United States District Court, D. Nebraska
JUDDS BROTHERS CONSTRUCTION CO., a Nebraska Corporation; Plaintiff,
MERSINO DEWATERING, INC., a Michigan Corporation; Defendant.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion for Reconsideration,
ECF No. 92, filed by Defendant Mersino Dewatering, Inc.
(Mersino). For the reasons stated below, the motion will be
2015, the City of Council Bluffs, Iowa, hired Plaintiff Judds
Brothers Construction, Co. (Judds), as general contractor on
the Mosquito Creek South Sewer Relocation Project. Judds
sought and received bids from two subcontractors to dewater
the project-Mersino and Griffin Dewatering Corp. (Griffin).
Mersino proposed drilling 33 wells to a depth of 40 feet,
while Griffin proposed drilling 14 wells to a depth of 90
feet. Judds selected Mersino to dewater the Mosquito Creek
Project. Mersino's proposal for the project (First
Proposal), as signed by Judds, stated “the dewatering
system shall sufficiently lower the ground water level below
the sub-grade elevations except where silts, clays, rock or
other impervious material may be encountered” and that
“[i]f additional dewatering systems should be required
or requested of Mersino in excess of that which is quoted
above, additional systems will be provided at additional
costs.” ECF No. 70-3, Page ID 1896-98.
April 28 and 29, 2015, Mersino installed three wells, which
terminated in “gray-ish looking clay” and did not
achieve the anticipated groundwater drawdown. On May 8, 2015,
Mersino submitted a second proposal (Second Proposal),
this time proposing the installation of a well-point system
to aid in dewatering. Judds directed Mersino to install a
test run of 500 feet of well points. When the well-point
system was ineffective, Judds undertook several actions on
its own to attempt to dewater the site, such as installing
sump pumps in a trench, electric pumps in the Mersino wells,
and an additional shallow well.
mid-July of 2015, Judds informed Mersino that it was engaging
Griffin to install three wells at a depth of 90 feet to
dewater the site. Mersino asked for the opportunity to
install deep wells, but Judds refused. The deep wells
installed by Griffin eventually achieved the desired drawdown
and Judds completed the sewer relocation project. Due to
delays in project completion, the City of Council Bluffs
imposed liquidated damages on Judds per the terms of their
brought suit against Mersino in the District Court of Douglas
County, Nebraska, on November 24, 2015. ECF No. 1. Mersino
removed the case to this Court on January 4, 2016. In its
complaint, Judds asserted claims for breach of contract,
negligence, breaches of implied and express warranties of
fitness for a particular purpose, and unjust enrichment.
Id., Page ID 5-14. In its answer, ECF No. 7, Mersino
asserted counter-claims against Judds for breach of contract
and quantum meruit. Id., Page ID 38-39.
February 24, 2017, Mersino moved for summary judgment, ECF
No. 60, in its favor on all claims and counter-claims. On May
26, 2017, the Court entered an order, ECF No. 87, granting
the motion in part, and entering summary judgment in favor of
Mersino on all Judds's claims except breach of contract.
Regarding that claim, the Court held that the undisputed
evidence showed there had been no breach of the express terms
of the First and Second Proposals; but, because Judds
introduced evidence that Mersino may have suggested the
well-point system despite its unlikelihood of success and in
order to prolong billing Judds, the Court allowed the claim
to proceed solely on the grounds that Judds may have breached
its common-law duty to perform the contract with reasonable
care, expedience, and good faith. ECF No. 87, Page ID
3033-36. For this same reason, the Court did not grant
summary judgment on the clause in the agreement prohibiting
damages for delay in Mersino's performance, as such a
clause had been held unenforceable in cases where the delay
resulted from concealment, misrepresentation, fraud, bad
faith, or malicious intent. Id., Page ID 3036.
has moved for reconsideration as to the breach of contract
claim and the no-damages-for-delay clause.
‘motion for reconsideration' is not described in
the Federal Rules of Civil Procedure, but such a motion is
typically construed either as a Rule 59(e) motion to alter or
amend the judgment or as a Rule 60(b) motion for relief from
judgment.” Auto Servs. Co. v. KPMG,
LLP, 537 F.3d 853, 855 (8th Cir. 2008) (citing
Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th
Cir. 1988)). The Eighth Circuit Court of Appeals has stated
that “motions for reconsideration are ‘nothing
more than Rule 60(b) motions when directed at non-final
orders.'” Elder-Keep v. Aksamit, 460 F.3d
979, 985 (8th Cir. 2006) (quoting Anderson v. Raymond
Corp., 340 F.3d 520, 525 (8th Cir. 2003)).
district court opinions have taken issue with
Elder-Keep's holding, citing a district
court's “inherent authority to reconsider
interlocutory orders.” Garrett v. Albright,
No. 4:06-CV-4137-NKL, 2008 WL 268993, at *2 (W.D. Mo. Jan.
30, 2008) (citing 15B Wright and Miller, Federal Practice
and Procedure § 3914.28); see also Lustgraaf v.
Sunset Fin. Servs., Inc., No. 8:08CV335, 2012 WL
5996968, at *2 n.3 (D. Neb. Nov. 28, 2012) (citing
Garrett; Disc. Tobacco Warehouse, Inc. v. Briggs
Tobacco & Specialty Co., Inc., No.
3:09-CV-05078-DGK, 2010 WL 3522476, at *2 (W.D.Mo. Sept.2,
2010)) (recognizing courts' disagreement with
Elder-Keep). Indeed, Federal Rule of Civil Procedure
54(b) states that any order that adjudicates fewer than all
the claims in a pending action “does not end the action
. . . and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties'
rights and liabilities.” Fed.R.Civ.P. 54(b); see
Birge v. Smeall, No. 8:13CV136, 2013 WL 6631653, at *2
(D. Neb. Dec. 17, 2013) (quoting K.C.1986 Ltd. P'ship
v. Reade Mfg., 472 F.3d 1009, 1017 (8th Cir. 2007))
(“District courts have ‘the inherent power to
reconsider and modify an interlocutory order any time prior
to the entry of judgment.'”).
district courts that have criticized Elder-Keep as
too restrictive of a district court's discretion have
noted that a court's interest in judicial economy and
respect for the finality of court decisions “would be
undermined if [a court] were to routinely reconsider its
interlocutory orders.” Disc. Tobacco, 2010 WL
3522476, at *2. These courts have required the moving party
to show “(1) that it did not have a fair opportunity to
argue the matter previously, and (2) that granting the motion
is necessary to correct a significant ...