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Westgate Resorts, Ltd. v. Sussman

United States District Court, M.D. Florida, Orlando Division

August 15, 2019

WESTGATE RESORTS, LTD. et al., Plaintiffs,
v.
MITCHELL REED SUSSMAN; and MITCHELL REED SUSSMAN & ASSOCIATES, Defendants.

          ORDER

          Roy B. Dalton Jr. United States District Judge.

         Before the Court is Plaintiffs' Motion to Reconsider July 26, 2019 Order and, alternatively, Motion to Certify Issue for Interlocutory Appeal, and, alternatively, Motion to Reopen Discovery, Extend Length of Trial, and Continue Trial. (Doc. 260). Defendants responded. (Doc. 265.) The Motion is denied.

         I. Background

         After the Court ruled on the parties' cross-motions for summary judgment (Doc. 230), the parties appeared for the pre-trial conference on June 19, 2019. (Docs. 242, 262.) The Court expressed serious misgivings about Plaintiffs' ability to prove up damages for their tortious interference claim at trial, and Plaintiffs responded they intended to use statistical evidence to bolster circumstantial evidence to prove this up. The Court then continued trial until the September 2019 term so Plaintiffs could brief “the admissibility of statistical evidence to support causation as it relates to the damages element of a tortious interference with contractual relations claim.” (Doc. 241, p. 3.) The Court also directed Plaintiffs to identify the statistician they intended to use. (Id. at 1-3.)

         Plaintiffs responded that they have no statistician or traditional statistical analysis but would offer the expert opinion of Steve Wolf, an accountant who computed Plaintiffs' losses from business records from the time owners stopped paying. (Doc. 244.) Plaintiffs already stated that Mr. Wolf would not testify on causation. (Doc. 232, p. 6.) Plaintiffs then submitted their brief stating, in relevant part, they seek to recover damages for 175 owners who stopped payments after a letter of representation was sent. (Doc. 245, pp. 5- 7.) They will prove up damages (and causation for the resignation and deed to associate owners) by coupling testimony from Mr. Sussman and five exemplar owners with “circumstantial” evidence of when the 175 owners stopped paying according to Plaintiffs' business records. (Id. at 5-15.)

         The Court then ruled on Plaintiffs' proposed method of proving up causation as it relates to the damages element of their tortious interference claim. (Doc. 254 (“July 26 Order”).) For the remaining group of owners-those who stopped paying and received a deed back-the Court found Plaintiffs' proposed evidence insufficient to bridge the causation gap for the remaining damages element. (See Id. at 4-7.) This was after the Court provided Plaintiffs the opportunity to demonstrate how statistical evidence-by nature circumstantial-could prove up the damages element, and Plaintiffs said they had no such evidence. (See id.)

         Plaintiffs now seek reconsideration of the Court's ruling, or certification for interlocutory appeal, or to reopen discovery so they may depose all owners. (Doc. 260). With Defendants' response (Doc. 265), the matter is ripe.

         II. Discussion

         A. Motion for Reconsideration

         Plaintiffs seek reconsideration on the basis their circumstantial evidence suffices to prove up damages on the tortious interference claim and requiring owners to testify directly is contrary to law. (Doc. 260, pp. 1-13.) They contend the Court wholesale rejects the premise that tortious interference claims can be proved by circumstantial evidence and point to cases where circumstantial evidence was presented and accepted for tortious interference claims. (See id.) Plaintiffs are wrong.

         Reconsideration under Rule 59(e) is appropriate on the basis of: (1) an intervening change in controlling law; (2) newly discovered evidence; or (3) clear error or manifest injustice. See Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994) (noting that courts have generally granted such relief in those three circumstances). Rule 60(b) also allows a party to request reconsideration on certain grounds. See Fed. R. Civ. P. 60(b)(1)-(6). “The Court's reconsideration of a previous order is an extraordinary remedy, to be employed sparingly.” Mannings v. Sch. Bd. of Hillsborough Cty., 149 F.R.D. 235, 235 (M.D. Fla. 1993) (citation omitted). “[T]he decision to grant such relief is committed to the sound discretion of the district judge . . . .” Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993) (citations omitted).

         Here, Plaintiffs are attempting to collect damages from 175 owners' nonpayments (originally 418). This is 175 separate claims of tortious interference with contractual relations at the same time. That means 175 contracts, 175 owners, 175 timeshares, and 175 sets of circumstances surrounding each owner's nonpayment. For this, Plaintiffs offer testimony from five owners and Mr. Sussman, admitted facts, and dates the owners stopped paying relative to when Plaintiffs received a letter of representation. (Doc. 260, pp. 7-8.) And for this case, that's not enough. (Doc. 254.) This is not a run-of-the-mill tortious interference case, like the ones Plaintiffs rely on, where a discrete set of circumstances surrounds the breach of one contract and there's enough evidence of the parties' relationships to allow circumstantial evidence to carry the day. See Advantor Sys. Corp. v. DRS Tech. Servs., Inc., 678 Fed.Appx. 839, 848 (11th Cir. 2017) (non-compete);Slip-N-Slide Records, Inc. v. TVT Records, LLC, No. 05-21113-CIV, 2007 WL 3232274, at *6-8 (S.D. Fla. Oct. 31, 2007) (distribution contract); Marlite, Inc. v. Eckenrod, No. 09-22607-CIV, 2011 WL 39130, at *9-14 (S.D. Fla. Jan. 5, 2011) (non-compete). So, yeah, as the Court said before, those cases are inapposite to this large-scale tortious interference case, where the exact evidence missing is the circumstances surrounding these 175 owners' nonpayments.

         What's more, Plaintiffs' citation of Southwest Stainless, LP v. Sappington, 582 F.3d 1176 (10th Cir. 2009), to support their argument that the Court is wrong, actually supports the July 26 Order. There, the U.S. Court of Appeals for the Tenth Circuit affirmed the district court's drawing of distinctions in its damages award on the tortious interference with contract claim based on a non-compete. Id. at 1184-86. As the district court put it, “[The plaintiffs] want me to infer that all the damages from the breach are all the profits that Rolled Alloys made from the Tulsa customers since these gentlemen joined Rolled Alloys. And I think I would have to make a leap of faith there.” Id. at 1184. Sound familiar? So the district court didn't award damages where it was “‘speculative and contingent' to infer that Metals would have won all of the business of Rolled Alloys' Tulsa-area customers but for Sappington and Emmer breaching the Noncompeteition agreements, ” but did award damages where “the evidence showed that their breaches led Metals to lose the individual Hughes Anderson and Cust-o-Fab orders.” Id. For those specific orders, there was “ample evidence, ” including circumstantial, to support damages. Id. The Tenth Circuit upheld the district court's discriminate approach that refused to lump together all damages without supporting evidence. See id.

         Here, as the July 26 Order explained, since Plaintiffs missed the boat on establishing causation for the 175 outstanding owners by presenting statistical information, and their remaining evidence doesn't speak to these owners' circumstances surrounding their nonpayments, all that's left to prove up their claim is direct evidence from the owners. (Doc. 254.) We're at this point because of how Plaintiffs pled, approached, and litigated this case. Their strategy. Not the Court going rogue and not following the law, as Plaintiffs suggest.[1] The July 26 Order is absolutely consistent with the law on ...


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