84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al, No. 2:2012cv01748 - Document 293 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying 273 Motion for Reconsideration. Signed by Judge Sarah S. Vance on 8/8/2017. (cg)
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84 Lumber Company v. F.H. Paschen, S.N. Nielsen & Associates, LLC et al Doc. 293 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA 84 LUMBER COMPANY CIVIL ACTION VERSUS NO. 12-1748 F.H. PASCHEN, S.N. NIELSEN & ASSOCIATES, LLC, ET AL. SECTION “R” (5) ORD ER AN D REASON S Plaintiff 84 Lum ber Com pany m oves the Court to reconsider its May 16, 20 17 Order 1 granting defendants’ m otion for partial summ ary judgm ent. 2 For the following reasons, 84 Lumber’s m otion is denied. I. BACKGROU N D The Court has already detailed the facts of this case in m ultiple orders, including the one that 84 Lum ber asks the Court to reconsider. 3 For here, it will suffice to recount that this case arises out of two school construction projects in New Orleans, Louisiana. Both projects were subject to the provisions of the Louisiana Public Works Act (LPWA), La. Rev. Stat. § 38:2241, et seq. Defendant Paschen was the general contractor on both 1 2 3 R. Doc. 263. R. Doc. 273. See generally R. Docs. 151, 20 6, 263. Dockets.Justia.com projects, and subcontracted a portion of each project to J & A Construction Managem ent Resources Com pany, Inc. (J & A). 4 J & A then subcontracted a portion of its obligations to 84 Lumber. 5 According to 84 Lum ber, in April 20 11, Paschen and J & A stopped paying 84 Lum ber for its work on the projects. 6 On J une 8, 20 12, 84 Lum ber filed two sworn statem ents of claim s, one for each project. 84 Lum ber claim ed $ 80 8,520 .39 for the Osborne Project, and $ 1,0 42,0 80 .0 9 for the South Plaquem ines Project. 7 84 Lumber reflected in two J une 20 12 letters m ailed to the Plaquem ines Parish School Board, and to the Louisiana Department of Education and the Sureties, respectively, that 84 Lumber had em ailed Paschen’s attorney Charles F. Seem ann copies of the sworn statements. 8 On J uly 5, 20 12, 84 Lum ber sued Paschen and the projects’ Sureties, alleging that 84 Lum ber was not paid in full for work perform ed under its Master Service Agreement with J & A. 9 84 Lum ber sued under the LPWA, seeking paym ent on its J une 20 12 Sworn Statements of Claim s from both 4 R. Doc. 263 at 1-2. Id. 6 R. Doc. 1 at 3-4 ¶ 9. 7 R. Doc. 214-32 at 4 (Osborne Project); R. Doc. 214-21 at 7 (South Plaquem ines Project). 8 R. Doc. 214-22 at 1; R. Doc. R. Doc. 213-32 at 1. 9 R. Doc. 1. 2 5 Paschen and the Sureties. 10 The case was stayed for nearly three years while the parties attem pted to pursue their claim s through arbitration. 11 After the stay was lifted, defendants m oved for partial sum mary judgm ent on 84 Lum ber’s LPWA claim s. 12 On May 16, 20 17, the Court granted defendants’ m otion because it found that 84 Lumber had failed to comply with the notice requirements of section 2247 of the LPWA. 13 In doing so, the Court rejected 84 Lumber’s argument that all that is required under section 2247 is “actual notice.”14 84 Lumber now m oves the Court to reconsider its order under Federal Rule of Civil Procedure 59(e), arguing both that the Court com m itted m anifest error and that failure to reconsider will result in m anifest injustice. 15 Paschen and the Sureties filed a response in opposition, 16 and 84 Lum ber replied. 17 10 11 Id. at 4-6 ¶¶ 13-14, 16, 18. For a history of the failed arbitration process, see R. Doc. 151 at 1-6. 12 R. Doc. 220 . R. Doc. 263 at 21-23. The Court also found that defendants were entitled sum m ary judgm ent on 84 Lum ber’s unjust enrichm ent claim . Id. at 24. 14 Id. at 16-22. 15 R. Doc. 273-1 at 5-6. 16 R. Doc. 275. 17 R. Doc. 281. 3 13 II. LEGAL STAN D ARD A district court has considerable discretion to grant or deny a m otion under Rule 59(e). See Edw ard H. Bohlin Co. v. Banning Co., 6 F.3d 350 , 355 (5th Cir. 1993). Reconsideration of an earlier order is an extraordinary remedy, which should be granted sparingly. See Fields v. Pool Offshore, Inc., 1998 WL 43217, *2 (E.D. La. Mar. 19, 1998); Bardw ell v. George G. Sharp, Inc., 1995 WL 517120 , *1 (E.D. La. Aug. 30 , 1995). The Court m ust “strike the proper balance between the need for finality and the need to render a just decision on the basis of all the facts.” Edw ard H. Bohlin Co., 6 F.3d at 355. A m oving party m ust satisfy at least one of the following criteria to prevail on a Rule 59(e) m otion: (1) the m otion is necessary to correct a m anifest error of fact or law; (2) the m ovant presents newly discovered or previously unavailable evidence; (3) the m otion is necessary in order to prevent m anifest injustice; and (4) the m otion is justified by an intervening change in the controlling law. See Fidelity & Deposit Co. of Md. v. Om ni Bank, 1999 WL 970 526, *3 (E.D. La. Oct. 21, 1999); Fields, 1998 WL 43217 at *2; see also Com pass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995) (“Rule 59 and Rule 60 (b)(2) share the same standard for granting relief on the basis of newly discovered evidence.”). 4 III. D ISCU SSION 84 Lumber does not base this m otion on newly discovered or previously unavailable evidence, nor does it argue that reconsideration is justified by an intervening change in the controlling law. Instead, it argues that the Court “based its ruling” on a m anifest error of fact because it found that there was no evidence in the record establishing that Paschen’s thencounsel Charles Seem ann received 84 Lum ber’s em ailed copies of its sworn statements, or that he brought the statem ents to Paschen. 18 Additionally, 84 Lum ber argues that failure to reconsider will result in m anifest injustice. The Court addresses each argument in turn. A. Th e Co u rt D id N o t Bas e its Ru lin g o n a Man ife s t Erro r o f Fact 84 Lumber asserts that the Court made a m anifest error of fact when it distinguished cases relied on by 84 Lum ber because in those cases there was “undisputed evidence that the defendant-contractor had received the notice containing the statutorily-required inform ation sent from the plaintiffs.”19 18 R. Doc. 273-1 at 5. Alternatively, 84 Lum ber asks the Court to order defendants to subm it evidence establishing that it did not receive the em ails, so that 84 Lum ber can respond with its own evidence. Id. at 4. 19 R. Doc. 263 at 21 (citations om itted) (em phasis in original). 5 According to 84 Lum ber, Paschen conceded receipt of the notice, 20 when it wrote in its m em orandum in support of its m otion: “the only ‘notice’ Paschen received . . . were copies of the new Sworn Statements sent to the Projects’ respective owners on J une 19, 20 12 . . . , and J une 20 , 20 12.”21 This one sentence—taken out of context of Paschen’s legal argum ent—is not evidence that Paschen received the notice, but even if it were, it does not show that the Court based its ruling on a m anifest error of fact. First, the finding that there was no evidence of receipt was not an “obvious m istake or departure from the truth.” Guy v. Crow n Equip. Corp., 394 F.3d 320 , 325 (5th Cir. 20 0 4) (citation om itted). Paschen’s use of the word “received” in its legal brief is not com petent sum m ary judgm ent evidence, and the Court is well within its discretion not to treat this statem ent as a binding judicial adm ission. See, e.g., Pool Co. v. Cooper, 274 F.3d 173, 185 (5th Cir. 20 0 1) (“Nor is [defendant’s] adm ission, m ade in passing in the one short paragraph he devotes to this issue, on par with the ‘overwhelm ing, consistent totality of the [ ] circum stances’ in which we have previously held a judicial adm ission binding.”) (quoting Stallard v. United States, 12 F.3d 489, 496 (5th Cir. 1994)); see also W illiam s v. State, No. 14-154, 20 16 WL 20 21 R. Doc. 273-1 at 2. R. Doc. 220 -1 at 13. 6 754629, at *2 (M.D. La. Feb. 24, 20 16) (“[T]he Court declines to exercise its vast discretion to treat statements in m em oranda as binding judicial adm issions of fact.”) (citation om itted) (emphasis in original). Because Paschen’s statement in its legal brief was not a binding adm ission, the Court’s finding was not a departure from the truth. More significantly, the Court did not base its ruling on this lack of evidence, but instead on the undisputed evidence that the com m unications sent from 84 Lumber did not satisfy the clear language of section 2247. Section 2247 requires written notice “stating with substantial accuracy the am ount claim ed and the name of the party to whom the m aterial was furnished or supplied or for whom the labor or service was done or perform ed,” and the notice “shall be served by m ailing the same by registered or certified m ail, postage prepaid, in an envelope addressed to the contactor at any place he m aintains an office in the state of Louisiana.” La. Rev. Stat. § 38:2247. It rem ains undisputed that em ails to Paschen’s counsel are not a m ailing by registered or certified m ail addressed to the contractor at the contractor’s office. The Court based its ruling on 84 Lum ber’s failure to com ply with these requirements, not on the lack of evidence indicating 7 Paschen’s receipt. 22 Accordingly, the Court did not base its ruling on a m anifest error of fact. B. Th e Co u rt’s Ord e r W ill N o t Re s u lt in Man ife s t In ju s tice Next, 84 Lumber argues that granting sum m ary judgment in favor of defendants “based solely on a technical issue” is “not what the Public Works Act intends” and will result in m anifest injustice. But 84 Lum ber’s argument here is sim ply a regurgitation of the “actual notice” argum ent that the Court has already rejected. See LeClerc v. W ebb, 419 F.3d 40 5, 412 n.13 (5th Cir. 20 0 5) (“A m otion for reconsideration m ay not be used to rehash rejected arguments.”) (citation om itted). Despite 84 Lumber’s protestations to the contrary, the Louisiana caselaw does not support its position that “actual notice” is sufficient, no m atter the extent of noncom pliance with the plain term s of section 2247. At best, the cases relied on by 84 Lumber establish that notice m ailed by regular rather than certified m ail will not defeat one’s LPWA claim , Bob McGaughey Lum ber Sales, Inc. v. Lem oine Co., Inc., 590 So. 2d 664, 667 (La. App. 3 Cir. 1991), and nor will im properly designating a claim ant as a 22 Because this lack of evidence was not the basis for the Court’s ruling, the Court will not require the parties to subm it evidence on this issue. 8 corporation rather than a sole proprietorship. Cole’s Const. Co., Inc. v. Knotts, 619 So.2d 876, 878 (La. App. 3 Cir. 1993). Here, the noncompliance was m ore extensive; 84 Lum ber not only sent its purported notice by em ail rather than certified m ail (despite sending earlier com m unications via certified m ail), but also sent it to the wrong recipient. 23 As stated in the Court’s order, the Louisiana Supreme Court has repeatedly instructed that the LPWA should be “strictly construed.” See, e.g., Guichard Drilling Co. v. Alpine Energy Servs., Inc., 657 So. 2d 130 7, 1313 (La. 1995). If the Court were to find that 84 Lum ber’s failure to com ply with section 2247 was merely “technical” and therefore not fatal to its claim , the Court would be ignoring the Louisiana Suprem e Court’s instruction. In doing so, the Court would also be rewriting section 2247. That is a bridge too far. See Rhy nes v. Branick Mfg. Corp., 629 F.2d 40 9, 410 (5th Cir. 1980 ) (stating that federal courts, sitting in diversity and applying state law, should avoid “substantive innovation” in state law); see also Cim ino v. Ray m ark Industries, Inc., 151 F.3d 297, 313-14 (5th Cir. 1998) (collecting cases). Thus, 84 Lum ber has failed to show that the Court’s order will result in m anifest injustice. 23 Additionally, as the Court’s previous order pointed out, 84 Lum ber’s com m unications also appeared to not state with substantial accuracy the am ount 84 Lum ber was claim ing. R. Doc. 263 at 22 n.50 . 9 IV. CON CLU SION For the foregoing reasons, 84 Lumber’s m otion for reconsideration is DENIED. 8th New Orleans, Louisiana, this _ _ _ _ _ day of August, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 10
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