United States District Court, E.D. Virginia, Norfolk Division
Plaintiffs: Jeffrey A. Breit, Esquire, Michael F. Imprevento,
Esquire, Virginia Beach, VA; Colleen A. Clark, Esquire,
Defendants: Matthew B. Kirsner, Esquire, Edward J. Longosz,
II, Esquire, Eckert Seamans Cherin & Mellott, LLC, Richmond,
VA; Russell C. Brown, Esquire, Henderson, TX.
Beach Smith, Chief United States District Judge.
September 29, 2015, the court issued a Memorandum Opinion and
Order denying the Defendants' Motion for Judgment on the
Pleadings (the " September 29 Opinion" ). ECF No.
43. The Defendants now seek reconsideration of the September
29 Opinion and ask that the court enter judgment on the
pleadings in their favor. ECF No. 45. For the reasons set
forth herein, the Defendants' Motion for Reconsideration
pending before the court is the Plaintiffs' Motion for
Leave to File Amended Complaint. ECF No. 49. The Defendants
oppose this Motion primarily because they argue that the
court should grant judgment on the pleadings in their favor.
Because the court denies the Defendants' Motion for
Reconsideration, and for the reasons stated herein, the
Plaintiff's Motion for Leave to File Amended Complaint is
DEFENDANTS' MOTION FOR RECONSIDERATION
Federal Rule of Civil Procedure 54(b), " a district
court retains the power to reconsider and modify its
interlocutory judgments . . . at any time prior to final
judgment when such is warranted." Am. Canoe
Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15
(4th Cir. 2003). The resolution of motions to reconsider
pursuant to Rule 54(b) is " committed to the discretion
of the district court," which may be exercised as
justice requires. Id. at 515 (citing Moses H.
Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 12, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)).
the courts generally do not depart from a prior interlocutory
ruling unless " (1) a subsequent trial produces
substantially different evidence, (2) controlling authority
has since made a contrary decision of law applicable to the
issue, or (3) the prior decision was clearly erroneous and
would work manifest injustice." Am. Canoe Ass'n, 326
F.3d at 515 (quoting Sejman v. Warner-Lambert Co.,
Inc., 845 F.2d 66, 69 (4th Cir. 1988)); see TomTom,
Inc. v. AOT Sys. GmbH, 17 F.Supp.3d 545, 546 (E.D. Va.
2014); Al Shimari v. CACI Int'l, Inc., 933
F.Supp.2d 793, 798 (E.D. Va. 2013); Netscape Commc'ns
Corp. v. ValueClick, Inc., 704 F.Supp.2d 544, 546 (E.D.
Va. 2010); McAfee v. Boczar, No. 3:11cv646, 2012 WL
2505263, at *2 (E.D. Va. June 28, 2012). Moreover, " the
court should not reevaluate the basis upon which it made a
prior ruling, if the moving party merely seeks to reargue a
previous claim." United States v. Smithfield Foods,
Inc., 969 F.Supp. 975, 977 (E.D. Va. 1997) (citing
Glenn v. Inland Container Corp., 1992 WL 521517, at
*1 (E.D. Va. May 13, 1992), aff'd, 991 F.2d 789 (4th Cir.
a significant change in the law or the facts since the
original submission to the court, granting a motion for
reconsideration is only appropriate where, for example, the
court " has patently misunderstood a party, or has made
a decision outside the adversarial issues presented to the
Court by the parties, or has made an error not of reasoning
but of apprehension." Smithfield
Foods, 969 F.Supp. at 977 (quoting Above
the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D.
99, 101 (E.D. Va. 1983)). " Such problems 'rarely
arise and the motion to reconsider should be equally
rare.'" TomTom, Inc., 17 F.Supp.3d at 546 (quoting
Above the Belt, 99 F.R.D. at 101).
Defendants advance several arguments in support of their
Motion, including: (1) statutes of limitations in Virginia
" are to be strictly enforced, and that 'any doubt
must be resolved in favor of enforcement of the
statute'" ; (2) the Plaintiffs knew they were
injured at the time of the accident and therefore the
Defendants' misrepresentations were merely "
favorable evidence" ; and (3) the Defendants' "
omission[s]" to the Federal Highway Administration
(" FHWA" ) are not, as a matter of law, "
affirmative act[s]" that can toll the statute of
limitations. Mem. Supp. at 2-3, ECF No. 46. These arguments
are the same as those presented in the Defendants'
briefing in support of their Motion for Judgment on the
Pleadings. See Mem. Supp. of Mot. J. Pleadings at 4-7, ECF
No. 29; Reply to Mot. J. Pleadings at 2-6, ECF No. 41. The
court carefully considered all of these arguments in the
September 29 Order, and will not now " rethink what [it
has] already thought through." TomTom, Inc., 17
F.Supp.3d at 546 (quoting Above the Belt, 99 F.R.D.
same holds true for the Defendants' argument, made in
their Reply brief, that the Plaintiffs' claims are barred
by the Texas statute of limitations. Reply at 9-10, ECF No.
52. The Defendants did not raise this in their Memorandum in
Support of the instant Motion, nor did they address the issue
in more than a cursory fashion in the briefing for their
Motion for Judgment on the Pleadings. In any event, the court
has already addressed the issue in the September 29 Order, at
15-17, and the Defendants have offered no legitimate grounds
to reconsider it.
argument the Defendants now advance that they did not present
in their earlier briefing relates to the court's
statement that " [t]he verdict of the jury in the qui
tam case forms the crux of the Plaintiffs' arguments in
opposition to" the Motion for Judgment on the Pleadings.
Sept. 29 Op. at 5. In the instant Motion, the Defendants
argue that the verdict in the qui tam case " contained
no finding that the ET plus end terminal . . . was defective,
unreasonably dangerous, or failed to perform as
intended." Mem. Supp. at 3. The Defendants either
fundamentally misunderstand the ...