Garth O. Green Enterprises et al v. Standard Plumbing Supply

Filing 231

MEMORANDUM DECISION AND ORDER denying 167 Motion to Reconsider; denying 195 Motion for Hearing. Signed by Judge David Nuffer on 3/7/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

GARTH O. GREEN ENTERPRISES, INC.,
a Utah corporation; GARTH O. GREEN, an
individual; and MICHAEL GREEN, an
individual,
Plaintiffs and Counterclaim
Defendants,
v.
RANDALL HARWARD, an individual;
RICHARD HARWARD, an individual;
HARWARD IRRIGATION SYSTEMS,
INC., a Utah corporation; GRASS VALLEY
HOLDINGS, L.P.; DOES 1-10; and ROE
CORPORATIONS 1-X;

MEMORANDUM DECISION AND
ORDER
DENYING [167] MOTION TO ALTER
AND AMEND AND
DENYING [195] MOTION FOR
HEARING

Defendants,
RICHARD N. REESE, an individual;
STANDARD PLUMBING SUPPLY
COMPANY, INC., a Utah corporation,
Defendants and Counterclaimants.
RICHARD REESE, an individual and
STANDARD PLUMBING SUPPLY
COMPANY, INC., a Utah corporation,
Cross-Claim Plaintiffs,
v.
HARWARD IRRIGATION SYSTEMS,
INC. AND GRASS VALLEY HOLDINGS,
L.P.,
Cross-Claim Defendants.

Case No. 2:15-cv-00556-DN-EJF
Judge David Nuffer
Magistrate Judge Evelyn J. Furse

Plaintiffs Garth O. Green Enterprises, Inc., Garth O. Green and Michael Green
(“Greens”) move “to amend and modify” the Memorandum Decision and Order entered on
December 27, 2016 (“Motion for Reconsideration”). 1 Richard N. Reese and Standard Plumbing
Supply Company, Inc. (“Standard Parties”) oppose the Motion for Reconsideration
(“Opposition”). 2 The Greens filed a reply in support of the Motion for Reconsideration
(“Reply”). 3
The Greens also filed a motion for a hearing on their Motion for Reconsideration
(“Motion for Hearing”). 4 The Standard Parties oppose the Motion for Hearing. 5 The Greens filed
a reply in support of their Motion for Hearing. 6 For the reasons set forth below, the Motion for
Reconsideration is DENIED and the Motion for Hearing is DENIED.
BACKGROUND
On December 27, 2016, an order was entered dismissing with prejudice the Greens’
claims against the Standard Parties (“152 Order”). 7 The Order considered a motion filed by the

1

Garth O. Green Enterprises, Inc. Garth O. Green and Michael Green’s Motion to Alter and Amend Court’s
December 27, 2016 Memorandum Decision (“Motion for Reconsideration”) at 2, docket no. 167, filed Jan. 24, 2017.

2

The Standard Parties’ Memorandum in Opposition to Garth O. Green Enterprises, Inc., Garth O. Green, and
Michael Green’s Motion to Alter and Amend Court’s December 27, 2016 Memorandum Decision (“Opposition”),
docket no. 191, filed Feb. 6, 2017.

3

Reply Memorandum in Support of Garth O. Green Enterprises, Inc.’s, Garth O. Green’s and Michael Green’s
Motion to Alter and Amend Court’s December 27, 2016 Memorandum Decision (“Reply”), docket no. 214, filed
Feb. 23, 2017.
4

Garth O. Green Enterprises, Inc., Garth O. Green and Michael Green’s Motion for Oral Argument on Motion to
Alter and Amend Court’s December 27, 2016 Memorandum Decision (Dkt. No. 152) (“Motion for Hearing”),
docket no. 195, filed Feb. 8, 2017,

5

The Standard Parties’ Memorandum in Opposition to Garth O. Green Enterprises, Inc. et al.’s, Motion for Oral
Argument on Motion to Alter and Amend Court’s December 27, 2016 Memorandum Decision (Dkt. No. 152),
docket no. 211, filed Feb. 20, 2017.

6

Garth O. Green Enterprises, Inc., Garth O. Green and Michael Green’s Reply Memorandum in Support of Motion
for Oral Argument on Motion to Alter and Amend Court’s December 27, 2016 Memorandum Decision (Dkt. No.
152), docket no. 229, filed Mar. 6, 2017.

7

Memorandum Decision and Order Granting [55] Motion for Partial Summary Judgment; Finding Moot [58]
Motion under Rule 56(d); and Finding Moot [60] and [136] Motions for Partial Summary Judgment (“152 Order”),
docket no. 152, entered Dec. 27, 2016.

2

Standard Parties, referred to as the “55 Motion.” The 55 Motion was originally filed in state
court, but was not resolved by the state court and the parties asked this court to resolve it along
with other pending motions from the state court. 8 In the 55 Motion, the Standard Parties asked
for dismissal of each of the causes of action asserted against them by the Greens. Those causes of
action included:
• “Intentional Interference with Performance of Contract against Richard Reese
and Standard” (Sixth Cause of Action)
• “Intentional Interference with Prospective Economic Relations against Richard
Reese and Standard” (Seventh Cause of Action)
• “Unfair Competition against Richard Reese, Standard, Harward Irrigation, Grass
Valley, Randall Harward, and Richard Harward” (Eighth Cause of Action).
The 152 Order explained that the 55 Motion would be construed as a Rule 12 motion to
dismiss and the material outside the pleadings would be excluded from consideration. 9 All facts
alleged in the Amended Complaint were assumed to be true when ruling on the 55 Motion. 10
First, the 152 Order addressed the intentional interference claims. The Order noted that
“[i]n St. Benedict’s Development Company v. St. Benedict’s Hospital, the Utah Supreme Court
combined the two intentional interference claims . . . into a single tort of ‘intentional interference
with economic relations.’” 11 Therefore, the Order reasoned, the intentional interference claims
asserted against the Standard Parties “will be analyzed as a single claim for intentional
interference with economic relations.” 12

8

Docket nos. 35, 37, 39, 40, 41, 42, 43, 45, 46 (outlining pending issues after removal and consenting to federal
jurisdiction for resolution of those issues).

9

152 Order at 4.

10

Id.

11

Id. at 11 (citing St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194 (Utah 1991)).

12

152 Order at 12.

3

The 152 Order then explained the elements of a claim for intentional interference with
economic relations. Those elements required the Greens to show, among other things, “improper
means.” 13 The 152 Order highlighted that “[t]he tort of intentional interference with economic
relations does not bar ordinary market competition.” 14 Citing to a Utah Supreme Court case, the
152 Order stated: “In the rough and tumble of the marketplace, competitors inevitably damage
one another in the struggle for personal advantage. The law offers no remedy for these
damages—even if intentional—because they are an inevitable by-product of competition.” 15 The
152 Order also explained that “to be actionable, the interference must be ‘wrongful by some
measure beyond the fact of the interference itself.’” 16 Actions such as “violence, threats or other
intimidation, deceit or misrepresentation, bribery, unfounded litigation, defamation, or
disparaging falsehood” were provided as examples of “independently actionable conduct” that
would satisfy the “improper means” element. 17
The 152 Order concluded that the Greens had failed to allege any improper means. The
152 Order explained that the Greens had simply accused the Standard Parties of “inducing”
Harward Irrigation and Grass Valley to breach their agreement with the Greens and contract with
the Standard Parties instead. 18 Because this was merely competition, which is allowed in the
marketplace, these actions did not rise to the level of “independently actionable conduct” to

13

Id.

14

Id.

15

Id. (citing Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 307 (Utah 1982)).

16

152 Order at 12 (citing Mumford v. ITT Commercial Fin. Corp., 858 P.2d 1041, 1043 (Utah App. 1993)).

17

152 Order at 12-13.

18

Id. at 13.

4

satisfy “improper means.” 19 The 152 Order also concluded that the allegation of taunting was not
founded and did not support a finding of improper means. 20
Regarding the unfair competition claim, the 152 Order explained that it was unclear
whether the Greens had advanced a common law or statutory claim of unfair competition. 21
Construing the Amended Complaint in the light most favorable to the Greens, the 152 Order
analyzed both common law and statutory unfair competition claims.
The 152 Order stated that “[a] common law claim for unfair competition includes such
actions as deceptively naming a new business to deceive customers and take advantage of a
competitor’s established good will, copying unique appearances of an established business, or
deceptively packaging a product to confuse the customer about its source.” 22 The requisite
elements to establish a statutory claim for unfair competition, the 152 Order explained, could be
found in Utah Code § 13-51-102(4). 23 Those elements included, among other things, a
requirement that the conduct in question qualified as “one of the following: (A) cyber-terrorism;
(B) infringement of a patent, trademark, or trade name; (C) a software license violation; or (D)
predatory hiring practices.” 24
The 152 Order noted that trademark infringement, the only potentially viable argument
for statutory unfair competition, could not be established because the Greens never obtained

19

Id.

20

Id. at 14.

21

Id. at 15.

22

Id.

23

Id.

24

Id. (citing Utah Code § 13-51-102(4)).

5

trademark rights. “Without a valid claim to the trademark rights at issue, [the Greens] cannot
sustain an unfair competition claim.” 25
To address the common law claim for unfair competition, the 152 Order noted that the
Greens had not alleged “with any specificity” how the Greens’ established good will had been
harmed, how unique appearances of its established business have been copied, how any product
of Standard Plumbing has been deceptively packaged to confuse the consumer about its source,
“or any other grounds.” 26 Specifically, the 152 Order noted that the Greens:
may argue that [the] Amended complaint sufficiently states grounds other than
trademark infringement to support its unfair competition claim. But it does not.
The Amended Complaint merely contains conclusory statements that “the value
of Southwest’s trade name and reputation” has been diminished and that
Southwest has been kept from “obtaining a stronger market position in Standard’s
industry.[”] There is no explanation, other than Standard Plumbing’s and Richard
Reese’s lawful competitive conduct. A complaint’s legal conclusions and
opinions are not accepted, whether or not they are couched as facts. 27
Finally, the 152 Order explained that allowing another amendment to the Amended
Complaint would be unduly prejudicial. The Greens had been on notice for over a year that the
Federal Rules of Civil Procedure applied, and that specific pleadings would be required to
support the claims, yet the Greens did not alter their Amended Complaint despite having several
months to do so. 28
Twenty-eight days after the 152 Order was entered, the Greens filed their Motion for
Reconsideration. The Motion for Reconsideration asserts seven ways the 152 Order was in error.

25

152 Order at 18.

26

Id.

27

Id. at 19 (quoting Amended Complaint ¶¶ 171, 172).

28

152 Order at 19-21.

6

STANDARD FOR RECONSIDERATION
Rule 54(b) applies to this review since “fewer than all the claims or the rights and
liabilities of fewer than all the parties” 29 were adjudicated in the 152 Order. 30 Under Rule 54(b),
if “an action presents more than one claim for relief—whether as a claim, counterclaim,
crossclaim, or third-party claim—or when multiple parties are involved, the court may direct
entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.” 31
This action presents more than one claim for relief and involves multiple parties. Thus,
the court “may” enter final judgment as to one of the parties, and has discretion to do so if it
finds “there is no just reason for delay.” The 152 Order did not find that entry of judgment as to
the Greens was necessary because the Greens still face counterclaims brought by the Standard
Parties. Accordingly, the 152 Order is considered an “order or other decision . . . that adjudicates
fewer than all the claims or the rights and liabilities of the parties[,]” it “does not end the
action[,]” and “may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.” 32
“In reviewing a motion to reconsider brought pursuant to Rule 54(b), courts in the Tenth
Circuit apply the standard applicable to a Rule 59(e) motion to alter or amend a judgment.” 33
“The Tenth Circuit has recognized the following grounds as warranting a motion to reconsider
under Rule 59(e): ‘(1) an intervening change in the controlling law, (2) new evidence previously

29

Fed. R. Civ. P. 54(b).

30

The Standard Parties’ counterclaims were not adjudicated in the Order.

31

Fed. R. Civ. P. 54(b) (emphasis added).

32

Fed. R. Civ. P. 54(b).

33
Zisumbo v. Ogden Reg’l Med. Ctr., No. 1:10-cv-00073-TS, 2013 WL 2444210, *1 (D. Utah June 5, 2013)
(unpublished) (citing Madison v. Volunteers of Am., No. 12-cv-00333-REB-KMT, 2012 WL 1604683, *1 (D. Colo.
May 8, 2012) (unpublished) (collecting cases)).

7

unavailable, and (3) the need to correct clear error or prevent manifest injustice.’” 34 “‘Thus, a
motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law. . . . It is not appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior briefing.’” 35
The Greens do not assert that there has been any intervening change in the controlling
law or that there is new evidence previously unavailable. Thus, the only available grounds for the
Greens to succeed on their Motion to Reconsider is “the need to correct clear error or prevent
manifest injustice.”
DISCUSSION
The 152 Order Employed the Correct Standard for Interference Claims
The Greens argue that “[t]he Court misconstrued Utah law on Contractual Interference
and the impact of the Utah Supreme Court’s decision of Eldridge v. Johndrow on prior case
law.” 36 The Greens argue that it was error to conclude that the causes of action for “interference
with a contract” and “interference with prospective economic relations” are a “single tort”
entitled “intentional interference with economic relations.” 37 The Greens are incorrect.
The decision to analyze the intentional interference claims “as a single claim for
intentional interference with economic relations” 38 derived from St. Benedict’s Development
Company v. St. Benedict’s Hospital. 39 There, the Utah Supreme Court analyzed two separate
intentional interference claims using a single test for “intentional interference with economic

34

Zisumbo, 2013 WL 2444210, *1 (citing Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).

35

Zisumbo, 2013 WL 2444210, *1 (citing Servants of Paraclete, 204 F.3d at 1012).

36

Motion for Reconsideration at 11.

37

Id.

38

152 Order at 12.

39

St. Benedict’s, 811 P.2d 194 (Utah 1991)).

8

relations.” 40 The Court stated that the “tort of intentional interference with economic relations . .
. protects both existing contractual relationships and prospective relationships of economic
advantage not yet reduced to a formal contract.” 41 The Court set forth three elements to establish
a claim for “intentional interference with economic relations.” 42 This was referred to as the
“Leigh Furniture test.”
St. Benedict’s went on to state that a party is liable “for an intentional interference with
present contractual relations if he intentionally and improperly causes one of the parties not to
perform the contract.” 43 St. Benedict’s also stated that a claim for intentional interference with
“prospective economic relations” involves, among other things, a showing of “improper purpose
or . . . improper means.” 44 Importantly, however, both of these statements were based on the
single three-element Leigh Furniture test used to analyze the intentional interference claims.
Because one of the elements in that test required the showing of “improper purpose or . . .
improper means,” 45 St. Benedict’s stated that both “present” and “prospective” interference
claims involve a showing of “improper” conduct. St. Benedict’s did not create two separate tests,
as the Greens argue. Rather, St. Benedict’s employed the same three-element test to each claim—
the Leigh Furniture test.
This is precisely the approach the 152 Order took. 46 The 152 Order recited the Leigh
Furniture test that was used in St. Benedict’s, but modified the test according to the holding in

40

Id. at 200.

41

Id. (emphasis added).

42

Id. (citing Leigh Furniture, 657 P.2d 293 (Utah 1982)).

43

St. Benedict’s, 811 P.2d at 201 (citing Restatement (Second) of Torts § 766 (1979)) (emphasis in original).

44

St. Benedict’s, 811 P.2d at 201.

45

Id. at 200.

46

152 Order at 12.

9

Eldridge: that “no tortious interference claim”—not just the claim of interference with
prospective economic relations, but also the claim of interference with present contractual
relations—“can succeed without evidence of improper means.” 47 Eldridge did not overturn the
St. Benedict’s approach of applying the Leigh Furniture test to tortious interference claims.
Instead, Eldridge removed the “improper purpose” element from the second element of the Leigh
Furniture test.
Eldridge could have noted that St. Benedict’s erroneously applied a single test when there
were two separate tests—one for “contractual interference” and one for “economic interference.”
But Eldridge did not do so. Or Eldridge could have remarked that St. Benedict’s had created two
separate tests for intentional interference claims. But Eldridge did not do so. Indeed, rather than
critiquing St. Benedict’s for employing the Leigh Furniture test to both tortious interference
claims, Eldridge cited the test with approval, stating that “to win a tortious interference claim
under Utah law, a plaintiff must now prove ‘(1) that the defendant intentionally interfered with
the plaintiff’s existing or potential economic relations, (2) . . . by improper means, (3) causing
injury to the plaintiff.’” 48 “[A] claim for tortious interference may only succeed where the
defendant has employed an improper means.” 49
It seems the Greens are struggling with the proper nomenclature of a tortious interference
claim. In their Motion for Reconsideration and throughout their Reply, they consistently use the
terms “Contractual Interference” and “Economic Interference.” These are not the terms used by
either St. Benedict’s or Eldridge. In fact, it is unclear whether there is any difference between the

47

Eldridge v. Johndrow, 345 P.3d 553, 555 (2015).

48

Id. at 565 (citing Leigh Furniture, 657 P.2d at 304). Contrary to the Greens’ assertions, Eldridge involved two
separate tortious interference claims: “tortious interference with economic relations” and “tortious interference with
prospective economic relations[.]” Eldridge, 345 P.3d at 555.
49

Eldridge, 345 P.3d at 556.

10

Greens asserted claims for “Contractual Interference” and “Economic Interference.” Both of
those titles seem to suggest interference with economic relations. But they do not indicate any
difference in the timing of the interference, which is the key difference between tortious
interference claims. The claim for intentional interference with existing contractual relations
involves interference with a contract that presently exists, while a claim for intentional
interference with prospective economic relations involves interference with economic relations
that are yet to be realized. Eldridge does not limit its holding to only one kind of tortious
interference claim; rather, it holds that “no tortious interference claim” can be based on improper
purpose. 50 Thus, the Leigh Furniture test used in St. Benedict’s still applies, although it has been
modified by Eldridge as to the second element.
As explained in the 152 Order, the correct test for a “tortious interference claim”—either
a claim for interference with present or prospective economic relations—requires a plaintiff to
show “(1) that the defendant intentionally interfered with the plaintiff’s existing or potential
economic relations; (2) . . . by improper means; (3) causing injury to the plaintiff.” 51 Because
this is the test that was used in the 152 Order, the Greens are incorrect that “[t]he Court
misconstrued Utah law on Contractual Interference and the impact of the Utah Supreme Court’s
decision of Eldridge v. Johndrow on prior case law.” 52
The 152 Order Correctly Concluded that the Greens Failed to Allege Improper Means
The Greens contend that there was a valid oral contract with Harward Irrigation and
Grass Valley, but the Standard Parties “intentionally and improperly interfered with” that

50

Id. at 555 ¶ 4 (“We therefore hold that no tortious interference claim can succeed without evidence of improper
means.”); Id. at 556 ¶ 14 (“[W]e hold that a claim for tortious interference may only succeed where the defendant
has employed an improper means.”)
51

152 Order at 12 (citing Eldridge, 345 P.3d at 555).

52

Motion for Reconsideration at 11.

11

contract. 53 Because the Standard Parties “intentionally and actively interfered with and induced
the breach of an existing contractual relationship[,]” 54 the Greens argue, the claim for intentional
contractual interference is supported and should not have been dismissed. 55 The Greens argue
that there is adequate evidence of “improper means” alleged in the Amended Complaint. 56 The
Greens assert that the words “actions” and “wrongful” sufficiently alleged “improper means,”
especially considering the “related supporting facts.” 57 The Greens also assert that their claim for
unfair competition provides necessary support for a finding of improper means. 58
The Greens are incorrect. The 152 Order fully explained that competition is not improper
means. “[T]o be actionable, the interference must be ‘wrongful by some measure beyond the fact
of the interference itself.’” 59 Actions such as “violence, threats or other intimidation, deceit or
misrepresentation, bribery, unfounded litigation, defamation, or disparaging falsehood” were
provided as examples of “independently actionable conduct” that would satisfy the “improper
means” element. 60 None of those elements were alleged in the Amended Complaint.
The 152 Order concluded that the Greens had simply accused the Standard Parties of
“inducing” Harward Irrigation and Grass Valley to breach their agreement with the Greens. 61
Because this was merely competition, lacking in any improper means, which is allowed in the

53

Id. at 4.

54

Id. at 16.

55

Id. at 3-4.

56

Id. at 4.

57

Id.

58

Id. at 18.

59

152 Order at 12 (citing Mumford, 858 P.2d at 1043).

60

152 Order at 12-13.

61

Id. at 13.

12

marketplace, these actions did not rise to the level of “independently actionable conduct” to
satisfy “improper means.” 62
“The tort of intentional interference with economic relations does not bar ordinary market
competition.” 63 “In the rough and tumble of the marketplace, competitors inevitably damage one
another in the struggle for personal advantage. The law offers no remedy for these damages—
even if intentional—because they are an inevitable by-product of competition.” 64 To the extent
that the Greens argue that it was the Standard Parties’ intent to injure a competitor, this argument
fails. 65
Thus, even assuming the Greens had a valid contract with Harward and Grass Valley, the
Greens have not stated a valid claim for intentional interference with existing contractual
relations by alleging that the Standard Parties made a more attractive offer to Harward and Grass
Valley. Ultimately, it was up to Harward and Grass Valley to entertain and ultimately accept the
Standard Parties’ offer. And while the Greens may have had a breach of contract claim against
Harward and Grass Valley, the Greens have not alleged any improper means by the Standard
Parties. The tremendously general statement that the Standard Parties engaged in “actions” that
were “wrongful” 66 is not nearly specific enough to satisfy federal pleading standards.
Further, as explained in the 152 Order, the Amended Complaint fails to adequately plead
either a statutory or common law unfair competition claim. The 152 Order thoroughly explains

62

Id.

63

Id. at 12.

64

Id. (citing Leigh Furniture, 657 P.2d at 307).

65

See Eldridge, 345 P.3d at 556 (explaining that district court foreclosed tortious interference claim based on
improper means argument where the “only goal was to hurt the [plaintiff]’s business”).

66

Motion for Reconsideration at 17.

13

the reasoning for that conclusion. 67 Thus, the Greens are incorrect that the unfair competition
allegations support a finding of improper means and they are further incorrect that the unfair
competition claim can stand. The unfair competition allegations, as stated in the 152 Order, are
not specific enough to survive a motion to dismiss.
The 152 Order Correctly Applied Eldridge to the Greens’ Claims
The Greens argue that it would be inequitable and would impose an undue burden to
apply the Eldridge decision “retroactively” to them. The Greens argue that at the time the
Greens’ complaint and Amended Complaints were filed, Utah law had not combined the
intentional interference claims into a single tort, and the Greens “justifiably relied on long
standing prior case law in pursuing their claims . . . .” 68 This argument is rejected for at least two
reasons.
First, this argument has not been raised prior to the Motion for Reconsideration.
“[A]rguments raised for the first time in a motion for reconsideration are not properly before the
court and generally need not be addressed.” 69
Second, “[t]he general rule of retroactivity in a civil case is that ‘the ruling of a court is
deemed to state the true nature of the law both retrospectively and prospectively.” 70 If a party
seeks prospective application of a ruling only, the party must show “either ‘justifiable reliance on
the prior state of the law,’ or that retroactive application would create an undue burden.” 71 The
Greens cannot show justifiable reliance on the prior state of the law. Eldridge was decided only

67

152 Order at 15-19.

68

Motion for Reconsideration at 4.

69

United States v. Castillo-Garcia, 117 F.3d 1179, 1197 (10th Cir. 1997) rev’d on other grounds, 291 F.3d 1219
(10th Cir. 2002).
70

Holmes v. Cannon, 387 P.3d 971, 974-75 (Utah 2016).

71

Id. at 975.

14

months after their Amended Complaint was filed. The Greens were made aware of Eldridge by
at least February 2015, when a motion to dismiss was filed arguing that Eldridge had changed
the improper purpose prong of the Leigh Furniture test. The Greens had several months after that
to seek amendment of their Amended Complaint to comply with the law. Thus, the Greens’
reliance on pre-Eldridge law was justifiable at the time the Amended Complaint was filed, but it
was not justifiable after they became aware of the change in the law.
Additionally, there is no undue burden on the Greens to require them to follow Eldridge.
As Eldridge itself explained, the improper purpose doctrine was never “firmly established in
Utah law” even though “thirty-two years is more than enough time for a precedent to become
firmly established . . . .” 72 Eldridge remarked that it was common for claims under improper
purpose to be rejected, and that “[g]iven the difficulty of winning claims under the improperpurpose doctrine, it would have been foolhardy for people to rely on it in their private
dealings.” 73 Significantly, Eldridge explained, “determining the predominant purpose behind a
defendant’s actions raises significant evidentiary problems” and “[i]f improper-purpose liability
became commonplace it would have a chilling effect on legitimate, socially beneficial
competitive practices.” 74 It does not impose an undue burden to disallow the Greens from relying
on such a problematic doctrine.
The 152 Order Correctly Prohibited Further Amendment
Finally, the Greens argue that it was error to disallow an opportunity to amend their
Amended Complaint. They argue that discovery is still ongoing and they “may be prejudiced if

72

Eldridge, 345 P.3d at 559.

73

Id. at 560.

74

Id. at 561.

15

they are not permitted to amend their pleading after they have conducted discovery.” 75 The
Greens assert several reasons why they believe the denial of amendment was in error, but none
of the arguments even acknowledge that the Greens had an opportunity to request amendment
and never acted on that opportunity. As the 152 Order explained, it would be unduly prejudicial
to the Standard Parties to allow the Amended Complaint to be amended “after years in
litigation.” 76
CONCLUSION
None of the grounds raised by the Greens show clear error or manifest injustice. The
Greens certainly disagree with the conclusion, but that is not enough to establish “clear error.”
There is no indication that the 152 Order “misapprehended the facts, a party’s position, or the
controlling law.” 77
ORDER
IT IS HEREBY ORDERED that the Motion for Reconsideration 78 is DENIED.
IT IS FURTHER ORDERED that the Motion for Hearing 79 is DENIED.

Dated March 7, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge
75

Motion for Reconsideration at 5.

76

152 Order at 20-21.

77

Zisumbo, 2013 WL 2444210, *1 (citing Servants of Paraclete, 204 F.3d at 1012).

78
Garth O. Green Enterprises, Inc. Garth O. Green and Michael Green’s Motion to Alter and Amend Court’s
December 27, 2016 Memorandum Decision (“Motion for Reconsideration”), docket no. 167, filed Jan. 24, 2017.
79
Garth O. Green Enterprises, Inc., Garth O. Green and Michael Green’s Motion for Oral Argument on Motion to
Alter and Amend Court’s December 27, 2016 Memorandum Decision (Dkt. No. 152), docket no. 195, filed Feb. 8,
2017,

16