Opinion
Civil Action No: 03-3629 Section: "R" (5).
July 22, 2004
ORDER AND REASONS
Before the Court is defendant Mid-Continent Casualty Company's (Mid-Continent) motion for partial reconsideration under Federal Rule of Civil Procedure 59. Plaintiff The Rowley Group (Rowley) opposes the motion for partial reconsideration. For the following reasons, the Court confirms its earlier ruling.
I. Background
This suit arises out of repair and construction work at Schaumburg Elementary School, a public school in New Orleans, Louisiana (the project). Harvey Honoré Construction Company (Honoré) was the general contractor for the project. On August 8, 2001, Rowley entered into a subcontract with Honoré Construction under which Rowley agreed to furnish and provide casework, furniture, and basketball goals. In connection with the project, Honoré and Mid-Continent entered into a Labor and Material Payment Bond in favor of Orleans Parish School Board.
Rowley asserts that it has provided and installed all equipment to complete its contract with Honoré and Honoré therefore owes $489,555.50. Honoré has paid Rowley $176,095.00. Rowley filed this suit under the Louisiana Public Works Act (LPWA) against Mid-Continent as surety to recover the remaining balance due on the contract.
Both parties filed for summary judgment. By Order and Reasons dated March 26, 2004, this Court denied Rowley's motion for summary judgment because the furniture Rowley provided is not covered under the LPWA, and the value of Rowley's claim for covered materials presents issues of material fact. The Court granted Mid-Continent's motion for summary judgment in part as to Rowley's claims for furniture, and denied the motion in part because questions of fact existed as to the amount owed to Rowley under the contract. Specifically, the Court found that Rowley imputed Honoré's payment to two specific invoices, dated February 26, 2003 and June 26, 2003. The first invoice includes charges for casework and basketball goals, and Rowley attributed $61,786.00 of the payment to it. Because casework and basketball goals are covered materials under the bond, Mid-Continent is only liable for sums in excess of $61,786.00. The second invoice shows only charges for furniture, and Rowley attributed the remaining $114,300.00 to it. Because furniture is not covered under bond, Mid-Continent would not receive the benefit of that payment.
Mid-Continent moves to Court to reconsider the portion of its order denying Mid-Continent summary judgment. Mid-Continent argues the Rowley did not impute properly the payment of $114,300.00 to the furniture, and that Rowley lacks the authority to impute any payments. In response, Rowley offers the affidavit of Valerie Hulse, who attests that Honoré requested the imputation. (Pl.'s Mot. Opp. Recons., Aff. of Hulse.)
II. Discussion
1. Legal Standard
The Federal Rules of Civil Procedure do not formally recognize a motion to reconsider in haec verba. See Pryor v. United States Postal Serv., 769 F.2d 281, 285 (5th Cir. 1985). Nevertheless, the Fifth Circuit has held that a motion for reconsideration to reinstate a case may be classified under either Rule 59 or Rule 60, depending upon the time of filing. See id.; see also Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n. 14 (5th Cir. 1994) (en banc). Because Mid-Continent filed its motion within ten days of entry of the Court's March 26 order, the Court treats it as a motion to reconsider under Rule 59. Therefore, Mid-Continent's request to reconsider the Court's order is a Rule 59(e) motion to "alter or amend the judgment". See Pryor, 769 F.2d at 285.
A district court has considerable discretion to grant or to deny a motion under Rule 59(e). See Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993); Lavespere, 910 F.2d at 173. A court's reconsideration of a prior order is an extraordinary remedy which should be used only sparingly. See Fields v. Pool Offshore, 1998 WL 43217, No. Civ. A. 97-3170, at *2 (E.D. La. 1998), aff'd, 182 F.3d 353 (5th Cir. 1999); Bardwell v. George G. Sharp, Inc., 1995 WL 517120, Civ. A. No. 93-3590, at *1 (E.D. La. 1995). The court must "strike the proper balance between the need for finality and the need to render a just decision on the basis of all the facts." Bohlin, 6 F.3d at 355. Courts in this district hold that a moving party must satisfy at least one of the following criteria to prevail on a Rule 59(e) motion: (1) the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; or (4) the motion is justified by an intervening change in the controlling law. See Fidelity Deposit Co. v. Omni Bank, 1999 U.S. Dist. LEXIS 16649, 1999 WL 970526, *3 (E.D. La. 1999); Jupiter v. BellSouth Telecomms., Inc., 1999 WL 796218, No. Civ. A. 99-0628, at *1 (E.D. La. 1999); Burma Navigation Corp. v. Seahorse, 1998 WL 781587, No. Civ. A. 94-0795, at *1 (E.D. La. 1998); Fields, 1998 WL 43217 at *2. The Court will not grant relief on the basis of arguments that a party could or should have made before the Court issued judgment. Schiller v. Physicians Resource Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003). See also Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003) (stating same).
2. Analysis
Mid-Continent argues that the Court erred in concluding that Rowley imputed Honoré's payment to the two invoices. Mid-Continent asserts that imputation in this case is ineffective because the record lacks evidence that Rowley notified Honoré that it imputed the payments to the identified invoices. See Bonara v. Christina Bros. Poultry Co. Of Gretna, Inc., 336 So.2d 881, 890 (La.App.Ct. 1976) (noting that a debtor waives his right to object to imputation when he has notice or direct knowledge that his creditor has imputed his payment).
As this Court noted in its March 26 order, the documentation that Rowley submitted to Mid-Continent clearly indicates that payment was imputed to the two particular invoices. Furthermore, in response to the motion for reconsideration, Rowley submitted the affidavit of its accounts receivable manager who attests that the imputation in issue was made at the direction of Honoré The Court confirms its earlier order that Mid-Continent is not entitled to summary judgment to the extent of Rowley's claims above $61,786.
III. Conclusion
For the foregoing reasons, the Court DENIES Mid-Continent's motion for partial reconsideration.