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Bearbones, Inc. v. Peerless Indemnity Insurance Co.

United States District Court, D. Massachusetts

January 25, 2018

BEARBONES, INC., d/b/a MORNINGSIDE BAKERY, and AMARAL ENTERPRISES LLC, Plaintiffs,
v.
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

         I. Introduction

         On 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.[1] 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.

         II. Legal Standard

         Federal 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).

         III. Discussion

         Plaintiffs 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.

         A. Arguments Relating to Defendant's Expert Report

         Plaintiff 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).

         Plaintiffs 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.

         B. Arguments Relating to the Inclusion of Lee Bank as a Payee

         Plaintiffs 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.”).

         Plaintiffs 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.

         C. Argument Relating to Defendant's Failure to Repair the ...


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