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Whitesell Corp. v. Electrolux Home Products, Inc.

United States District Court, S.D. Georgia, Augusta Division

May 15, 2017




         Presently before the Court is Plaintiff Whitesell Corporation's ("Whitesell") motion for entry of an order reserving this Court's ruling on an award of prejudgment interest on its claims, liquidated and unliquidated, until after the evidence has been presented. Defendants argue that this Court has already ruled upon the issue. The matter has been fully briefed.

         The Court has allowed an interest claim under O.C.G.A. § 7-4-16 on Whitesell's only arguable liquidated damages claim: Count VI, the Failure to Pay Invoices. (See Order of May 28, 2014, Doc. No. 577, at 14-16 (overruling Defendants' objection to the inclusion of an interest claim in Paragraph 199 of the Second Amended Complaint).) With respect to the unliquidated damages claims, however, the Court has disallowed the inclusion of a claim of interest under both O.C.G.A. §7-4-16 (see id.) and O.C.G.A. § 13-6-13 (see Order of May 17, 2016, doc. no. 818) . Whitesell does not take issue with the Court's ruling with respect to O.C.G.A. § 7-4-16; rather, its focus is on its claim for prejudgment interest under O.C.G.A. § 13-6-13 .


         On May 17, 2016, this Court disallowed Whitesell's claim for prejudgment interest under O.C.G.A. § 13-6-13 upon a finding that it was a new claim. (Doc. No. 818, at 4.) By way of further explanation, when Whitesell filed its motion to amend the complaint in January of 2014, the proposed Second Amended Complaint attached thereto included the wordwinterest" in the damage allegation of each substantive cause of action. (See Doc. No. 546, Ex. A.) The Court convened a hearing on March 27, 2014 to address Whitesell's proposed amendment. The only mention of "interest" during the hearing was Whitesell's reference to its claim for 18% interest on a commercial account under O.C.G.A. § 7-4-16 in relation to the count involving Defendants' alleged failure to pay invoices. (Tr. at 33-37, Doc. No. 567.) Then, after the hearing, Whitesell submitted its proposed Second Amended Complaint in compliance with the Court's rulings in the hearing. (See Doc. No. 568.) That submission of April 10, 2014 includes only a claim for "18% interest as permitted by O.C.G.A. § 7-4-16, " which is added to the damage allegation of each count. (See id.) Defendants objected to this claim of interest. (Doc. No. 569.) In response thereto, Whitesell points out that it had made a claim for interest in its proposed Second Amended Complaint (filed in January 2014), had noted the claim again in the hearing without objection from Defendants during the March 27th hearing, and had "cited the statute pursuant to which interest would be available" in the April 10th submission of its proposed Second Amended Complaint. (Doc. No. 573, at 18.) As stated, any reference to interest in its proposed Second Amended Complaint of April 10, 2014 cites only to O.C.G.A. § 7-4-16. In ruling upon Defendants' objections on May 28, 2014, this Court directed Whitesell to strike its claim of interest in all but Paragraph 199, which pertains to the only liquidated damages claim. (Doc. No. 577.) Nevertheless, when Whitesell filed its Second Amended Complaint in conformance with the Court's Order of May 28, 2014, the damages allegation in each cause of action includes the word "interest" where it did not appear in its April 10, 2014 submission. (See PL's Second Am. Compl., Doc. No. 578.)

         This modification went unnoticed by the Court and Defendants until Whitesell filed a motion to "interlineate" the claim by adding the word "prejudgment" before the word "interest." (Doc. No. 8 01.) Once the issue was placed squarely before it, the Court denied Whitesell's motion to amend the complaint to include a claim for prejudgment interest under O.C.G.A. § 13-6-13 because it did not appear in Whitesell's April 10, 2014 submission and would thus constitute a new claim 71/2 years after the First Amended Complaint. (Order of May 17, 2016, Doc. No. 818.) The Court further concluded that the inclusion of a prejudgment interest claim would be futile in any event. (See id.)

         Legal Standard

         Whitesell seeks to have this Court "reserve ruling" on the issue of prejudgment interest. Because the Court, in its Order of May 17, 2016, has already ruled on this issue in denying Whitesell's motion for leave to amend the Second Amended Complaint to include a claim for prejudgment interest under O.C.G.A. § 13-6-13, the Court views Whitesell's current motion as a motion for reconsideration of that ruling.

         Reconsideration, however, is appropriate only if the movant demonstrates: (1) an intervening change of law; (2) the availability of new evidence; or (3) the need to correct a clear error of law or prevent manifest injustice. E.g., Center for Biological Diversity v. Hamilton, 385 F.Supp.2d 1330, 1337 (N.D.Ga. 2005); Estate of Pidcock v. Sunnvland America, Inc., 726 F.Supp. 1322, 1333 (S.D. Ga. 1989). In this case, Whitesell attempts to show that reconsideration is necessary to correct a clear error of law or to prevent manifest injustice.

         Legal Analysis

         Before delving into the merits of Whitesell's reconsideration arguments, the Court notes that the motion is rather late. Whitesell only mentioned the possibility of filing a motion for reconsideration at a hearing on December 5, 2016, over 6 months after the Court's ruling in its Order of May 17, 2016. At that time counsel stated that he did awterrible job in presenting the issue" to the Court and though he did not "disagree with anything" in the Court's prior Order, he believed there was case law that would allow the award of prejudgment interest on an unliquidated damages claim in the Court's discretion. (Tr. at 72, Doc. No. 875.) Counsel cited to Holloway v. State Farm Fire & Cas. Co., 537 S.E.2d 121 (Ga.App. 2000). (Id. at 73-74.) The actual motion was not filed for another 2% months. In the motion, Whitesell, as promised, cites Holloway for the proposition that the Court has discretion to award prejudgment interest on unliquidated damages claims. (Doc. No. 880.) Aside from this argument, Whitesell sets forth no other basis for reconsideration of this Court's ruling of May 17, 2016.[1] As a basis for reconsideration, the Holloway case is rather unremarkable and does not warrant a reversal of this Court's decision.[2] Then, having the benefit of Defendants' responsive pleading, Whitesell filed a ten-page reply brief urging the Court's reconsideration, the merits of which will be addressed below. The Court is constrained to note here, however, that Whitesell's motion for reconsideration could be denied for the delay in filing and in presenting the issues to the Court. See Pattee v. Ga. Ports Auth., 477 F.Supp.2d 1272, 1275 (S.D. Ga. 2007) (MT]he Court will viewxnew' arguments [in reply briefs] suspiciously [and] remain mindful of sandbagging.") In fact, by its own admission, explicitly at the December hearing and implicitly in the sparsity of its initial motion, Whitesell could not find any basis for reversal of this Court's prior order, i.e., there was no argument of clear error or manifest injustice, until it filed its reply brief.

         Turning now to the reply brief, Whitesell argues that this Court overlooked the case of Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280 (11th Cir. 2004), in finding that prejudgment interest cannot be awarded on Whitesell's unliquidated claims. Alphamed does not change this Court's analysis, however.

         Whitesell does not dispute that prejudgment interest under O.C.G.A. § 13-6-13 can only be awarded if the amount of damages is ascertainable at the time of the contractual breach. This was certainly the case in Alphamed, 367 F.3d 1280. In that case, the district court directed the jury to award a sum certain upon the jury's determination that the defendant breached its agreement to purchase a contractually agreed upon quantity of ambulatory infusion pumps from the plaintiff, Alphamed. Id. at 1284. The district court arrived at the figure by multiplying the quantity and price terms of the pumps as set forth in the parties' contract. Id. The jury also determined that Alphamed was entitled to prejudgment interest in a special interrogatory. Upon the verdict, the district court awarded the sum certain in damages and awarded | prejudgment interest on that amount at the statutory rate. Id. On appeal, the defendant complained that the district court did not permit the jury to calculate the prejudgment interest award. The Eleventh Circuit agreed that the jury should have calculated the amount but found the error to be harmless since the jury would have arrived at the same exact figure. Id. at 1287.

         In the Alphamed case, the parties apparently disputed whether Alphamed was capable of producing the pumps; a similar allegation has been raised against Whitesell in the case at bar. Also, the Alphamed district court had to calculate Alphamed's lost profits to arrive at a damages figure; a similar task may befall the finder of fact in the case at bar. Whitesell therefore argues that the case at bar is analogous to Alphamed, and because ...

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