Ross Group Construction Corporation, The v. Riggs Contracting, Inc. et al

Filing 35

OPINION AND ORDER by Judge Claire V Eagan ; denying 33 Motion to Reconsider; denying 34 Motion to Vacate Order/Judgment (Re: 31 Opinion and Order,,,, Ruling on Motion for Summary Judgment,,, ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

THE ROSS GROUP CONSTRUCTION
CORPORATION,
Plaintiff,
v.
RIGGS CONTRACTING, INC., d/b/a
RIGGS CONTRACTING CONCRETE
SPECIALISTS, and SAFECO INSURANCE
COMPANY OF AMERICA,
Defendants.

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Case No. 12-CV-0246-CVE-FHM

OPINION AND ORDER
Now before the Court are defendants Riggs Contracting, Inc. (Riggs) and Safeco Insurance
Company of America’s (Safeco) motion to reconsider (Dkt. # 33) and motion to vacate order (Dkt.
# 34).1 Plaintiff The Ross Group Construction Corporation (Ross) and defendants both filed motions
for summary judgment (Dkt. ## 23, 24) asserting that the term “mutually agreeable” in a
construction contract entered into by Ross and Riggs was unambiguous. Ross asserted that there
was a mutually agreed construction schedule that Ross could change at will, and that Riggs was not
entitled to ask for additional compensation when the schedule was delayed. Dkt. # 23. Riggs argued
that the term “mutually agreeable” clearly meant that Ross could not change the construction
schedule without Riggs’ consent and that, because Riggs did not agree to a revised schedule once

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Riggs and Safeco filed the motion to vacate order and motion to reconsider as a single
document entitled Defendants’ Motion to Reconsider and Vacate the Court’s November 14,
2012 Opinion and Order, Together with Legal Authorities, but it was converted to two
separate docket entries (Dkt. ## 33, 34) in CM/ECF. Therefore, the Court will refer to both
docket entries as “the motion.”

delays made adherence to the original schedule impossible, Riggs was not required to perform under
the subcontract. Dkt. # 24. On November 14, 2012, the Court denied Riggs and Safeco’s motion
for summary judgment and granted in part and denied in part Ross’ motion for summary judgment.
Dkt. # 31. The Court found that mutually agreeable was unambiguous and that Riggs was required
to proceed only under a “mutually agreeable” construction schedule. Id. at 10. The Court also
found that Riggs breached the subcontract when it refused to complete the work defined in the
subcontract unless it received requested additional compensation. Id. at 13. Finally, the Court found
that there was a genuine dispute regarding the amount of damages to which Ross was entitled, and
Ross’ motion as to the amount of damages was denied. Id. at 14.
Riggs and Safeco state that “[t]he Court correctly held that Riggs was required to proceed
only under a mutually agreeable construction schedule, agreed to by both Riggs and Ross, and not
thereafter altered by Ross alone.” Dkt. # 33, at 4 (internal quotation marks omitted). However,
Riggs and Safeco argue that the Court erred in finding that Riggs breached the subcontract when it
declined to perform absent additional compensation. Id. at 5. Riggs and Safeco assert five
arguments as to why denying Riggs and Safeco’s motion for summary judgment was error, all of
which were included in Riggs and Safeco’s motion for summary judgment. Id. at 10, 18, 21, 23-24.
The Court treats Riggs and Safeco’s motion to reconsider under Fed. R. Civ. P. 54(b), as the
underlying opinion and order is not a final order or judgment. See Raytheon Constructors, Inc. v.
Asarco Inc., 368 F.3d 1214, 1217 (10th Cir. 2003). Riggs and Safeco’s motion does not address the
appropriate standard of review for a motion to reconsider, but Riggs and Safeco’s motion implies
that the Court should reconsider its opinion and order under a de novo standard. The Court may,
however, call into play the legal standards applicable to a Rule 59(e) motion to alter or amend

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judgment. See, e.g., Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers &
Lybrand LLP, 322 F.3d 147, 167 (2d Cir. 2003). A motion to reconsider, like a motion to alter or
amend judgment, should be granted only upon the following grounds: “(1) an intervening change
in the controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear
error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000); see Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n.5 (10th Cir. 2000).
The Court will exercise its discretion to review defendant’s motion under the standards applicable
to Rule 59(e) motions. A district court does not abuse its discretion if it refuses to reconsider
arguments that have already been considered and rejected. See Servants, 204 F.3d at 1009; Van
Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Reconsideration is “not available
to allow a party to reargue an issue previously addressed by the court when the reargument merely
advances new arguments or supporting facts which were available for presentation at the time of the
original argument.” FDIC v. United Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998) (quoting
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)).
Riggs and Safeco do not cite an intervening change in the law or new evidence that was
previously unavailable. Instead, Riggs and Safeco state that the “purpose of [the] motion is to point
out several instances in which Riggs believes the Court may have misunderstood the evidence or
misconstrued the contract documents, and to emphasize the legal ‘remedy’ to which Riggs was
entitled because of the unreasonably prolonged postponement of the subcontract work.” Dkt. # 33,
at 4. Riggs and Safeco’s motion simply asks the Court to reconsider arguments that have been
considered and rejected. This is not a basis for a motion to reconsider, and, in any event, the Court
did not misunderstand Riggs and Safeco’s arguments. The term “mutually agreeable” is not

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ambiguous, and, reading the subcontract as a whole, Riggs was not justified in requiring an
additional payment prior to performance. As noted by Riggs and Safeco, defendants’ arguments
were fully argued in prior motions, and the arguments were addressed in the Court’s opinion and
order denying Riggs and Safeco’s motion for summary judgment. Therefore, Riggs and Safeco’s
motion to reconsider and motion to vacate should be denied.
IT IS THEREFORE ORDERED that defendants Riggs and Safeco’s motion to reconsider
(Dkt. # 33) and motion to vacate order (Dkt. # 34) are denied.
DATED this 2nd day of January, 2013.

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