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Slavin v. Imperial Parking (U.S.), LLC

United States District Court, D. Maryland, Southern Division

January 9, 2018

MARC R. SLAVIN, et al., Plaintiffs/Counter-Defendants,
v.
v. IMPERIAL PARKING (U.S.), LLC, Defendant/Counterclaimant.

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         Plaintiffs/Counter-Defendants MarcParc Valet, Inc., and MarcParc, Inc. and their sole shareholder, Marc R. Slavin (collectively, “MarcParc”), entered into an Asset Purchase Agreement (“APA”), ECF No. 35-2, with Defendant Imperial Parking (U.S.), LLC (“Impark”), on March 10, 2015, under which MarcParc, a company that operated public parking lots and garages in Washington, D.C., Virginia, and Maryland, “sold substantially all of its assets” to Impark.[1] The APA set a price for the acquisition, but also provided for a downward adjustment under certain circumstances. It included an arbitration clause, APA § 6.8(b)(iii) (“Arbitration Clause”), under which the parties agreed that, if they disagreed about the amount of the adjustment and were unable to resolve their dispute, they would “submit the disputed matters to Grossberg Company . . . (the ‘Independent Accountants'), to make a final determination of the calculation.”

         The parties disputed the amount and could not resolve the dispute, so MarcParc submitted the dispute to Richard Hill of Grossberg Company (“Grossberg”). Impark made its required responsive submission to Grossberg by letter on January 27, 2016, and email one day later. Two hours after sending the email, Impark “became aware” that MarcParc had a prior relationship with Grossberg. Impark ceased participating in the arbitration and did not communicate further with Grossberg, although it did inform MarcParc by phone on February 9, 2016 that it “objected to Mr. Hill serving as the ‘Independent Accountant.'” Grossberg entered a final award (“Arbitration Award”) in favor of MarcParc on February 26, 2016.

         MarcParc initiated this litigation to confirm the Arbitration Award on May 18, 2016, ECF No. 2, and then filed a Motion to Confirm Arbitration Award, ECF No. 35, as well as a Motion to Dismiss some of the counterclaims that Impark had filed against it, ECF No. 41. I found that Impark's challenge to the award was untimely and that res judicata barred three of its counterclaims. Accordingly, on June 19, 2017, I granted MarcParc's motions and entered judgment in MarcParc's favor on Count II of its Complaint, although I denied MarcParc's request that I enter a final judgment pursuant to Rule 54(b). June 19, 2017 Mem. Op. & Order, ECF No. 63.

         Impark file a Motion to Reconsider an Interlocutory Order or, in the Alternative, to Amend or Make Additional Findings, ECF No. 72, which the parties have fully briefed, ECF Nos. 72-1, 73, 74. A hearing is not necessary. See Loc. R. 105.6. Because Impark has not shown a basis for reconsidering the June 19, 2017 Memorandum Opinion and Order, I will deny the motion.

         Procedural History

         The Arbitration Award issued in favor of MarcParc on February 26, 2016, and MarcParc filed this lawsuit to confirm the Arbitration Award on May 18, 2016; MarcParc also claimed breach of contract. ECF No. 2. Impark filed an answer on July 14, 2016, ECF No. 10, after which I entered a Scheduling Order, ECF No. 13. Impark then filed a counterclaim for breach of the APA (Count I), breach of a Transition Services Agreement (Count II), fraudulent inducement (Count III), breach of duty of good faith and fair dealing (Count IV), tortious interference with contractual relations and prospective economic advantage (Count V), and civil conspiracy (Count VI). Am. Countercl., ECF No. 52.

         After the Scheduling Order issued and was revised once, ECF No. 19, MarcParc filed its Motion to Confirm Arbitration Award, ECF No. 35, and its Motion to Dismiss Count I of Defendant's Amended Counterclaim in part and to dismiss Counts III, IV, and VI in their entirety, ECF No. 41. Impark opposed MarcParc's Motion to Confirm Arbitration Award, formally seeking to vacate the award for the first time. ECF No. 39. Because MarcParc's motions, if successful, would not dispose of the case in its entirety, the parties proceeded with discovery.

         At the parties' request, I revised the Scheduling Order again, extending the discovery deadline to April 28, 2017. ECF Nos. 56, 57, 58. On April 17, 2017, Impark informed the Court that it “expect[ed] that discovery [would] provide even additional support for its position that the arbitration award should be vacated, ” and it “believe[d] that the recent deposition of Marc Slavin yielded testimony that further supports its position that the arbitration award should be vacated.” ECF No. 60. On the discovery deadline, the parties reported that there were outstanding depositions, culminating with depositions of their damages experts on the week of June 19, 2017, and they sought an extension of discovery to June 26, 2017, ECF No. 61, which I granted, ECF No. 62.

         On June 19, 2017, one week before discovery concluded, I found that Impark's challenge to the award was untimely, and accordingly I granted MarcParc's Motion to Confirm Arbitration Award and entered judgment in MarcParc's favor on Count II of its Complaint, although I denied MarcParc's request that I enter a final judgment pursuant to Rule 54(b). ECF No. 63. I dismissed Count I of Impark's Amended Counterclaim in part, based on Impark's concession that, if I granted MarcParc's Motion to Confirm Arbitration Award, Impark's first count should be dismissed in part. And I dismissed Counts III, IV, and VI of the Amended Counterclaim on res judicata grounds.

         Impark promptly sought leave to file a motion for reconsideration. I held a conference call on July 13, 2017 with regard to the proposed motion, and I set page limits of fifteen pages for Impark's memorandum and MarcParc's opposition and seven pages for Impark's reply. ECF No. 69. Impark adhered to this page limit, but did so by “relyi[ng] on and incorporat[ing] its Opposition to the Motion to Confirm, ” see Def.'s Mem. 1 n.1, and using a 10-point font size in its 69 footnotes, in violation of this Court's Local Rules. See Loc. R. 102.2(b) (“Typed, printed, or written material shall appear only on the front side of any page in at least 12-point font size.”). Additionally, Impark stated that, “in light of the Court's page limit, not every relevant fact is noted in this Motion, but is highlighted in the exhibits as the Court instructed at the July 13, 2017 Status Conference.” Def.'s Mem. 1 n.1. The purpose of highlighting relevant portions of exhibits is to make it easier to locate cited material, not to include additional material. Indeed, in the context of a summary judgment motion, “[t]he court need consider only the cited materials, ” Fed.R.Civ.P. 56(c)(3), and I am not aware of a requirement that, in the context of a motion for reconsideration, the Court must thumb through the exhibits (which in this case number 77 and total 887 page) looking for highlighted material and then determine its relevance to a party's various arguments. Accordingly, I have considered only the cited materials.[2]

         Standard of Review

         Impark seeks relief “[p]ursuant to Fed.R.Civ.P. 54(b) and/or 52(b) . . . .” Def.'s Mem. 1.

         Rule 54(b)

         Rule 54(b) governs motions for reconsideration of orders such as the June 19, 2017 Memorandum Opinion and Order “that adjudicate[] fewer than all the claims or the rights and liabilities of fewer than all the parties.” Fed.R.Civ.P. 54(b). It provides that such an order “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Id.

         The Fourth Circuit has not stated a standard for review of a Rule 54(b) motion, but it has said that, “generally at least, a review of an interlocutory order under Rule 54 is not subject to the restrictive standards of motions for reconsideration of final judgments under Rule 60.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991); see also Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003). Nor is the standard for Rule 59(e) binding on review under Rule 54. See Am. Canoe Ass'n, 326 F.3d at 514; Cezair v. JPMorgan Chase Bank, N.A., No. DKC-13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014). Nonetheless, “courts frequently look to these standards for guidance in considering such motions.” Cezair, 2014 WL 4955535, at *1; see also Peters v. City of Mt. Rainier, No. GJH-14-955, 2014 WL 4855032, at *3 n.1 (D. Md. Sept. 29, 2014) (looking to Rule 60(b) standard); Harper v. Anchor Packing. Co., No. GLR-12-460, 2014 WL 3828387, at *1 (D. Md. Aug. 1, 2014) (looking to Rule 59(e) standard); Potter v. Potter, 199 F.R.D. 550, 552 n.1 (D. Md. 2001) (applying Rule 59(e) standard). A Rule 59(e) motion “need not be granted unless the district court finds that there has been an intervening change of controlling law, that new evidence has become available, or that there is a need to correct a clear error [of law] or prevent manifest injustice.” Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 411 (4th Cir. 2010); see also Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (“A Rule 59(e) motion may only be granted in three situations: ‘(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.'” (citation omitted)). Rule 60(b) provides overlapping, but broader, bases for relief from a court order, including that there has been “mistake, inadvertence, surprise, . . . excusable neglect[, ] . . . newly discovered evidence[, ] . . . fraud . . ., misrepresentation, or misconduct”; that “the judgment is void” or “has been satisfied”; or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b).

         In keeping with these standards, this Court has held that “[a] motion for reconsideration is appropriate to ‘correct manifest errors of law or fact or to present newly discovered evidence, ' or where there has been an intervening change in controlling law.” Potter, 199 F.R.D. at 552 n.1 (citations omitted). “Although there may be many valid reasons to reconsider an order, ‘a motion to reconsider is not a license to reargue the merits or present new evidence' that was previously available to the movant.” Davidson v. Sarnova, Inc., No. JKB-17-1067, 2017 WL 5564654, at *2 (D. Md. Nov. 20, 2017) (quoting Royal Ins. Co. of Am. v. Miles & Stockbridge, P.C., 142 F.Supp.2d 676, 677 n.1 (D. Md. 2001) (citing RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658 (4th Cir. 1992))). It “is not a license for a losing party's attorney to get a second bite at the apple.” Potter, 199 F.R.D. at 552-53 (quoting Shields v. Shetler, 120 F.R.D. 123, 126 (D. Co. 1988)). These “rules of constraint . . . make sense when a district court is asked to reconsider its own order” because “‘[w]ere it otherwise, then there would be no conclusion to ...


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