R&O Construction Company v. New Creation Masonry, Inc. et al

Filing 134

ORDER Denying 126 and 127 Motions for District Judge to Reconsider Order. Proposed Joint Pretrial Order due by 7/19/2012. Signed by Judge Larry R. Hicks on 6/19/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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R&O CONSTRUCTION COMPANY,
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Plaintiff,
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v.
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ROX PRO INTERNATIONAL GROUP,
LTD.; et al.,

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Defendants.

2:09-cv-01749-LRH-LRL
ORDER

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Before the court is defendant Real Stone Source, LLC’s (“Real Stone”) motion for

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reconsideration of the court’s order granting in-part and denying in-part its motion for summary

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judgment on plaintiff R&O Construction Company’s (“R&O”) second amended complaint

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(Doc. #1241 ). Doc. #126. R&O filed an opposition to the motion (Doc. #128) to which Real Stone

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replied (Doc. #129).

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Also before the court is defendant Arizona Stone & Architectural Products NV, LLC’s

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(“Arizona Stone”) motion for reconsideration of the court’s order granting in-part and denying in-

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part its motion for summary judgment (Doc. #123). Doc. #127. R&O filed an opposition

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(Doc. #130) to which Arizona Stone replied (Doc. #131).

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Refers to the court’s docket number.

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I.

Facts and Background
This is a construction defect action. In September 2007, R&O entered into a contract with

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non-party Home Depot to act as the general contractor for a Home Depot store in Las Vegas,

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Nevada. R&O subcontracted the application of the required stone veneer to non-party

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New Creation Masonry Inc. (“New Creation”). New Creation purchased the stone veneer from

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defendant Arizona Stone. Defendant Real Stone acted as the distributor for the stone veneer and

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also produced the installation guidelines. Allegedly, the stone veneer failed and R&O was forced to

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make substantial structural repairs to the Home Depot store.

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On September 3, 2009, R&O filed its initial complaint against defendants Arizona Stone;

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Real Stone; Rox Pro International Groups, Ltd. (“Rox Pro”), the manufacturer; and WD Partners,

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Inc. (“WD Partners”), the project architect. Doc. #1. R&O filed a first amended complaint on

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February 5, 2010 (Doc. #22) and a second amended complaint on June 29, 2010 (Doc. #48). The

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second amended complaint alleges ten causes of action: (1) implied warranty of merchantability -

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Arizona Stone; (2) implied warranty of fitness for a particular purpose - Arizona Stone; (3) implied

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warranty of merchantability - Real Stone; (4) implied warranty of fitness for a particular purpose -

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Real Stone; (5) implied warranty of merchantability - Rox Pro; (6) implied warranty of fitness for a

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particular purpose - Rox Pro; (7) express warranty - Real Stone and Rox Pro; (8) express warranty -

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Arizona Stone, Real Stone, and Rox Pro; (9) negligent misrepresentation - WD Partners and

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Real Stone; and (10) breach of contract - WD Partners. Doc. #48.

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In response, both Real Stone and Arizona Stone filed motions for summary judgment (Doc.

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##77, 78 respectively) which were granted in-part and denied in-part by the court (Doc. ##124,

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123). In the court’s orders, the court granted defendants’ motions as to all claims except for breach

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of the implied warranty of merchantability - Arizona Stone (claim 1), breach of the implied

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warranty of merchantability - Real Stone (claim 3), and negligent misrepresentation - Real Stone

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(claim 9). See Doc. ##123, 124. Thereafter, defendants filed the present motions for

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reconsideration. Doc. ##126, 127.

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II.

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Discussion
Defendants bring their motion for reconsideration pursuant to Fed. R. Civ. P. 59(e). A

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motion under Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of

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finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d

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887, 890 (9th Cir. 2000). Rule 59(e) provides that a district court may reconsider a prior order

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where the court is presented with newly discovered evidence, an intervening change of controlling

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law, manifest injustice, or where the prior order was clearly erroneous. FED. R. CIV. P. 59(e); see

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also United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah

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County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
In their motions, defendants contend that there is newly discovered evidence that the

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installation guidelines produced by Real Stone, distributed to Arizona Stone, and then provided to

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New Creation with its purchase of the stone veneer have been subsequently approved by the Clark

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County Building Commission as appropriate to adhere stone veneer to outside building walls in

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Clark County, Nevada. See Doc. ##126, 126. Thus, defendants argue that based on this new

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evidence, there is no longer any disputed issue of material fact as to whether the installation

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guidelines were appropriate to adhere the stone veneer in this particular case. The court disagrees.

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The court has reviewed the documents and pleadings on file in this matter and finds that

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there are still disputed issues of fact concerning the appropriateness of the installation guidelines

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which precludes summary judgment. Initially, the court notes that there is no legal support for

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defendants’ proposition that because the Clark County Building Commission subsequently

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approved the installation guidelines that the court must discount all other evidence presented on

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this issue. Second, taking all the evidence before the court on this issue in the light most favorable

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to R&O as the non-moving party for summary judgment, the evidence presented by R&O’s expert,

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Dr. Paul W. McMullin (“Dr. McMullin”), establishes that the installation guidelines were only

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appropriate for fifteen (15) pound stones, not the twenty (20) pound stones that were used in the

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project. Doc. #96, McMullin Decl., Exhibit 2. Further, for such heavy stones the installation

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guidelines should have called for wall anchors in line with the international building code rather

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than the use of mortar. Id. Thus, regardless of defendants’ newly proffered evidence, there is still a

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disputed issue of material fact concerning the appropriateness of the installation guidelines.

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Accordingly, the court shall deny defendants’ motions for reconsideration.

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IT IS THEREFORE ORDERED that defendants’ motions for reconsideration
(Doc. ##126, 127) are DENIED.
IT IS FURTHER ORDERED that the parties shall have thirty (30) days from entry of this
order to file a proposed joint pre-trial order.

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IT IS SO ORDERED.

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DATED this 19th day of June, 2012.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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