Joan Cravens Construction, Inc. et al v. Deas Construction, Inc. et al
ORDER denying 237 Motion for Reconsideration Signed by District Judge Keith Starrett on 1/3/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JOAN CRAVENS, INC.
and JASON V. SMITH
CIVIL ACTION NO. 1:15-CV-385-KS-MTP
DEAS CONSTRUCTION INC., D/B/A
DEAS MILLWORK CO., and
WEATHER SHIELD MANUFACTURING, INC.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Reconsideration  filed by Defendant
Weather Shield Manufacturing, Inc.
After considering the submissions of the parties, the record, and
the applicable law, the Court finds that the Motion for Reconsideration is not well taken and should be
On November 11, 2015, Plaintiffs Joan Cravens, Inc. (AJCI@) and Jason V. Smith (ASmith@)
(collectively APlaintiffs@) filed this action against Defendants Deas Construction Inc. (ADeas@) and
Weather Shield Manufacturing, Inc. (AWeather Shield@) (collectively ADefendants@).
Many of the facts
in the case are disputed, but the following is a brief account of the factual history of the case as it relates
to the motions at bar.
This matter arises out of the purchase of windows for the construction of a home located in
Smith contracted with JCI to build this home, intending for it to be a Afortified@
home in order to qualify for certain insurance programs.
and Deas is a dealer for Weather Shield.
Weather Shield is a window manufacturer,
Deas was allowed to bid to provide windows for the project.
The procurement process for the windows involved multiple quotes submitted to Plaintiffs by Deas.
Plaintiffs noticed problems with the windows as they were being installed, with an entire sash of one
window falling out during the installation process.
After attempts to contact Defendants to remedy the
problems with the windows, Plaintiffs filed suit in this Court.
The Court granted in part and denied in part Weather Shield previous Motion for Summary
Judgment . The only claim against Weather Shield not dismissed by the Court in its previous
Order  is the breach of implied warranty of merchantability claim.
In that same Order , the
Court also denied Weather Shield=s Motion to Exclude Darius Grimes .
The denial of the
summary judgment motion as to the breach of implied warranty claim and the denial of the exclusion
of Darius Grimes are the issues Weather Shield now brings in its Motion for Reconsideration .
Standard of Review
AA motion asking the court to reconsider a prior ruling is evaluated . . . as a motion . . . under
Rule 59(e) . . . [when] filed within twenty-eight days after the entry of judgment . . . .@ Demahy v.
Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012).
Weather Shield=s Motion for
Reconsideration  was filed within this twenty-eight day period.
AA Rule 59(e) motion calls into question the correctness of a judgment.@ Templet v. Hydrochem
Inc., 367 F.3d 473, 478 (5th Cir. 2004). There are three grounds for altering or amending a judgment
under Rule 59(e): A(1) an intervening change in controlling law, (2) the availability of new evidence not
previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.@
Williamson Pounders Architects, P.C. v. Tunica Cnty., Miss., 681 F.Supp.2d 766, 767 (N.D. Miss.
Rule 59(e) motions are Anot the proper vehicle for rehashing evidence, legal theories, or
arguments that could have been offered or raised before the entry of judgment,@ Templet, 367 F.3d at
478, and they Ashould not be used to . . . re-urge matters that have already been advanced by a party.@
Nationalist Movement v. Town of Jena, 321 F.App=x 359, 364 (5th Cir. 2009). Reconsideration of a
previous order is Aan extraordinary remedy that should be used sparingly.@ Id.
Before filing a Rule
59(e) motion, parties Ashould evaluate whether what may seem to be a clear error of law is in fact simply
a point of disagreement@ with the Court. Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626
(S.D. Miss. 1990).
Breach of Implied Warranty of Merchantability
In its original motion, Weather Shield summarized its exclusion from liability under a breach
of implied warranty of merchantability claim by stating that it Asubmits [Royal Lincoln-Mercury Sales,
Inc. v.] Wallace[, 415 So.2d 1024 (Miss. 1982)], supra [sic], should result in dismissal of Count IX
In the alternative, Plaintiffs= claim cannot survive summary judgment because Weather
Shield manufactured and delivered exactly what Cravens ordered . . . .@ (Memo. in Support  at
Despite its own reliance on valid, yet inapplicable, precedent from 1982, Weather Shield now
argues that the Court was incorrect to rely on Hargett v. Midas International Corp., 508 So.2d 663 (Miss.
1987), in which the Mississippi Supreme Court held that manufacturers were liable under implied
This decision is valid precedent which has not been overturned by Mississippi Supreme
Court and which has been more recently cited favorably by other federal courts in this circuit for its
holding that a manufacturer can be liable under the implied warranty of merchantability. See Woods
v. Ramsey, 199 F.3d 437 (5th Cir. 1999) (citing Hargett for holding that); Indemnity Ins. Co. of N. Am.
v. Deere & Co., No. 2:11-CV-260-GHD-JMV, 2012 WL 4434718, at *5 (N.D. Miss. Sept. 24, 2012).
The Court therefore does not find the date of the Hargett decision to be grounds for reconsideration.
Weather Shield also reiterates its previous arguments that the 1998 amendments to Miss. Code
Ann. ' 75-2-314,1
Mississippi=s codification of the implied warranty of merchantability, preclude a
manufacturer from being liable under an implied warranty of merchantability.
Even if reconsideration
of a ruling were proper on an argument previously submitted to and overruled by the Court, see
Nationalist Movement, 321 F.App=x at 364, this argument is undermined by the official comments of
the statute it is made under and by subsequent rulings of other courts.
The official comments of ' 75-
2-314 specifically state that Athe absence of the words >grower or manufacturer or not= . . . does not
restrict applicability of this section.@
' 75-2-314 cmt. 2.
Furthermore, Woods and Indemnity, both
citing Hargett for its holding that the implied warranty of merchantability is applicable to manufacturers,
See Woods, 199 F.3d at 437; Indemnity, 2012 WL
were decided after these amendments were made.
Weather Shield also makes the argument that '' 75-2-315 and 316 precludes liability.
Section ' 75-2-315 deals only with the implied warranty of fitness for a particular purpose, and that
claim has already been dismissed against Weather Shield. Section ' 75-2-316 deals with the
modification and exclusion of warranties, and there has been no allegation that any attempt, whether
valid or not, has been made to disclaim a warranty.
4434718, at *5.
Weather Shield=s argument, then, that the statute=s subsequent amendments preclude
application to manufacturers is incorrect.
For the first time in its Motion for Reconsideration , Weather Shield cites the Court=s
previous decision in Elliot v. Amadas Indus., Inc., 796 F.Supp.2d 796, 813 (S.D. Miss. 2011), in which
the Court held that manufacturers were not liable under implied warranties.
properly before the Court as it was never presented in the original motion.
This argument is not
See Templet, 367 F.3d at
However, the Court can only assume that, when it was deciding Elliot, it was not made aware of
the existence of Hargett, as the basic principles of comity and federalism require the Court to give effect
to its holding that manufacturers are liable under implied warranties. See James v. State Farm Mut.
Auto. Ins. Co., 743 F.3d 65, 69 (5th Cir. 2014) (quoting Westlake Petrochems., LLC v. United
Polychem, Inc., 688 F.3d 232, 238 n.5 (5th Cir. 2012) (ATo determine issues of state law, we look to
final decisions of the state=s highest court . . . .@)
Therefore, even if this argument were properly before
the Court, it would not be persuasive.
Weather Shield also argues that there is insufficient evidence to support a claim for a breach of
implied warranty of merchantability because Plaintiffs= evidence that the windows were not
merchantable is inadmissible or otherwise unreliable.
Most of these arguments were not presented in
its original Motion for Summary Judgment , and are therefore not properly before the Court now.
See Templet, 367 F.3d at 478. To the extent that these arguments were present in the original motion,
they are merely being re-urged due to Weather Shield=s disagreement with the Court=s previous ruling,
which is not the proper basis for a motion for reconsideration. See Nationalist Movement, 321 F.App=x
In its previous motion, Weather Shield never argued that Plaintiffs could not meet their
burden to show that the windows were not fit for their ordinary use as windows. Instead, Weather
Shield misunderstood Plaintiffs= claim to be that the implied warranty of merchantability was breached
because the windows did not meet the project requirements. (See Memo. in Support  at p. 22.)
As such, these arguments, which could have been introduced in its original motion but were not, are not
the proper basis for reconsideration.
Because all of its arguments fail, Weather Shield=s Motion for Reconsideration  will be
denied as to the claim for breach of implied warranty of merchantability.
Motion to Exclude
In its Motion for Reconsideration , Weather Shield contends that the Court erred in denying
its Motion to Exclude Darius Grimes . In doing so, Weather Shield does nothing more than
reiterate its arguments from its original motion.
As previously stated, Weather Shield=s Motion for
Reconsideration  is Anot the proper vehicle for rehashing evidence, legal theories, or arguments
that could have been offered or raised before the entry of judgment,@ Templet, 367 F.3d at 478, and they
Ashould not be used to . . . re-urge matters that have already been advanced by a party.@
Movement, 321 F.App=x at 364. In its Order , the Court correctly stated the standard of review
under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L.Ed.2d 469 (1993), and applied that standard in light of the arguments before it.
The fact that Weather Shield disagrees with the Court=s application of the standard is not a proper basis
for reconsideration of the Court=s ruling.
See Atkins, 130 F.R.D. at 626.
The Motion for
Reconsideration  of this ruling will therefore be denied.
IT IS THEREFORE ORDERED AND ADJUDGED that Weather Shield=s Motion for
Reconsideration  is denied.
SO ORDERED AND ADJUDGED this the
day of January, 2017.
UNITED STATES DISTRICT JUDGE
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