United States District Court, M.D. Florida, Orlando Division
WESTGATE RESORTS, LTD. et al., Plaintiffs,
MITCHELL REED SUSSMAN; and MITCHELL REED SUSSMAN & ASSOCIATES, Defendants.
Dalton Jr. United States District Judge.
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.
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.)
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.)
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
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.
Motion for Reconsideration
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.
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
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
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.
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. The July 26 Order is absolutely consistent
with the law on ...