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stating counsel's failure to certify conferral "suppl[ies] adequate grounds to deny the motion"
Summary of this case from Incardone v. Royal Carribean Cruises, Ltd.Opinion
CASE NO.: 08-22320-CIV-COOKE/BANDSTRA.
October 28, 2009
ORDER DENYING DEFENDANT'S MOTION FOR REHEARING
THIS MATTER is before me on Defendant Eller Company, Inc.'s ("Eller Co.") Motion for Rehearing on Plaintiffs' motion for partial summary judgment [D.E. 102]. The matter is fully briefed and I have reviewed the parties' arguments, the record, and the relevant legal authorities. For the following reasons, Defendant's Motion for Reconsideration is denied; the order granting Plaintiffs' partial summary judgment [D.E. 101] is reaffirmed.
Eller Co. does not cite to which federal rule (or other legal authority) upon which its motion is predicated. Based on the arguments made by Eller Co., I have construed the motion for rehearing to be a motion for relief from judgment, also referred to as a motion for reconsideration, under Federal Rule of Civil Procedure 60(b)(2).
I. BACKGROUND
This case involves a dispute over the payment of contributions to Plaintiffs for pension, health, welfare, vacation, and holiday benefits in accordance with the Employee Retirement Income Security Act of 1974 as amended ("ERISA"), 29 U.S.C. § 1001, et seq. (Am. Compl. ¶ 1 [D.E. 6].) Eller Co. agreed to make contributions to Plaintiffs' fund for benefits and to pay union dues for various employees of Eller Co. who were also Plaintiffs' union members, pursuant to a collective bargaining agreement with Plaintiffs. (Def.'s Resp. to Pls.' Mot. for Partial Summ. J. ¶ 2 [D.E. 82].) Sometime in 2006, Eller Co. assigned its business, including its obligations to Plaintiffs' under the collective bargaining agreement, to Eller Maritime Services, LLC ("Maritime Services"). ( Id. ¶¶ 3-4.) Although Plaintiffs were informed of this assignment, Plaintiffs maintain that they did not agree to relieve Eller Co. of its obligations under the collective bargaining agreement. (Edwin Stewart Aff. ¶ 7 [D.E. 61].)
On September 11, 2009, I granted Plaintiff's motion for partial summary judgment. (Order granting Pls.' Mot. for Partial Summ. J. [D.E. 101].) Based on the record evidence, I ruled that there was nothing to indicate that the assignment by Eller Co. to Maritime Services was a novation or a substitute contract. Accordingly, Eller Co. was liable for the outstanding contributions in the sum of $274,836.94, pursuant to governing case law. Eller Co. now seeks reconsideration of my Order, on the basis of what it argues is newly discovered evidence. Notably, this matter is now set as a non-jury trial. (Order granting Mot. to strike jury trial [D.E 114].)
In a case set for a non-jury trial, where the judge is to serve as trier of fact, a court may conclude on the basis of the affidavits, depositions, and stipulations before it, that there are no genuine issues of material fact, even though its decision may depend upon inferences to be drawn from the facts presented. Coats Clark, Inc. v. Gay, 755 F.2d 1506, 1509 (11th Cir. 1985) (citation omitted).
II. LEGAL STANDARD
"On motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding" based on "newly discovered evidence that, with reasonable diligence, could not have been discovered [within ten days after the entry of judgment]." Fed.R.Civ.P. 60(b)(2) (emphasis added). "[R]econsideration of a previous order `is an extraordinary remedy to be employed sparingly.'" Bautista v. Cruise Ships Catering Serv. Int'l, N.V., 350 F. Supp. 2d 987, 992 (S.D. Fla. 2004) (citation omitted). Evidence that was previously available, but which a party failed to present to the court, is not considered "newly discovered evidence" for purposes of motion for reconsideration. See Mercer v. N. Broward Hosp. Dist., 270 F. App'x 789, 792 (11th Cir. 2008). The rationale for this requirement is to prevent a party from profiting from its own inadvertence at the expense of judicial economy and equity. The rule also promotes the important interest in preserving the finality of judgments. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. Jan. 26, 1981).
The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
III. ANALYSIS
A. Eller Co. Failed To Comply With the Local Rules
Eller Co. did not submit an accompanying "memorandum of law citing supporting authorities," with its motion, as is required under Local Rule 7.1(A)(1). Eller Co. did not cite to a single case, or refer to any legal authority in its Motion for Reconsideration. Additionally, Eller Co. failed to include a statement that "counsel for the movant has conferred with [Plaintiffs] in a good faith effort to resolve the issues raised in the motion and has been unable to do so," as is required by Local Rule 7.1(A)(3). These omissions, standing alone, supply adequate grounds to deny the motion. See S.D. Fla. L.R. 7.1(A)(3).B. Eller Co. Failed To Exercise Due Diligence In Obtaining The Alleged Newly Discovered Evidence
Eller Co. argues that the deposition of Edwin Stewart, which was taken on September 10, 2009, constitutes newly discovered evidence since Stewart's deposition occurred the day before I ruled on Plaintiffs' Motion for partial summary judgment. Eller Co asserts, it had no way of knowing that on the following day I was going to rule on Plaintiffs' motion, and therefore it had no cause to place Stewart's deposition before the Court for consideration.Plaintiffs' motion for partial summary judgment was fully briefed as of April 29, 2009. Eller Co. had no reason not to expect a ruling on the motion at anytime after that date, and certainly should have anticipated a ruling four months after the matter was ripe, and as the case neared the trial period. Moreover, it is difficult to comprehend how evidence that Eller Co. had before the motion was ruled on can be construed as newly discovered. It is past discovered evidence which Eller Co. failed to present until after I ruled in Plaintiffs favor. If Eller Co. believed that this evidence was pivotal to its case it should have brought it to the Court's attention immediately.
This matter has been pending since August 2008. The parties have been engaged in discovery for over a year. Plaintiffs' motion for partial summary judgment was filed on December 30, 2008. The fact that Eller Co. waited over eight months to take this deposition suggests that Eller Co. failed to exercise due diligence in obtaining the discovery. That Eller Co.'s motion includes no explanation for the delay confirms this conclusion. Accordingly, the Stewart deposition does not constitute "newly discovered evidence," for purposes of a Rule 60 analysis, because Eller Co. failed to exercise due diligence to timely obtain the evidence, and more to the point, it is not newly discovered, but was known to Eller Co. before my ruling on the summary judgment motion.
C. Eller Co. Failed To Demonstrate Release Or Novation
Under Florida law, four elements are necessary to demonstrate a novation: (1) the existence of a previously valid contract; (2) the agreement to make a new contract; (3) the intent to extinguish the original contractual obligation; and (4) the validity of the new contract. Sink v. Abitibi-Price Sales Corp., 602 So. 2d 1313 (Fla. Dist. Ct. App. 1992). The party asserting novation carries the burden of proving the parties' intent to engage in the original transaction and to release the original contractual obligation in exchange for a contract. Estate of Johnson v. TPE Hotels, Inc., 719 So. 2d 22, 25 (Fla. Dist. Ct. App. 1998). Under Florida law, "a clear agreement or manifestation of intention of both parties to that effect is essential." United States v. Nill, 519 F.2d 793 (5th Cir. 1975). "[I]n the absence of a clear agreement . . . there must be a clear manifestation of an intention that such was the agreement." Id. Novation cannot be presumed; it must be shown to have been intended by a clear preponderance of the evidence. Travis v. Cent. Sur. Ins. Corp., 117 F.2d 595, 596 (5th Cir. 1941). Whether the parties intended to create a novation is ordinarily a question of fact. Young v. Morris Realty Co., 569 So. 2d 813, 814 (Fla. Dist. Ct. App. 1990).
Eller Co. first argues, Mr. Stewart's deposition shows that ILA Fund agreed to release Eller Co. from its obligations under the collective bargaining agreement. For this proposition, Eller Co. relies on one part of Mr. Stewart's deposition where he indicates that, upon being shown the May 19, 2006 letter (indicating that Eller Co. transferred all of its assets and liabilities to Maritime Services), ILA Fund had no "objection to it." (Stewart Dep. 13:21, Sept. 10, 2009 [D.E. 103-1]). Eller Co. next argues, it was the error, omission, or negligence of ILA Fund in failing to obtain the proper documentation of the assignment which led to Eller Co. remaining liable for the obligations that Maritime Services incurred. To demonstrate this, Eller Co. relies on Mr. Stewart's acceptance of ILC Fund's counsel's theoretical statement that "If it was a new company as opposed to just a name change then the fund made a mistake by not getting the new documents signed. . . ." (Stewart Dep. 17:20-24.)
Having reviewed Mr. Stewart's deposition I disagree with Eller Co.'s argument. At all times in his deposition Mr. Stewart maintained that the letter only amounted to a name change from Eller Co. to Maritime Services. ( See, e.g., Stewart Dep. 11:07-09, 11:14-25, 13:02, 17:04-06.) When asked what he meant by the statement that ILA Fund "did not object" he explained, "[ILA Fund] allowed the same people to keep doing business." (Stewart Dep. 14:08-13.) As to Eller Co.'s second point, I find that inaction by Plaintiffs' in having Maritime Services execute any documents is merely consistent with Plaintiffs' position that Eller Co. remained liable on its contract with Plaintiffs.
Mr. Stewart's testimony does not change the outcome of the analysis. While ILA Fund may have had no objection to the assignment from Eller Co. to Maritime Services there is nothing in the deposition which suggests that there was a meeting of minds between the parties to release Eller Co. from future liability under the contract. The letter communicated the transfer of Eller Co.'s operating personnel, assets, and liabilities to Maritime Services as an accomplished fact, and did not seek Plaintiffs' consent to this transaction. Mr. Stewart's deposition contains no evidence of novation.
IV. CONCLUSION
For the reasons explained above, it is ORDERED and ADJUDGED that
1. Defendant Eller Company, Inc.'s Motion for Rehearing on Plaintiffs' Motion for Partial Summary Judgment [D.E. 102] is DENIED.
2. Relatedly, Plaintiffs' Motion to Strike Portions of the Affidavit of Thomas E. Duggar [D.E. 89] is DENIED as moot.DONE AND ORDERED in Chambers at Miami, Florida