United States District Court, S.D. Florida
SUZANNE M. BEDWELL, individually and as mother and next friend of R.Z.B., a minor and ERNEST D. BEDWELL, individually and as father and next friend of R.Z.B., a minor, Plaintiffs,
BRAZTECH INTERNATIONAL, L.C., Defendant.
ORDER ON PLAINTIFFS’ MOTION FOR
G. TORRES, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Suzanne M. Bedwell’s
(“Ms. Bedwell”) and Ernest D. Bedwell’s
(“Mr. Bedwell”) (collectively,
“Plaintiffs”) motion for reconsideration against
Braztech International L.C. (“Defendant”). [D.E.
72]. Defendant responded to Plaintiffs’ motion on
November 16, 2017 [D.E. 78] to which Plaintiffs did not
reply. Therefore, Plaintiffs’ motion is now ripe for
disposition. After careful consideration of the motion,
response, relevant authority, and for the reasons discussed
below, Plaintiffs’ motion for reconsideration is
filed this action on September 16, 2016. [D.E. 1]. On January
20, 2015, Ms. Bedwell purchased a new Rossi brand .357 Magnum
revolver at an outdoor equipment retailer in Wasilla, Alaska.
On February 21, 2015, Ms. Bedwell, along with her husband and
son, drove to an ammunition store to purchase supplies before
driving to Palmer, Alaska to engage in target practice. In
the process of exiting the motor vehicle in the parking lot,
the revolver inadvertently fell out of its holster, landed on
its hammer, and unintentionally discharged a round of
ammunition that struck Ms. Bedwell’s son in his left
leg. Ms. Bedwell suggests that the accidental discharge of
the firearm was directly and proximately caused by the
firearm’s defective condition, including manufacturing
and/or design defects. As a result of the injury to Ms.
Bedwell’s son, Alaska state troopers were called to the
scene. After hearing Ms. Bedwell’s explanation for the
cause of the accident, the officers took the firearm into
April 14, 2015, the state troopers tested Ms. Bedwell’s
firearm for a potential misfiring defect by tapping the
revolver on the hammer with a small mallet. The test
allegedly resulted in an unintentional misfiring of the
weapon. Plaintiff then purchased three additional Rossi .357
revolvers and a local gunsmith tested them for defects. Out
of the three, one discharged in the same way as Ms.
Bedwell’s revolver when struck on the hammer with a
mallet. As such, Ms. Bedwell filed this class action seeking
to force Defendants to recall, repair, and/or repurchase the
defective .357 revolvers sold to Ms. Bedwell and the
class. In sum, Plaintiffs allege that
Defendant violated the Florida Deceptive and Unfair Trade
Practices Act, committed two counts of negligence (failure to
warn and failure to test), and breached several warranties.
APPLICABLE PRINCIPLES AND LAW
have distilled three major grounds justifying
reconsideration: (1) an intervening change in controlling
law; (2) the availability of new evidence; and (3) the need
to correct clear error or manifest injustice.”
Instituto de Prevision Militar v. Lehman Bros.,
Inc., 485 F.Supp.2d 1340, 1342 (S.D. Fla. 2007) (quoting
Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294, 295
(M.D. Fla. 1993) (internal quotation marks omitted)); see
also Smith v. Ocwen Financial, 488 Fed.Appx.
426, 428 (11th Cir. 2012) (citing Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007) (“The only grounds
for granting a motion for reconsideration are
newly-discovered evidence or manifest errors of law or
fact.”)). Newly raised arguments that should have been
raised in the first instance are not appropriate on a motion
for reconsideration. See Gougler v. Sirius Prods.,
Inc., 370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005). A
motion for reconsideration should also not be used as a
vehicle to reiterate arguments previously made because
“[i]t is an improper use of the motion to reconsider to
ask the Court to rethink what the Court already thought
through- rightly or wrongly.” Z.K. Marine, Inc. v.
M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D. Fla. 1992)
(quoting Above the Belt, Inc. v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983) (internal
formatting omitted)). If a motion merely submits previously
rejected arguments, those motions are generally denied.
See Sierra Equity Grp., Inc. v. White Oak Equity
Partners, LLC, 687 F.Supp.2d 1322, 1324 (S.D. Fla. 2009)
(quoting Rueter v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 440 F.Supp.2d 1256, 1268 (N.D. Ala. 2006)
(noting that “motions to reconsider are not a platform
to relitigate arguments previously considered and
rejected”)). “[However], [a] motion to reconsider
would be 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.” Z.K. Marine, 808 F.Supp. at
1563 (internal formatting and citation omitted).
speaking, motions for reconsideration are considered an
“extraordinary remedy” and subject to a district
court’s substantial discretion. See
Tristar Lodging, Inc. v. Arch Specialty Ins. Co.,
434 F.Supp.2d 1286, 1301 (M.D. Fla. 2006) (quoting
Sussman v. Salem, Saxon & Nielsen, P.A., 153
F.R.D. 689, 694 (M.D. Fla. 1994)); Burger King Corp. v.
Ashland Equities, Inc., 181 F.Supp.2d 1366, 1369-70
(S.D. Fla. 2002) (citing Am. Home Assur. Co. v. Glenn
Estess & Assocs., Inc., 763 F.2d 1237, 1238-39 (11th
Cir. 1985)) (“District court decisions on motions for
reconsideration are reviewed for abuse of discretion, thus
affording the courts with substantial discretion in their
October 25, 2017, we found that Defendant’s reliance on
the doctrine of apportionment of fault was not a
counterclaim, but an affirmative defense. See Fed.
R. Civ. P. 8(c)(1) (including the doctrine of contributory
negligence as an affirmative defense); see also Harper v.
Wilkaitis, 2015 WL 2371565, at *3 (S.D. Miss. May 18,
2015) (“Because apportionment of fault is an
affirmative defense, Wilkaitis will have the burden of
persuading the jury that Brentwood’s premises was
unreasonably dangerous.”) (citing Eckman v.
Moore, 876 So. 2d 975, 989 (Miss. 2004));
Dawes-Ordonez v. Forman, 2009 WL 3273898, at *2
(S.D. Fla. Oct. 9, 2009) (denying motion to strike
apportionment of fault as an affirmative defense);
Millette v. DEK Techs., Inc., 2009 WL 3242010, at *6
(S.D. Fla. Oct. 6, 2009) (“Although Nadeau does not use
the phrase ‘apportionment of fault,’ the Court
construes this affirmative defense as such.”).
found that apportionment of fault was not an affirmative
defense because counterclaims – by their very
definition – are materially different. “An
affirmative defense does not identify a defect in a
plaintiff's prima facie case. For example,
responding that plaintiff's complaint fails to state a
claim upon which relief may be granted-the standard for
dismissal under Rule 12(b)(6)-or that defendants did not owe
plaintiff a duty does not raise an affirmative
defense.” F.D.I.C. v. Stovall, 2014 WL
8251465, at *2 (N.D. Ga. Oct. 2, 2014) (citing In re
Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir.
2010) (“A defense which points out a defect in the
plaintiff's prima facie case is not an affirmative
defense.”). Instead, “an affirmative defense is
something that, if proven, will reduce or eliminate a
plaintiff's recovery even if the plaintiff established a
prima facie case.” Stovall, 2014 WL
8251465, at *2 (citing Roberge v. Hannah Marine
Corp., 124 F.3d 199, 199 (6th Cir. 1997) (“An
affirmative defense ... does not negate the elements of the
plaintiff's claim, but instead precludes liability even
if all of the elements of the plaintiff's claim are
of fault does not give rise to an independent cause of action
or a right to payment. It merely seeks to reduce any damages
resulting from the injuries sustained to Ms. Bedwell’s
son. See Inlet Condo. Ass’n Inc. v. Childress
Duffy, Ltd., Inc., 2013 WL 11320208, at *1 (S.D. Fla.
May 21, 2013) (“[T]he proper vehicle for Inlet’s
challenges to Childress’ affirmative defenses is a
motion to strike pursuant to Fed. R. Civ. P. 12(f) rather
than a motion to dismiss pursuant to Fed. R. Civ. P.
12(b).”). Because Defendant’s counterclaim was
actually an affirmative defense, we construed
Plaintiffs’ motion to dismiss as a motion to strike. We
subsequently denied Plaintiffs’ motion to strike
because Defendants proffered sufficient facts to give
Plaintiffs fair notice of the affirmative defense being
asserted and how it applies to the facts of this case.
See Castillo v. Roche Labs. Inc., 2010 WL 3027726,
at *4 (S.D. Fla. Aug. 2, 2010) (striking the affirmative
defense that a party failed to mitigate damages because it
lacked factual particularity) (citing Barnes v. AT &
T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d
1167, 1171–72 (N.D. Cal. 2010) (merely alleging that
the affirmative defense exists is not sufficient)).
argue that the Court’s prior Order re-designating
Defendants’ counterclaim as an affirmative defense has
the unintended effect of imputing any alleged negligence of
Mr. and Mrs. Bedwell onto their minor son, who is a shooting
victim and wholly without fault. In other words, Plaintiffs
believe that apportionment of fault will allow Defendant to
impute any alleged negligence onto a minor child – that
may ultimately reduce the minor’s recovery. As such,
Plaintiffs request that the Court consider entering an Order
striking Defendant’s affirmative defense or otherwise
limit apportionment of fault solely to Mr. and Mrs. Bedwell.
considering all the arguments presented, we find that there
is no persuasive reason to grant the relief Plaintiffs seek.
While Plaintiffs suggest that the re-designation of
Defendant’s counterclaim as an affirmative defense has
the unintended consequence of holding an injured minor
responsible for his parent’s negligence, Plaintiffs
never made this argument with respect to Defendant’s
“counterclaim.” For instance, Plaintiffs have not
adequately demonstrated why the “counterclaim”
did not previously suffer from the same problem. And
Plaintiffs have also not explained why this argument could
not have been raised earlier. Therefore, Plaintiffs’
motion fails at the outset because district courts in the
Eleventh Circuit have repeatedly held that
“[a]dditional facts and arguments that should have been
raised in the first instance are not appropriate grounds for
a motion for ...