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Calmat Co. v. Oldcastle Precast, Inc.

United States District Court, D. New Mexico

June 22, 2018

CALMAT CO., Plaintiff,
v.
OLDCASTLE PRECAST, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Rune Kraft's “Objection and Motion for Reconsideration of Orders Entered as Document 190 and Document 191” (Motion for Reconsideration), filed December 13, 2017. (Doc. 202). Rune Kraft (Kraft) requests that the Court reconsider its Memorandum Opinion and Order (Doc. 190) in which the Court granted “Defendant Oldcastle Precast, Inc.'s Motion for Summary Judgment” (Oldcastle's Motion for Summary Judgment) (Doc. 148), and the Court's Final Summary Judgment (Doc. 191) in which the Court entered summary judgment in favor of Defendant Oldcastle Precast, Inc. (Oldcastle) and against Kraft; Kraft Americas L.P.; Kraft Americas Holdings, Incorporated (KAHI); and John Does 1-5. Oldcastle filed a response to the Motion for Reconsideration on December 28, 2017, and Kraft filed a reply on January 4, 2018. (Docs. 215 and 225). Having considered the Motion for Reconsideration and the accompanying briefing, the Court denies the Motion for Reconsideration.

         A. Motion for Reconsideration Standard

         The Court construes a motion to reconsider a judgment as either a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment or a Fed.R.Civ.P. 60(b) motion for relief from judgment or order, depending on its filing date. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (stating Rule 59(e) and 60(b) are distinct, and noting that which rule applies depends on when motion is served). Because Kraft filed the Motion for Reconsideration within 28 days of the Court's entry of the underlying Memorandum Opinion and Order (Doc. 190), and Final Summary Judgment (Doc. 191), the Court construes the Motion for Reconsideration as a Rule 59(e) motion. See Id. (“If a motion is served within [28] days of the rendition of judgment, the motion ordinarily will fall under Rule 59(e). If the motion is served after that time it falls under Rule 60(b).”) (internal citations omitted); Fed.R.Civ.P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”).

         Rule 59(e) relief is appropriate if there is new controlling law, new evidence not available previously, or if there is a “need to correct clear error or prevent manifest injustice.” Ankeney, 524 Fed.Appx. at 458 (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). The Tenth Circuit has defined clear error as “an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1236 (10th Cir. 2001). Although the Tenth Circuit has not specifically defined manifest injustice in the Rule 59(e) context, other courts have defined manifest injustice as “more than just a clear and certain prejudice to the moving party, but also a result that is fundamentally unfair in light of governing law.” Smith v. Lynch, 2015 WL 4324167, *3 (D.D.C.). See also In re Green Goblin, Inc., 2012 WL 1971143, *1 (Bankr. E.D. Pa. May 31, 2012) (“In order for a court to reconsider a decision due to ‘manifest injustice,' the record presented must be so patently unfair and tainted that the error is manifestly clear to all who view it.”) (quoting In re Roemmele, 466 B.R. 706 (Bankr. E.D. Pa. 2012)). Rule 59(e) does not allow a losing party to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Servants of the Paraclete, 204 F.3d at 1012. Also, a Rule 59(e) movant carries the burden of demonstrating that the Court should alter or amend a judgment. See, e.g., Winchester v. Wilkinson, 2015 WL 2412175, at *2 (E.D. Okla.) (“court finds petitioner has failed to meet his burden for relief under Fed.R.Civ.P. 59(e).”).

         B. Discussion

         1. Oldcastle's Failure to Respond to Each of Kraft's Arguments

         As an initial matter, Kraft notes that Oldcastle does not dispute all of the arguments raised in the Motion for Reconsideration. Kraft argues that Oldcastle, therefore, must agree with those arguments. See D.N.M. LR-Cv 7.1(b) (failure to file response “constitutes consent to grant the motion.”). However, the Tenth Circuit prefers that the Court address the merits of a motion. See Lee v. Max Int'l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011) (“our legal system strongly prefers to decide cases on their merits.”). In keeping with that Tenth Circuit principle, the Court can waive a local rule “to avoid injustice, ” i.e., to decide a motion on the merits. D.N.M. LR-Cv 1.7. Moreover, it is clear from Oldcastle's response that it does not consent, in any respect, to the Motion for Reconsideration. The Court, therefore, will decide the Motion for Reconsideration entirely on its merits.

         2. New Evidence

         Kraft attaches to the Motion for Reconsideration a “Motion for Leave to File Surreply” to Oldcastle's Motion for Summary Judgment. (Doc. 202) at 12-19. Kraft argues that this Motion for Leave to File Surreply is new evidence. Kraft contends that the Court never ruled on the Motion for Leave to File Surreply and implies that the Court or Clerk's Officer never filed the Motion for Leave to File Surreply. The Clerk's Office, indeed, received the Motion for Leave to File Surreply on May 26, 2017, and filed it the same day. See (Doc. 160) at 1 and 9. The Court also struck the Motion for Leave to File Surreply on June 6, 2017. (Doc. 167). The order striking the Motion for Leave to File Surreply was emailed to KAHI and mailed to both KAHI and Kraft. See Notice of Electronic Filing, (Doc. 167). For the foregoing reasons, Kraft's Motion for Leave to Filed Surreply does not constitute new evidence with which to support a reconsideration of the Court's ruling on Oldcastle's Motion for Summary Judgment.

         3. Clear Error or Manifest Injustice

         Kraft makes several arguments that the Court should reconsider its rulings on Oldcastle's Motion for Summary Judgment to correct clear error or prevent a manifest injustice. First, Kraft has several complaints regarding the underlying garnishment case, 1:15-mc-00033 WJ. Kraft complains the Plaintiff in the garnishment case did not serve him or Kraft Americas L.P. with a summons and complaint. Kraft also complains about Oldcastle's status as a nonparty in the garnishment case and its actions in that case. Additionally, Kraft complains that the Court in the garnishment case lacks subject matter jurisdiction and that Oldcastle lacks standing to proceed in that case. Next, Kraft complains that there is no basis in equity or law “for the purported underlying claims against Rune Kraft and Kraft Americas, L.P.” (Doc. 202) at 6. These complaints about 1:15-mc-00033 WJ, though, do not affect the Court's determination to grant summary judgment in favor of Oldcastle in this separate interpleader case.

         Second, Kraft asserts that Oldcastle “has never served a single motion and/or pleading on Rune Kraft (and/or Kraft Americas, L.P. and/or Kraft Americas Holdings, Inc.) pursuant to Federal Rules of Civil Procedures [sic] and Local Rules of Civil Procedure.” (Doc. 202) at 4. The docket sheet in this case belies this assertion. The Notice of Electronic Filing for (Doc. 40), for example, shows that Oldcastle served its response to several of Kraft's “Notices” by emailing that response to counsel for KAHI and to Kraft, personally. See Fed. R. Civ. P. 5(b)(1) (requiring service on attorney if party is represented by attorney); Fed.R.Civ.P. 5(d)(3) (allowing service by electronic means); D.N.M. LR-Cv 5.1 (allowing electronic service). Of course, Oldcastle was not required to serve motions and pleadings on Kraft Americas, L.P. because it never appeared in this case, i.e., Kraft Americas, L.P. never retained counsel to represent it in this case. See Rowland v. California Men's Colony, 506 U.S. 194, 202 (1993) (“a corporation may appear in the federal courts only through licensed counsel.”); 4B Fed. Prac. & Proc. Civ. § 1144 (4th ed.) (“a party who has not appeared is not entitled to service under Rule 5….”). Once the Court dismissed Kraft and KAHI from this lawsuit and they were no longer parties to this lawsuit, Oldcastle, likewise, was not required to serve motions and pleadings on Kraft and KAHI. See Fed. R. Civ. P. 5(a)(1) (stating that “papers must be served on every party….”).

         Third, Kraft provides a list of documents which he argues “prove unequivocally that Oldcastle Precast, Inc. is not entitled to anything from this Court related to this matter….” (Doc. 202) at 4. Kraft specifically asserts that “the activities directed against Rune Kraft and the corporate entities that Rune Kraft is involved with have been and are sustained through false and fraudulent court filings.” (Doc. 202) at 6. The documents Kraft cites in support of his position are (Docs. 153, 160, 163, 164, 165, 166, 170, 172, and 177). (Doc. 202) at 4-5. The Court, however, either struck or denied those documents. See (Docs. 167, 173, 188, and 189). Consequently, Kraft cannot rely on those documents to support his Motion for Reconsideration.

         Fourth, Kraft argues that, although he is a nonparty, he has standing to participate in this lawsuit because KAHI transferred the interest in the subject royalty proceeds to him on April 4, 2017, just prior to the Court's April 12, 2017, dismissal of KAHI and determination that KAHI does not have an interest in the royalty payments. (Doc. 135) at 6; (Doc. 132). ...


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