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G&E Real Estate, Inc. v. Young

United States District Court, District of Columbia

August 18, 2016

G&E REAL ESTATE, INC., Plaintiff
v.
AVISON YOUNG–WASHINGTON, D.C., LLC, et al., Defendants

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY United States District Judge

         Before the Court is Plaintiff’s [144] Motion for Reconsideration. Plaintiff seeks reconsideration of the Court’s Order dated February 26, 2016, to the extent that the Court granted summary judgment to Defendants on the breach of contract claim against Defendant Analytic Services (“ANSER”) (Count I) and the tortious interference with contract claim against the Avison Young Defendants (Count II). Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court concludes Plaintiff has provided no basis for the Court to reconsider its Order granting summary judgment to Defendants on Count I and Count II of the operative complaint. Accordingly, Plaintiff’s [144] Motion for Reconsideration is DENIED.

         I. BACKGROUND

         The Court presented the background of this case at length in its Memorandum Opinion accompanying the Order resolving Defendants’ motions for summary judgment. See generally G&E Real Estate, Inc. v. Avison Young-Washington, D.C., LLC, No. CV 14-418 (CKK), 2016 W L 7 77908, at *2-*3 (D.D.C. Feb. 26, 2016); see also Id. at *4-*11 (discussion of contract-related claims). Given the limited scope of the issues presented in the pending motion, there is no need to do so again here. Instead, the Court reserves a presentation of any relevant background for the issues discussed below.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 54(b) provides that “any order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” “The Court has broad discretion to hear a motion for reconsideration brought under Rule 54(b).” Flythe v. D.C., 4 F.Supp.3d 216, 218 (D.D.C. 2014) (quoting Isse v. Am. Univ., 544 F.Supp.2d 25, 29 (D.D.C. 2008)). “[T]his jurisdiction has established that reconsideration is appropriate ‘as justice requires.’ ” Cobell v. Norton, 355 F.Supp.2d 531, 540 (D.D.C. 2005). In general, “a court will grant a motion for reconsideration of an interlocutory order only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.” Stewart v. Panetta, 826 F.Supp.2d 176, 177 (D.D.C. 2011) (quoting Zeigler v. Potter, 555 F.Supp.2d 126, 129 (D.D.C. 2008)).

         III. DISCUSSION

         As the basis for Plaintiff’s Motion for Reconsideration, Plaintiff argues that there was a clear error of law in the Court’s original Memorandum Opinion accompanying the Order resolving Defendants’ motions for summary judgment.[2] Because Plaintiff never presented the arguments that are the basis for its Motion for Reconsideration in opposing summary judgment, in the first instance, the Court declines to exercise its discretion to reconsider its previous decision.

         With respect to the claims at issue in the Motion for Reconsideration, the Court previously outlined the parties’ arguments in the briefing on the motions for summary judgment as follows:

ANSER argues that the Tenant Representation Agreement was an executory contract with respect to the bankruptcy proceeding and that it was never assumed by the bankruptcy estate or assigned to BGC. Because the Tenant Representation Agreement was executory but was not assumed or assigned, ANSER argues, BGC had no stake in the contract that it could assign to Plaintiff G&E. Plaintiff responds that ANSER had materially breached the Tenant Representation Agreement prior to the filing of the bankruptcy petition and that, therefore, the contract could not be assumed or assigned through the bankruptcy process. Instead, the breach of contract claim, they argue, was assigned to BGC along with other such claims through the bankruptcy process. ANSER responds that there was no material breach of the Tenant Representation Agreement prior to the bankruptcy petition and that, even if there were such a breach, that it would not be sufficient to render the Agreement non-executory because the agreement was not terminated at that time. In essence, this amounts to a dispute about (1) whether Plaintiff has identified sufficient evidence of a relevant material breach to require factual resolution by a jury and (2) whether, legally, a material breach without any attempt to terminate is sufficient to render a contract non-executory.

G&E I, 2016 WL 777908 at * 5.

         In other words, as relevant here, Defendants argued that BGC-the entity from which Plaintiff purports to trace the claims at issue in the pending Motion for Reconsideration-had no stake in the underlying contract that it could subsequently assign to Plaintiff. Plaintiff presented only one legal theory in response: that Defendants had breached the contract prior to the February 20, 2012, bankruptcy petition. See G&E I, 2016 WL 777908, at *10 (“Plaintiff responds that the contract was materially breached prior to the bankruptcy petition and that the associated claims, therefore, were properly assigned to BGC and then to Plaintiff.”); see also, e.g., Pl.’s Opp’n to ANSER’S Mot. for Summary Judgment, ECF No. 128, at 14 (“Plaintiff was not required to assume the Brokerage Agreement pursuant to Section 365 of the Bankruptcy Code because the Agreement had already been breached”); id. at 14-15 (“A contract that has terminated or expired prior to the filing of a bankruptcy petition is no longer executory. … Because the Brokerage Agreement had been breached and was therefore terminated prior to G&E’s bankruptcy petition, there was nothing left to assume.”).Therefore, Plaintiff argued that the Tenant Representation Agreement was no longer executory as of the bankruptcy petition, and the contract and tortious interference claims were assigned to BGC during the bankruptcy proceedings. The factual predicate for this argument-the sole argument presented-was necessarily limited to events that occurred prior to the bankruptcy petition. See G&E I, 2016 WL 777908, at *6 (quoting Pl.’s Opp’n to ANSER’s Mot., ECF No. 128, at 16-17, 18-19).

         The Court resolved the motions for summary judgment on the basis of the record then before the Court. The only legal theory-and associated factual predicate-proffered by Plaintiff as to how BGC had obtained contract claims that it could, in turn, assign to Plaintiff was that of a pre-petition breach of contract. The Court thoroughly analyzed the record and concluded that there was no breach of contract prior to the bankruptcy petition. Id. at *8.[3] Accordingly, the Court concluded that the Tenant Representation Agreement was executory at the time of the bankruptcy petition. Because the pre-petition breach was the only basis Plaintiff identified for BGC having obtained a stake in the contract claim (which would allow it to survive summary judgment), and because the record did not show a pre-petition breach, the Court concluded that BGC had not acquired any stake in the contract claim. Because BGC never acquired a stake that could be subsequently assigned to Plaintiff, Plaintiff has no stake in the contract claim. Therefore, Plaintiff could not pursue that claim in this action. Id. For the same reasons, the Court in addition concluded that Plaintiff had never acquired a tortious inference with contract claim that it could pursue in this litigation. Id. at *10. Accordingly, the Court granted summary judgment to Defendants on those claims.

         The Court’s analysis and its conclusion was properly limited to the legal theory and factual predicate that were presented by the parties for the Court’s consideration. The Court did not reach issues that were not presented by the parties at that time.[4] However, as the basis for its Motion for Reconsideration, Plaintiff presents a wholly new legal theory, with a new factual predicate, as to why Plaintiff’s contract-based claims presented in Counts I and II of the operative complaint should have survived Defendants’ motions for summary judgment. Specifically, Plaintiff argues that the disputed claims should survive summary judgment because of a post-petition breach of contract.[5] In Plaintiff’s present motion, Plaintiff relies solely on a putative breach that occurred on June 11, 2012, ...


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