United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE
matter comes before the court on various motions filed by
declaratory judgment action (2:13-cv-03035-DCN) defendant and
bad faith action (2:14-cv-03272-DCN) plaintiff George
Giannaras, as Guardian for Emmanuel Kehagias
(“Kehagias”), pursuant to Federal Rule of Civil
Procedure 59(e). Specifically, Kehagias filed the following
three motions: (1) a motion to alter and/or amend the
court's order denying Kehagias's motion for summary
judgment and granting Founders Insurance Company's
(“Founders”) motion for summary judgment, ECF No.
221, thereby holding that Founders is not required to provide
coverage under the policy; (2) a motion to alter or amend the
court's order granting Brown & Brown, Inc.'s
(“Brown”) motion for summary judgment and
granting Hull & Company, Inc.'s (“Hull”)
motion for summary judgment, ECF No. 222; and (3) a motion to
alter or amend the court's order granting Founders's
motion for summary judgment in the bad faith action, ECF No.
224. The court will address each motion in this consolidated
order in turn.
facts underlying this dispute have been briefed and discussed
by this court ad nauseam. In sum, the parties filed five
separate motions for summary judgment and created a record
well over 1, 000 pages. Kehagias briefed the underlying
issues numerous times, submitting nineteen exhibits with its
motion for summary judgment and seventeen exhibits with its
opposition to Founders's motion for summary judgment. The
court heard oral arguments on the motions during the course
of over two hours on December 14, 2015. Thereafter, the court
issued five separate orders, totaling almost 100 pages.
Needless to say, the parties and the court have thoughtfully
considered these issues.
Fourth Circuit has recognized three grounds for amending an
earlier judgment under Federal Rule of Civil Procedure 59(e):
(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. Pac. Ins. Co. v. Am. Nat. Fire Ins. Co.,
148 F.3d 396, 403 (4th Cir. 1998). A Rule 59(e) motion
“may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised
prior to the entry of judgment.” Exxon Shipping Co.
v. Baker, 554 U.S. 471, 486 n.5 (2008) (internal
quotation marks omitted). Further, “mere disagreement
[with a district court's ruling] does not support a Rule
59(e) motion.” Hutchinson v. Staton, 994 F.2d
1076, 1082 (4th Cir. 1993). “In general reconsideration
of a judgment after its entry is an extraordinary remedy
which should be used sparingly.” Pac. Ins.
Co., 148 F.3d at 403 (citation and internal quotation
marks omitted). A motion for reconsideration “is not a
license for a losing party's attorney to get a second
bite at the apple.” Bey v. Shapiro Brown & Alt,
LLP, 997 F.Supp.2d 310, 321 (D. Md. 2014) (citing
Shields v. Shetler, 120 F.R.D. 123, 125-26 (D. Colo.
three motions to alter or amend, Kehagias argues that the
court must reconsider its prior orders to correct a clear
error of law or prevent manifest injustice. However,
Kehagias's motions each attempt to relitigate the issues.
Motion to Alter or Amend the Court's Ruling in ECF No.
8, 2016, the court entered an order granting Founders's
motion for summary judgment, ECF No. 159, and denying
Kehagias's motion for partial summary judgment, ECF No.
155. In doing so, the court held that, under the unambiguous
notice provisions of the general liability and liquor
liability policies issued by Founders to Richard Ruth's
Bar & Grill, LLC, Richard Ruth, Sr. (“Mr.
Ruth”), and Jane Ruth (“Ms. Ruth”)
(collectively “the Ruths”), the Ruths failed to
provide proper notice of Kehagias's underlying personal
injury lawsuit. The court further held that the Ruths'
failure to provide notice as required under the policy caused
Founders substantial prejudice. Therefore, the court held
that the Ruths' conduct obviated Founders's
contractual duty to provide coverage.
motion, Kehagias makes the following arguments: (1) Founders
waived the notice requirements in the Policy; (2) Cherie
Dumez (“Dumez”) is Founders's agent for
purposes of notice; (3) Founders failed to establish
prejudice as a matter of law; and (4) the court's order
creates a manifest injustice by holding that Founders
suffered substantial prejudice because the court failed to
consider evidence. First and foremost, Kehagias's motion
is a thinly disguised attempt to relitigate the issues
previously and extensively briefed, argued, and addressed and
decided by the court. Kehagias does not provide new evidence
or controlling law but simply argues that the court got it
wrong. Nevertheless, the court will address Kehagias's
first argues that Founders waived the notice provisions of
the Policy because Ms. Ruth forwarded previous claims to Ms.
Dumez, who would thereafter forward the claim to Hull, who
would, in turn, forward the claim to Founders. Kehagias
contends that he set forth his waiver and estoppel arguments
in his response to Founders's motion, ECF No. 179, and
during the December 14, 2015 hearing. Notably, the words
“waiver” and “estoppel” cannot be
found in Kehagias's response. ECF No. 179. Similarly, the
words “waiver” and “estoppel” were
never uttered by Kehagias's counsel during the December
14, 2015 hearing. Although Kehagias did outline the
“course of conduct” among the parties in handling
prior claims, Kehagias did not argue that Founders waived the
notice provisions of the Policy nor did he present any case
law to support such an argument. Rather, the course of
conduct argument was presented to the court regarding the
assumption of a duty under the Second Restatement of Torts.
See ECF No. 222 at 6-8.
court cannot be expected to read Kehagias's mind by
anticipating and addressing all conceivable arguments
potentially implicated in a record well over 1, 000 pages but
not presented to the court. Kehagias's waiver and
estoppel arguments ignore the “well-established
principle that arguments raised for the first time in a
motion for reconsideration are generally deemed
waived.” United States v. Foreman, 369 F.3d
776, 797 (4th Cir. 2004); see, e.g., Holland v.
Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir.
1999) (stating that an issue first presented in a motion
pursuant to Fed.R.Civ.P. 59(e) “is not preserved for
appellate review unless the district court exercises its
discretion to excuse the party's lack of timeliness and
consider[s] the issue”); Mungo v. Taylor, 355
F.3d 969, 978 (7th Cir. 2004) (“Arguments raised for
the first time in connection with a motion for
reconsideration, however, are generally deemed to be
waived.”) (citation omitted); DiMarco-Zappa v.
Cabanillas, 238 F.3d 25, 33 (1st Cir. 2001) (“To
the extent that appellants' reconsideration motion sought
to raise an argument waived at the trial stage, it must
necessarily fail.”); Pittston Co. Ultramar Am. Ltd.
v. Allianz Ins. Co., 124 F.3d 508 n.12 (3d Cir. 1997)
(declining to consider on appeal issue raised for the first
time in a post-judgment motion); CMM Cable Rep, Inc. v.
Ocean Coast Props., Inc., 97 F.3d 1504, 1526 (1st Cir.
1996) (stating that “there is absolutely no
merit” to the argument “that we should find [a
party's] arguments preserved because they were advanced
in its motion for reconsideration”); Manor
Healthcare Corp. v. Guzzo, 894 F.2d 919, 922 n.4 (7th
Cir. 1990) (“Raising an issue in a motion for
reconsideration does not save the issue for appeal.”)
(citations omitted); Am. Meat Inst. v. Pridgeon, 724
F.2d 45, 47 (6th Cir. 1984) (holding issue raised for first
time in motion for reconsideration constituted waiver). As
the Seventh Circuit has recognized, “[m]otions for
reconsideration serve a limited function: to correct manifest
errors of law or fact or ...