United States District Court, M.D. Florida, Orlando Division
Gregory A. presnell Judge
matter comes before the Court without a hearing on the Motion
for Reconsideration (Doc. 76) filed by the Defendant, Sergey
Pastukov (“Pastukov”), and the response in
opposition (Doc. 82) filed by the Plaintiff, Atlantic
Specialty Insurance Company (“Atlantic”).
Pastukov seeks reconsideration of this Court's order
(Doc. 71) of January 26, 2018, denying his motion for summary
judgment (henceforth, the “Order”).
federal rules do not specifically provide for the filing of a
“motion for reconsideration.” Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir. 1991),
cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51
(1992). However, it is widely recognized that Rule 59(e)
encompasses motions for reconsideration. 11 Charles Alan
Wright, et al., Federal Practice & Procedure
§ 2810.1 (3d ed.). In the interests of finality and
conservation of scarce judicial resources, reconsideration is
an extraordinary remedy, to be employed sparingly. U.S.
v. Bailey, 288 F.Supp.2d 1261, 1267 (M.D. Fla. 2003). A
busy district court need not allow itself to be imposed upon
by the presentation of theories seriatim. Union Planters
Nat. Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir.
1982). The decision to alter or amend a judgment is committed
to the sound discretion of the district court. O'Neal
v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992).
Appropriate circumstances for reconsideration include
situations in which the Court has obviously misapprehended a
party's position, the facts, or mistakenly has decided an
issue not presented for determination. Anderson v. United
Auto Workers, 738 F.Supp. 441, 442 (D. Kan. 1990).
speaking, the authorities recognize four basic grounds upon
which a Rule 59(e) motion may be granted.
First, the movant may demonstrate that the motion is
necessary to correct manifest errors of law or fact upon
which the judgment is based. Second, the motion may be
granted so that the moving party may present newly discovered
or previously unavailable evidence. Third, the motion will be
granted if necessary to prevent manifest injustice. Serious
misconduct of counsel may justify relief under this theory.
Fourth, a Rule 59(e) motion may be justified by an
intervening change in controlling law.
Charles Alan Wright, et al., Federal Practice &
Procedure § 2810.1 (3d ed.).
cannot use a Rule 59(e) motion to relitigate old matters,
Michael Linet, Inc. v. Village of Wellington, Fla.,
408 F.3d 757, 763 (11th Cir. 2005), or to raise new legal
arguments which could and should have been made during the
pendency of the underlying motion, Sanderlin v. Seminole
Tribe of Florida, 243 F.3d 1282, 1292 (11th Cir. 2001).
Where a party attempts to introduce previously unsubmitted
evidence in support of a motion to reconsider, the party must
make some showing that the evidence previously was
unavailable. Mays v. U.S. Postal Service, 122 F.3d
43, 46 (11th Cir. 1997) (citing, inter alia, Engelhard
Indus. v. Research Instrumental Corp., 324 F.2d 347, 352
(9th Cir. 1963), cert. denied, 377 U.S. 923, 84 S.Ct. 1220,
12 L.Ed.2d 215 (1964)). To avoid repetitive arguments on
issues already considered fully by the court, rules governing
reargument are narrowly construed and strictly applied.
St. Paul Fire & Marine Ins. Co. v. Heath Fielding
Ins. Broking Ltd., 976 F.Supp. 198 (S.D. N.Y. 1996).
presents four main arguments why the Court should reconsider
its order denying his motion for summary judgment. Each is
considered in turn below. Familiarity with the underlying
order is assumed.
first argues that the Court erred by considering extrinsic
evidence before making a finding as to whether the
Certificate of Insurance (“COI”) was ambiguous
regarding his eligibility for coverage as a “Contract
Driver, ” as that term was defined in the COI.
Initially, Pastukov argued that the COI was ambiguous because
the first page showed him as having coverage while the
eligibility requirements found elsewhere in the COI were such
that National Shipping could not qualify as an Independent
Owner-Operator, which precluded Pastukov from being able to
qualify as a Contract Driver.
it is not entirely clear from Pastukov's latest motion,
it appears that the “extrinsic evidence” that was
allegedly (and improperly) considered was Pastukov's
application, which the Court referred to in resolving the
eligibility issue. Assuming this to be the case,
Pastukov's argument fails. As noted in the order, the
eligibility language in the COI was not ambiguous, despite
the fact that Pastukov was listed as covered on the first
page of that document. Though the Court referred to it, the
application did not affect the ambiguity determination.
Pastukov argues that, contrary to the Court's
determination in the order, the policy requirements as to his
eligibility are provisions of forfeiture, which can be waived
by the insurer, rather than provisions of coverage, which
cannot. He notes, correctly, that the trucking accident that
Pastukov was involved in is the type of risk covered by the
policy. However, this does not resolve the issue. The problem
for Pastukov is that he is not the type of truck driver who
can be covered by this policy. The issue is therefore one of
coverage, which cannot be waived by the insurer.
eligibility requirements are also the subject of
Pastukov's third argument, which is that in noting that
Pastukov's application incorrectly described him as
meeting the requirements to be a contract driver, the Court
improperly imputed knowledge to him of those requirements and
relieved Atlantic of its duty to inform him of same - meaning
Atlantic cannot deny him ...