Martin v. Bimbo Food Bakeries Distribution, Inc.

Filing 69

ORDER denying 59 Motion for Reconsideration. Signed by Senior Judge W. Earl Britt on 6/8/2015. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:14-CV-17-BR
JOHN T. MARTIN,
Plaintiff,
v.
BIMBO FOODS BAKERIES
DISTRIBUTION, LLC, f/k/a
GEORGE WESTON BAKERIES
DISTRIBUTION, INC.,

ORDER

Defendant.

This matter comes before the court on defendant Bimbo Foods Bakeries Distribution,
LLC, f/k/a George Weston Bakeries Distribution, Inc.’s (“BFBD” or “defendant”) motion for
reconsideration. (DE # 59.) Plaintiff John T. Martin (“Martin” or “plaintiff”) filed a response,
(DE # 65), to which BFBD replied, (DE # 68). This matter is now ripe for disposition.
I. BACKGROUND
By order dated 23 April 2015, this court denied BFBD’s motion for summary judgment
on Martin’s breach of contract and unfair and deceptive trade practices claims. (DE # 53.) The
court found that a genuine dispute of material fact exists as to whether BFBD improperly
terminated Martin’s Distribution Agreement (“Agreement”); namely, whether BFBD’s stated
reason for termination was merely pre-text for retaliating against Martin for his participation in a
committee which spoke out against changes in BFBD’s pricing policy. (Id. at 7.) BFBD,
pursuant to Federal Rule of Civil Procedure 54(b), now asks the court to reconsider its order
“because [it] believes the Court overlooked well settled law entitling BFBD to summary
judgment in light of the Court’s other findings.” (DE # 59, at 1.)

III. DISCUSSION
A motion to reconsider an interlocutory order is appropriate only in “certain, limited
circumstances.” Wiseman v. First Citizens Bank & Trust Co., 215 F.R.D 507, 509 (W.D.N.C.
2003). It is proper where:
the Court has patently misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has made an error not
of reasoning but of apprehension. A further basis for a motion to reconsider
would be a controlling or significant change in the law or facts since the
submission of the issue to the Court. Such problems rarely arise and the motion
to reconsider should be equally rare.
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).
Although rare, such motions “are not subject to the strict standards applicable to motions for
reconsideration of a final judgment,” as the court “retains the power to reconsider and modify its
interlocutory judgments.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515-16 (4th
Cir. 2003).
Generally, a party should not use a motion for reconsideration to raise new arguments.
See Bramwell v. Perdue, No. 5:14CV7, 2015 WL 251419, at *2 (N.D. W. Va. Jan. 20, 2015)
(“[M]otions to reconsider should not be used to raise new arguments or present new theories.”).
[A] party who fails to present his strongest case in the first instance generally has
no right to raise new theories or arguments in a motion to reconsider. Renfro v.
City of Emporia, 732 F.Supp. 1116, 1117 (D. Kan. 1990); Butler v. Sentry
Insurance, 640 F.Supp. 806, 812 (N.D. Ill. 1986). The court is not required to
supply the rationale that the parties were unable to find. See Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“court will not construct
arguments or theories for the [litigants] in the absence of any discussion of those
issues”).
Fid. State Bank v. Oles, 130 B.R. 578, 581 (D. Kan. 1991) (cited approvingly in United States v.
Duke Energy Corp., 218 F.R.D. 468, 473-74 (M.D.N.C. 2003) (Eliason, M.J., order), aff'd, No.
1:00CV1262, 2012 WL 1565228 (M.D.N.C. Apr. 30, 2012)).

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In its motion for reconsideration, BFBD, for the first time, argues that it is irrelevant
whether it was motivated by improper, retaliatory motives, so long as it had a legal right to
terminate Martin’s agreement. (Def.’s Mem., DE # 60, at 2-4 (providing string cite of case law
standing for this proposition).) BFBD contends that the undisputed evidence shows that Martin
committed fraud, thus entitling it to terminate the Agreement. (Id. at 2.) It states, “BFBD is
emphatic that it terminated Plaintiff’s Agreement solely on the basis of his fraudulent conduct,
but, even if that were not the case, BFBD has a [sic] unequivocal right to terminate the
Agreement and it thus is entitled to Summary Judgment on all claims brought by Plaintiff.” (Id.
at 5-6.)
To be sure, BFBD argued in its memorandum in support of its summary judgment motion
that Martin breached the Agreement by committing fraud. (DE # 47, at 2.) However, BFBD
used evidence of Martin’s alleged fraud only to support its ultimate contention that there was no
pre-text for the termination. BFBD stated:
This fraud is the sole reason for the termination of Plaintiff’s Distribution
Agreement. Plaintiff has no evidence that shows BFBD terminated his
Distribution Agreement for any reason other than the fraud he committed. The
uncontroverted evidence instead shows that BFBD properly terminated its
Agreement with Plaintiff with good and valid cause as a direct result of Plaintiff’s
breach. There was no pre-text for the termination.
(Id.) The court disagreed, finding that a genuine question of material fact exists as to whether
there was pre-text for the termination. (DE # 53, at 7.) In its memorandum in support of its
summary judgment motion, BFBD never argued that Martin’s alleged breach of the Agreement
rendered any evidence of pre-text irrelevant. Rather, it persisted in its argument that Martin’s
alleged breach proved there was no pre-text. (See DE # 47, at 19 (“There is not a single piece of
evidence that BFBD terminated Plaintiff’s Distribution Agreement for anything other than his

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breach of that Agreement.”).) Further, none of the case law that BFBD cites in support of its
new theory was cited in its memorandum supporting its summary judgment motion.
Even assuming that BFBD correctly cites the controlling law in support of its instant
motion, the court did not decide as a matter of law the issue of whether Martin committed fraud
under the terms of the Agreement. The only question the court decided was whether a genuine
dispute of material fact exists as to pre-text. Thus, even if BFBD’s ulterior motives are legally
irrelevant, the question of whether it had a legal right to terminate the Agreement still remains.
IV. CONCLUSION
Based on the foregoing, BFBD’s motion for reconsideration, (DE # 59), is DENIED.
This 8 June 2015.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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