B&S Transport, Inc. et al v. Bridgestone Americas Tire Operations, LLC et al

Filing 143

Memorandum Opinion and Order: Plaintiffs' motion for reconsideration is granted. (Doc. No. 140 .) For all of the foregoing reasons, having reconsidered in light of plaintiffs' motion, the Court adheres to its original decision. (Doc. No. 138 ). Judge Sara Lioi on 11/17/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

B&S TRANSPORT, INC., et al.,
PLAINTIFFS,

vs.

BRIDGESTONE AMERICAS TIRE
OPERATIONS, LLC, et al.,
DEFENDANTS.

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CASE NO. 5:13-cv-2793
JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER

This matter is before the Court on motion of plaintiffs B&S Transport, Inc.
(“B&S”) and Ronnie Harris (“Harris”) (collectively, “plaintiffs”) for reconsideration of
the Court’s memorandum opinion (Doc. No. 138 [“MO”]) denying plaintiffs’ motion for
partial summary judgment, and granting the motion for summary judgment of defendants
Bridgestone Americas Tire Operations, LLC (“BATO”) and Bridgestone Americas, Inc.
(“BA”) (collectively, “defendants”). (Doc. No. 140 [“Mot.”].) Defendants opposed the
motion for reconsideration (Doc. No. 141 [“Opp’n”]),1 and plaintiffs filed a reply (Doc.
No. 142 [“Reply”]).

Defendants suggest in their opposition that plaintiffs’ motion should be stricken for non-compliance with
court orders and local rules. (See Opp’n at 5920.) While defendants’ suggestion has merit, the Court will
nonetheless proceed with an analysis of the motion. (All references to page numbers are to the page
identification numbers generated by the Court’s electronic filing system).
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I. BACKGROUND
The factual background of this case is detailed in the Court’s memorandum
opinion from which plaintiffs seek reconsideration. (See MO at 5866-69.) Briefly, Harris,
who is African-American, founded B&S, which is owned by Harris and his wife. In 1991,
B&S became an authorized dealer of Bridgestone tires; the federal government is its
primary customer. Defendants notified plaintiffs in February 2013 that they were
terminating B&S’s dealership agreement effective December 31, 2013. Plaintiffs contend
that defendants terminated the dealership because of race, and brought a complaint
asserting one federal claim of race discrimination pursuant to 42 U.S.C. § 1981, as well
as state law claims.
The parties filed cross motions for summary judgment. Plaintiffs’ motion for
partial summary judgment was denied and defendants’ motion for summary judgment
was granted. In so ruling, the Court found that plaintiffs failed to establish that there was
a genuine dispute of material fact with respect to the fourth element of a prima facie case
of race discrimination under the McDonnell Douglas/Burdine burden-shifting
framework.2 (MO at 5882.)

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Under that three-part framework, if plaintiffs sustain their initial burden of establishing a prima facie case,
then the burden shifts to defendants to articulate a legitimate, non-discriminatory reason for terminating the
dealership agreement. If defendants can sustain this burden of production, then the burden shifts back to
plaintiffs to advance evidence that defendants’ justification is a pretext for intentional discrimination.
McDonnell Douglas, Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). A plaintiff may establish
a prima face case of race discrimination by showing that “1) he is a member of a protected class; 2) he was
qualified for the job and performed it satisfactorily; 3) despite his qualifications and performance, he
suffered an adverse employment action; and 4) he was replaced by a person outside the protected class or
was treated less favorably than a similarly situated individual outside of his protected class.” Wheat v. Fifth
Third Bank, 785 F.3d 230, 237 (6th Cir. 2015) (quoting Laster v. City of Kalamazoo, 746 F.3d 714, 727
(6th Cir. 2014) (citing McDonnell Douglas, 411 U.S. at 802)).

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Notwithstanding the Court’s finding regarding the fourth element, the Court
assumed, for the purpose of analysis, that plaintiffs were able to establish a prima facie
case, and proceeded to consider defendants’ non-discriminatory reason for terminating
plaintiffs’ dealership agreement and, then, whether that reason is a pretext for race
discrimination. (See MO at 5882-83.) The Court found that plaintiffs advanced no
evidence from which a reasonable jury could conclude that defendants’ stated reason for
terminating plaintiffs’ tire dealership was a pretext for race discrimination. (MO at 5889.)
In their motion, plaintiffs claim that the Court erred in concluding that: (1)
plaintiffs did not establish the fourth element of a prima facie case of race discrimination;
and (2) there was insufficient evidence from which a reasonable jury could conclude that
defendants’ stated reason for terminating plaintiffs’ dealership was a pretext for race
discrimination.
II. DISCUSSION
A. Standard of Review
As plaintiffs note at the outset, the federal rules of civil procedure do not provide
for motions for reconsideration. Such motions are typically treated as a motion to alter or
amend the judgment under Fed. R. Civ. P. 59(e). McDowell v. Dynamics Corp. of
America, 931 F.2d 380, 382 (6th Cir. 1991) (citing Smith v. Hudson, 600 F.2d 60, 62 (6th
Cir. 1979)). The purpose of Rule 59(e), however, is not to provide an unhappy litigant
with an opportunity to relitigate issues already considered and rejected by the Court.
Morgantown Mach. & Hydraulics of Ohio, Inc. v. Am. Piping Prod., Inc., No. 5:15-CV1310, 2016 WL 3555431, at *3 (N.D. Ohio June 30, 2016) (citation omitted). In other
words, a motion for reconsideration is not a substitute for appeal. See CitiMortgage, Inc.

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v. Nyamusevya, No. 2:13-CV-00680, 2015 WL 1000444, at *4 (S.D. Ohio Mar. 5, 2015)
(citing Gore v. AT & T Corp., No. 2:09–CV–854, 2010 WL 3655994, *1 (S.D. Ohio Sept.
14, 2010) (“Motions for reconsideration should not be used as a substitute for appeal nor
should they be used as a vehicle for mere disagreement with a district court’s opinion.”)).
Neither is a Rule 59(e) motion properly used to advance a new legal theory or evidence to
support a prior argument when either or both, with due diligence, could have been
discovered and offered during the initial consideration of the issue. McConocha v. Blue
Cross and Blue Shield Mut. of Ohio, 930 F. Supp. 1182, 1184 (N.D. Ohio 1996) (citation
omitted).
Generally, only three situations justify a district court in altering or amending its
judgment: (1) to accommodate an intervening change in controlling law; (2) to account
for new evidence not available at trial; or (3) to correct a clear error of law or to prevent a
manifest injustice. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x
949, 959 (6th Cir. 2004) (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D.
Ohio 1998)); see also Huff v. FirstEnergy Corp., No. 5:12CV2583, 2014 WL 2441768, at
*2 (N.D. Ohio May 29, 2014) (The party seeking to alter or amend judgment under Rule
59(e) “‘must either clearly establish a manifest error of law or must present newly
discovered evidence.’”) (quoting Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477
F.3d 383, 395 (6th Cir. 2007)).
B. Analysis
Plaintiffs do not contend that there has been an intervening change in law or new
evidence. Rather, plaintiffs argue that the Court committed an error of law. An error
occurs where the Court exhibits a “wholesale disregard, misapplication, or failure to

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recognize controlling precedent.” Huff, 2014 WL 2441768, at *2 (internal quotation
marks and citation omitted); Jackson v. Ford Motor Co., No. 15-1180, 2016 WL
4533028, at *1 (W.D. Tenn. Mar. 21, 2016) (“A ‘clear error of law’ occurs where the
original ruling overlooked or disregarded some argument or controlling authority or
where the moving party successfully points out a manifest error[.]”) (some internal
quotation marks omitted) (quoting United States v. Ladeau, No. 3:10-CR-00242-1, 2012
WL 5838125, at *2 (M.D. Tenn. Nov. 15, 2012) (further citation omitted)).
1. Prima facie case
Plaintiffs’ argument that B&S was replaced
Plaintiffs contend that the Court erred in concluding that Pomp’s and Southern
Tire Mart (both Caucasian owned dealerships) did not replace B&S with respect to
government sales when B&S’s dealership was terminated, and argues pages of record
evidence in support of that position. (Mot. at 5908-11.) Plaintiffs did not argue on
summary judgment, however, that they satisfied the fourth element of a prima facie case
because B&S was replaced by a dealer outside the protected class. (See Doc. No. 106 at
4454-57; Doc. No. 87 at 1390-92.) As the Court notes in its ruling, plaintiffs’ treatment
of the issue of replacement was limited to a single sentence in plaintiffs’ reply brief. (MO
at 5878 n.5.)
Plaintiffs’ current arguments of fact and law on the issue of replacement do not
establish error by the Court. Those arguments were not advanced by plaintiffs on the
parties’ cross motions for summary judgment, but could have been, and do not now
provide a basis upon which the Court should depart from its decision. See McConocha,
930 F. Supp. at 1184; Arrowood Indem. Co. The Lubrizol Corp. v. United States Fire Ins.

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Co., No. 1:10 CV 2871, 2015 WL 12743583, at *3 (N.D. Ohio Mar. 31, 2015), aff’d sub
nom. Arrowood Indem. Co. v. Lubrizol Corp., No. 16-3463, 2017 WL 2377936 (6th Cir.
June 1, 2017) (quoting McConocha, 930 F. Supp. at 1184).
Plaintiffs’ argument that Pomp’s was similarly situated
On summary judgment, plaintiffs argued that B&S and Pomp’s were similarly
situated because both sold Bridgestone tires to the government. Defendants argued that
many of their dealers are authorized to sell tires to the government, and that dealer
attributes pertinent to the decision to terminate B&S’s dealership are the proper relevant
aspects of comparison for purposes of determining whether B&S and Pomp’s are
similarly situated.
As stated in the Court’s memorandum opinion, in order to be similarly situated,
Pomp’s and B&S need not be identical, but must be similar in all relevant aspects. In this
way, aggrieved parties in “unique” positions are not precluded from demonstrating that
they are similarly-situated to those outside the protected group. Ercegovich v. Goodyear
Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998). The Court concluded that tire
sales to the government was not a relevant aspect for comparison in the similarly situated
analysis because government sales had no bearing on the decision to terminate B&S’s
dealership. Finding defendants’ argument to be more persuasive, the Court concluded
that Pomp’s and B&S were not similarly situated based on comprehensive attributes of
the two Bridgestone tire dealers. (MO at 5878-82.)
Plaintiffs contend that the Court erred in so ruling because, drawing all reasonable
inferences in plaintiffs’ favor, the Court should have concluded that Pomp’s and B&S
were similarly situated based on tire sales to the government, and permitted plaintiffs to

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attempt to demonstrate pretext. (Mot. at 5901-02.) Plaintiffs point to Ortiz v. Norton, 254
F.3d 889 (10th Cir. 2001) in support, arguing that the Court’s determination of relevant
aspects for comparison between B&S and Pomp’s made their prima facie burden too
onerous and frustrated their opportunity to prove that defendants’ rationale for
terminating B&S’s dealership was pretextual. (Mot. at 5903-04, citing Ortiz, 254 F.3d at
894.) But plaintiffs’ disagreement with the Court’s conclusion regarding relevant aspects
for comparison between B&S and Pomp’s, and citation to a case from another district
that was not argued in their summary judgment briefing, does not establish that the Court
erred.
Plaintiffs also contend that the Court erred in concluding that they abandoned
their § 1981 pricing claim. Plaintiffs admit that they did not address pricing in opposing
defendants’ summary judgment motion, but argue that they raised pricing in their partial
summary judgment motion. (Mot. 5907.) The Court addressed this issue in the
memorandum opinion, noting that plaintiffs’ pricing arguments were not asserted in
support of plaintiffs’ race discrimination claim, but in support of their state law claims for
breach of contract and implied covenant of good faith. As previously explained, it is not
the Court’s role or responsibility to piece together, on behalf of plaintiffs, arguments
opposing defendants’ motion for judgment on plaintiffs’ race discrimination claim. (See
MO at 5890 n.13.)
In any event, although the Court concluded that plaintiffs failed to establish
genuine dispute of material fact as to their prima facie case, the Court went on to assume
that they had, and proceeded with the McDonnell Doulas/Burdine analysis. (MO at

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5883.) Because of this assumption, it is arguably unnecessary for the Court to even
address plaintiffs’ motion for reconsideration regarding the Court’s prima facie analysis.
That said, the motion does not establish that the Court’s analysis of plaintiffs’
prima facie case demonstrated a wholesale disregard or misapplication of the law, or
failure to recognize controlling precedent. See Huff, 2014 WL 2441768, at *2. Plaintiffs’
motion consists of rearguing facts and law from their summary judgment briefing, or
making new arguments that were available to plaintiffs, but not presented to the Court, in
their initial briefing. Neither provides a basis upon which the Court should depart from its
original decision. See Morgantown Mach., 2016 WL 3555431, at *3; McConocha, 930 F.
Supp. at 1184.
2. Pretext
Plaintiffs also contend the Court erred in concluding that they failed to show
defendants’ reason for terminating plaintiffs’ dealership was a pretext for race
discrimination because: (1) defendants’ reason does “not logically justify termination”
because it makes more sense to require a dealer to comply than to terminate the
dealership (Mot. at 5912); (2) defendants did not require plaintiffs to change their
business model (id.); (3) defendants changed their market strategy in 2007 but did not
terminate plaintiffs’ dealership until 2013 (id.); (4) defendants did not want plaintiffs to
change their business model because of competition with other regional dealers (id.,
citing Doc. No. 84-4 ¶ 4)3; (5) defendants have scant internal documentation of their new
business strategy and why that strategy supported terminating plaintiffs’ dealership (id. at
5913); (6) defendants took no steps to evaluate plaintiffs’ government sales and whether
Plaintiffs’ summary judgment briefing, either on their own motion or in opposition to defendants’ motion,
did not present this argument.
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terminating plaintiffs’ dealership would improve defendants’ profits; (id. at 5913-14);
and (7) the only dealership terminated because of defendants’ change in strategy was the
only African-American owned dealer authorized to sell tires to the government (id. at
5914). Citing Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012),4 plaintiffs argue that
this evidence is sufficient to rebut defendants’ rationale, and the Court erred in
concluding otherwise.
Once again, plaintiffs are simply advancing arguments that were either previously
considered by the Court, or were not presented to the Court (but could have been) for
initial consideration of the dispositive motions. (See MO at 5883-88; Doc. No. 87 at
1392-1395; Doc. No. 106 at 4457-4462; and Doc. No. 109 at 4999-5003). Plaintiffs’
mere disagreement with the Court’s pretext analysis, and assertion of belated theories and
arguments, does not demonstrate error, nor provide a basis upon which the Court should
depart from its original decision. See Morgantown Mach., 2016 WL 3555431, at *3;
McConocha, 930 F. Supp. at 1184.

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In Griffin, the Sixth Circuit found that the district court erred in requiring plaintiff to introduce
“additional, independent evidence of discrimination” after showing pretext in order to survive summary
judgment. Griffin, 689 F.3d at 593-94. Here, the Court found that plaintiffs failed to establish that there was
a genuine dispute of material fact on the issue of pretext. No additional showing was required from
plaintiffs.

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III. CONCLUSION
Plaintiffs’ motion for reconsideration is granted. For all of the foregoing reasons,
having reconsidered in light of plaintiffs’ motion, the Court adheres to its original
decision.
IT IS SO ORDERED.

Dated: November 17, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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