United States District Court, D. Massachusetts
BEARBONES, INC., d/b/a MORNINGSIDE BAKERY, and AMARAL ENTERPRISES LLC, Plaintiffs,
PEERLESS INDEMNITY INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER REGARDING BEARBONES, INC. D/B/A
MORNINGSIDE BAKERY'S AND AMARAL ENTERPRISES LLC'S
MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO FED. R. CIV. P.
59 (DKT. NO. 127)
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE
October 17, 2017, the court granted the defendant Peerless
Indemnity Insurance Company's (“Defendant”)
motion for summary judgment against the plaintiffs Bearbones,
Inc., d/b/a Morningside Bakery (“Bearbones”) and
Amaral Enterprises, LLC (“Amaral”) (collectively,
“Plaintiffs”) (Dkt. No. 125) on Counts II and III
of Plaintiffs' verified complaint asserting claims for
breach of contract and unfair and deceptive acts or practices
under Mass. Gen. Laws chs. 93A and 176D and denied
Plaintiffs' cross motion for summary judgment on Count
III of the complaint. Judgment entered in Defendant's favor
the following day (Dkt. No. 126). On November 13, 2017,
Plaintiffs moved to alter or amend the judgment pursuant to
Fed.R.Civ.P. 59(e) (Dkt. No. 127). The court assumes
familiarity with its previous decision. Further, the court
denies Plaintiff's request for oral argument on this
motion. See L.R., D. Mass. 7.1(e), (f). After a
review of the record, Plaintiffs' motion is denied.
Rule of Civil Procedure 59(e) permits a party to file a
motion to alter or amend a judgment within 28 days after the
entry of the judgment. Fed.R.Civ.P. 59(e). The rule
“does not list specific grounds for affording relief
but, rather, leaves the matter to the sound discretion of the
district court.” Ira Green, Inc. v. Military Sales
& Serv. Co., 775 F.3d 12, 28 (1st Cir. 2014) (citing
Venegas-Hernandez v. Sonolux Records, 370 F.3d 183,
190 (1st Cir. 2004)). However, the “discretion must be
exercised with considerable circumspection: revising a final
judgment is an extraordinary remedy and should be employed
sparingly.” Id. (citing Palmer v. Champion
Mortg., 465 F.3d 24, 30 (1st Cir. 2006)). The First
Circuit “generally recognize[s] three valid grounds for
Rule 59(e) relief: “an ‘intervening change'
in the controlling law, a clear legal error, or
newly-discovered evidence.'” Carrero-Ojeda v.
Autoridad de Energía Eléctrica, 755 F.3d
711, 723 (1st Cir. 2014) (quoting Soto-Padró v.
Pub. Bldgs. Auth., 675 F.3d 1, 9 (1st Cir. 2012)).
“A motion for reconsideration is not the venue to . . .
advance arguments [that] should have developed prior to
judgment, Iverson v. City of Boston, 452 F.3d 94,
104 (1st Cir. 2006), nor is it a mechanism to regurgitate
‘old arguments previously considered and rejected,
' Nat'l Metal Finishing Co., Inc. v.
BarclaysAmerican/ Commercial, Inc., 899 F.2d 119, 123
(1st Cir.1990).” Biltcliffe v. CitiMortgage,
Inc., 772 F.3d 925, 930 (1st Cir. 2014).
advance six arguments - two of which are repetitious and are
combined in the court's analysis below - as to why
reconsideration is warranted. None are persuasive.
Arguments Relating to Defendant's Expert Report
first complains that Defendant filed an expert report with
the court on October 10, 2017, while the summary judgment
motions were pending, and that the timing of the filing
evinces Defendant's intent to improperly persuade the
court based on the conclusions of the report. This argument
is easily dispensed with. First and foremost, the expert
report was not part of the summary judgment record. Not only
did the court not consider the report in deciding the summary
judgment motions, but the court did not even look at it.
Second, there is nothing suspect about the timing of
Defendant's filing as Plaintiffs suggest. Defendant was
merely complying with the October 10, 2017 deadline set by
the court. While it is unclear why Defendant filed the report
with the court - as opposed to simply serving it on
Plaintiffs, which is all Fed.R.Civ.P. 26(a)(2) requires -
Plaintiffs similarly filed their expert reports with the
court, leaving Plaintiffs without a basis to complain (Dkt.
Nos. 112, 116).
also argue that Defendant's expert report values
Plaintiffs' business loss at $381, 700 as of the date of
the incident giving rise to the claim and, thus, represents
an admission that the claim was worth $381, 700. Plaintiffs
mischaracterize the report, which does not include a
conclusion that Plaintiffs' business loss was $381, 700.
Moreover, in granting Defendant's motion for summary
judgment, the court concluded that the determination of the
amount of Plaintiffs' loss by the Mass. Gen. Laws ch.
175, § 99 reference panel was conclusive. Plaintiffs
have not shown that this conclusion was clearly erroneous or
that there has been any intervening change in the law that
formed the basis for this conclusion. Accordingly, Plaintiffs
are not entitled to Rule 59(e) relief in connection with
Defendant's expert report.
Arguments Relating to the Inclusion of Lee Bank as a
argue that Defendant's inclusion of Lee Bank as a loss
payee on certain of the checks issued in connection with the
loss subjects Defendant to liability under Chapter 93A and
for breach of contract. The court has already considered and
rejected Plaintiffs' argument on Chapter 93A liability,
concluding that Peerless's conduct fell outside the
boundaries of what may qualify for consideration as a
violation of Chapter 93A. Plaintiffs have not shown that this
conclusion constitutes clear error or that there has been any
intervening change in the law. Plaintiffs' repetition of
their previous argument is not sufficient to warrant Rule
59(e) relief. United States v. $23, 000 in U.S.
Currency, 356 F.3d 157, 165 n.9 (1st Cir. 2004)
(“The repetition of previous arguments is not
sufficient to prevail on a Rule 59(e) motion.”).
have not previously advanced the theory that the inclusion of
Lee Bank as a loss payee breached the terms of the contract
of insurance. Plaintiffs' breach of contract claim
encompassed only Peerless's alleged failure to pay for
Plaintiffs' covered losses. Because Plaintiffs did not
advance this argument prior to judgment, it is rejected here
as a basis for Rule 59(e) relief on reconsideration.
Biltcliffe, 772 F.3d at 930.
Argument Relating to Defendant's Failure to Repair