United States District Court, District of Columbia
DEBORAH A. ROBINSON, United States Magistrate Judge
and counterclaim Defendant, FMD Restoration, Inc.
(“FMD”) initially brought suit in a breach of
contract action against Defendant and counterclaim Plaintiff
Baistar Mechanical, Inc. (“Baistar”). Baistar
asserted a counterclaim against FMD alleging breach of
contract. The case proceeded to a bench trial, following
which the court held that while FMD had materially breached
the contract between the parties, Baistar failed to introduce
evidence sufficient to demonstrate actual damages. The court,
therefore, entered judgment for Baistar, but awarded only
nominal damages. Baistar now moves for the court to alter or
amend its findings of fact pursuant to Rule 52, and to alter
or amend its judgment pursuant to Rule 59(a)(2).
filed the complaint in May, 2013, alleging three counts of
breach of contract by Baistar. See Complaint (ECF
No. 1). On June 20, 2013, Baistar answered the Complaint and
pled as a counterclaim two counts of breach of contract, and
a third count alleging tortious interference with business
expectations by FMD. See Defendant Baistar
Mechanical, Inc.'s Counter-Complaint (ECF No. 5-1). On
August 27, 2013, the Court (Jackson, J.) referred the matter
to the undersigned for the possibility of settlement. Order
Referring Case (ECF No. 14). On December 12, 2013, the
parties consented to proceed before the undersigned for all
purposes. Consent to Proceed before U.S. Magistrate Judge for
All Purposes (ECF No. 18).
undersigned held a four-day bench trial concluding on May 23,
2014, after which both parties were instructed to submit
proposed findings of fact and conclusions of law. 05/23/2014
Minute Entry. Baistar submitted its proposed findings on
October 27, 2014. See Proposed Findings of Fact (ECF
No. 39). FMD submitted its proposed findings on November 24,
2014. See Proposed Findings of Fact (ECF No. 40).
The undersigned issued a memorandum opinion and an order of
final judgment on June 21, 2016. FMD Restoration, Inc. v.
Baistar Mechanical, Inc., No. 13-00651, 2016 WL 3461183
(D.D.C. June 21, 2016); Order of Final Judgment (ECF No. 49).
OF THE PARTIES
seeks to amend the court's findings of fact on the ground
that the court “made a mistake of fact in finding that
the breach of contract damages were less than the costs
avoided by terminating FMD with cause.”
Defendant/Counter-Complaintant Baistar Mechanical, Inc.'s
Motion to Alter or Amend Judgment (“Motion”) (ECF
No. 50) at 2. Baistar argues that the court held it to an
“unreasonably high standard of evidence, ”
id. at 3, when it found that Baistar had failed to
show that “the materials supplied and work performed by
Mega Construction were within the scope of FMD's
requirements, ” 2016 WL 3461183, at *11. Baistar
submits that it “proved well beyond a preponderance of
the evidence that Mega Construction did [replacement work],
and that the work was within the scope” of the contract
with FMD. Motion at 3.
support, Baistar points to several portions of the trial
transcript, wherein Baistar owner Hung Ku Jun testified about
the arrangement between Baistar and Mega Construction.
Id. at 3-5. Baistar argues that Mr. Jun's
testimony was unrebutted by FMD on cross-examination, and
there “is nothing in the record to suggest that the
work was not in the scope.” Id. at 5.
Accordingly, Baistar seeks to amend the findings of fact to
include the payments to Mega Construction among Baistar's
actual damages. Id. at 6. Such a finding would
necessitate an amendment of the judgment; awarding Baistar
$135, 717.10. Id.
alternative, Baistar requests “that the Court open the
matter for further proceedings, to call representatives from
Mega Construction and Dominion Millwork to testify as to the
work that was done, and corroborate the testimony of Mr. Jun
and the payment documentation.” Id.
contends that Baistar's motion should be construed as a
Rule 59(e) motion for reconsideration, and that such a motion
is not warranted by the circumstances. Plaintiff/Counterclaim
Defendant's Memorandum in Opposition and Statement of
Points and Authorities in Support (“Opposition”)
(ECF No. 51) at 1-2. FMD argues that none of the criteria for
a Rule 59(e) motion are present because there has been no
change in controlling law, new evidence not available at
trial, or a clear error of law. Id. at 2-3.
According to FMD, the testimony cited by Baistar does not
support amending the judgment because it contained
“many incongruities, ” id. at 3, and
demonstrated that Baistar “hired Mega Construction,
Delmy Construction and Dominion Millwork to complete all of
the work on the Project; whether or not it was FMD's
work[.]” Id. at 4-5. Baistar did not file a
reply to FMD's opposition.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 52(b) a party may move,
within 28 days of the entry of judgement, for the court to
“amend its findings-or make additional findings-and . .
. amend the judgment accordingly. Fed.R.Civ.P. 52(b). This
Rule “permits the trial court to correct manifest
errors of law or fact, make additional findings or take other
action that is in the interests of justice.”
Ashraf-Hassan v. Embassy of France, No. 11-805
(JEB), 2016 WL 2626833, at *8 (D.D.C. May 6, 2016) (quoting
Bigwood v. Defense Intelligence Agency, 770
F.Supp.2d 315, 318 n.2 (D.D.C. 2011)). The decision of
whether to grant such a motion is left “to the sound
discretion of the trial judge and is not an avenue for
relitigating issues upon which the moving party did not
prevail at trial.” Id. (quoting Material
Supply Int'l, Inc. v. Sunmatch Indus. Co., Ltd., No.
94-1184, 1997 WL 243223, at *2 (D.D.C. May 7, 1997)).
Accordingly, the moving party “bears a heavy burden in
seeking to demonstrate clear error of manifest injustice
necessitating amendment of the judgment.” Id.
Rule 52 “cannot be a substitute for an appeal”
and cannot be used as “a second opportunity to litigate
a point, to present evidence that was available but not
previously offered, or to advance new theories by moving to
amend a particular finding of fact or conclusion of
law.” Salazar v. District of Columbia, 685
F.Supp.2d 72, 75 (D.D.C. 2010) (citing 9C Wright &
Miller, Federal Practice and Procedure, § 2582
(3d ed. 2009)).
to Rule 59, a party may “open the judgment if one has
been entered, take additional testimony, amend findings of
fact and conclusions of law or make new ones, and direct the
entry of a new judgment.” Fed.R.Civ.P. 52(a)(2). As
with motions brought under Rule 52, “Rule 59 motions
may not be used to religitate old matters, or to raise
arguments or present evidence that could have been raised
prior to the entry of judgment.” Salazar, 685
F.Supp.2d at 75 (citing 11 Wright, Miller & Kane,
Federal Practice and Procedure, § 2810.1 (2d
ed. 2009); Exxon Shipping Co. v. Baker, 554 U.S. 471
(2008); Klayman v. Judicial Watch, Inc., No. 06-670
(CKK), 2007 WL 1034936, at *2-3 (D.D.C. Apr. 3, 2007);
United States v. Western Elec. Co., Inc., 690
F.Supp. 22, 25 (D.D.C. 1988)). “The purpose of Rule
59(a)(2) is not to introduce new evidence that was available
at the time of trial but was not proferred[.]”
Ashraf-Hassan, 2016 WL 2626833, at *11 (citing
Chavez v. City of Albuquerque, 640 F.Supp.2d 1340,
1343 (D.N.M. 2008)). ...