offered no explanation as to why
each proposed amendment should be made, and more often than not have provided no record
citation. In the Court’s assessment, none of the proposed amendments seek to correct any
“manifest errors” of fact. Nat’l Metal Finishing Co., 899 F.2d at 123. Indeed, Plaintiffs have
made no effort to explain how any of the Court’s Conclusions of Law would change as a result
of any of its proposals. In fact, Plaintiffs have left a number of the Court’s pivotal factual
findings largely or entirely intact (see, e.g., Findings of Fact Nos. 42-43, 55-56, 59, 76-78, & 8285). In short, Plaintiffs’ proposed amendments and changes amount to nothing more than
“rehash[ed] old arguments already considered and rejected” by this Court. Nat’l Metal Finishing
Co., 899 F.2d at 123.
3

Finding of Fact No. 28 originally read: “Waste clinker and other waste material are stockpiled in an approximately
thirteen acre area on the east side of the plant (the “CKD pile”). This waste product is “solid” and “compacted.”
(See Tr. Vol. II at 243; see also Pls.’ Ex. 118.2 (photos of the CKD pile).)” (FF & CL at 5.)

3

Thus, with the previously described amendments to paragraphs 17 and 28, the Court
concludes that its Findings of Fact are accurate and adequate. As explained herein, Plaintiffs’
Motion to Amend is GRANTED IN PART WITHOUT OBJECTION and otherwise DENIED.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 23rd day of May, 2011.

4