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General Property Construction Co. v. Empire Office, Inc.

United States District Court, S.D. Florida

August 23, 2019

General Property Construction Co., Plaintiff,
Empire Office, Inc., Defendant.



         Before the Court is a motion for clarification, reconsideration, and related relief as to opinion order dropping Erik R. Dreke (the “Motion, ” ECF No. 71) filed by the Defendant/Counter-Plaintiff Empire Office, Inc. (“Empire”). Having considered the parties' submissions, all accompanying exhibits, the record in this case and the applicable law, the Court denies the Motion (ECF No. 71) as described below.

         1. Background

         This action arises from a contract dispute relating to a construction project in Miami (the “Project”). Empire is a subcontractor on the Project and entered a sub-subcontract with Plaintiff/Counter-Defendant General Property Construction Company (“GPCC”) to complete certain work on the Project. (ECF No. 1-4 at ¶¶ 7, 8.) Erik R. Dreke (“Dreke”), allegedly, is “the state certified general contractor and licenseholder that qualifies” GPCC to perform construction work in Florida. (ECF No. 71-1 at ¶ 43.)

         Soon after the parties entered that agreement, GPCC sued Empire in Florida state court for breach of contract. (ECF No. 1-4 at ¶¶ 7, 8.) Empire removed the action to this Court based on federal diversity jurisdiction. (ECF No. 1.) Once in federal court, Empire answered the complaint and filed five counterclaims against GPCC and Dreke, as a “joined party under Rule 19(a).” (ECF No. 6.) Of the five claims originally asserted by Empire, three were brought as counterclaims against GPCC only (two counts for breach of contract and one count for common law negligence), and two were asserted solely against Dreke (one count for fraud in the inducement and one count for negligence).

         Dreke then filed a motion to drop both claims brought against him, arguing that Empire improperly joined him as a party to this suit. (ECF No. 10.) Specifically, Dreke argued that Rule 13(h), Fed. R. Civ. P., does not authorize a defendant to assert a counterclaim solely against a third-party. In the alternative, Dreke argued that Empire failed to state a claim for negligence. The Court agreed with Dreke, granted the motion and dropped Dreke from this suit, dismissing without prejudice both claims brought against him. (the “Order, ” ECF No. 67.)

         Empire then filed the Motion, requesting the Court to: (1) clarify its ruling in the Order so as to “join[] Dreke as party to the Negligence Counts (Count III and V) in the counterclaim and finding that Empire satisfied the requirements for permissive joinder of Dreke under Rule 20, ” (ECF No. 71 at pp. 2-4); (2) reconsider the Order and permit the joinder of Dreke based on newly discovered evidence, (id. at pp. 4-8); (3) grant Empire leave to file an amended or supplemental counterclaim asserting a single negligence claim against both GPCC and Dreke, (id. at pp. 8-9); and (4) grant Empire leave “to appeal if appropriate as to the relief sought in the instant motion, ” (id. at p. 10). Empire attached its proposed amended counterclaim to the Motion. (ECF No. 71-1.)

         GPCC opposes the Motion, arguing: (1) that Empire's arguments for clarification and reconsideration inappropriately rehash the same legal arguments raised and rejected in the Order and does not submit new evidence warranting reconsidering, (ECF No. 74 at pp. 2-5); and (2) that the request for leave to file an amended counterclaim should be denied because further amended would be futile, (id. at pp. 5-7). Empire filed a reply brief. (ECF No. 80.)

         2. Legal Standards

         Federal Rule of Civil Procedure 60(b) provides:

[A] court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

         It “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) (Hoeveler, J.).

The 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. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the ...

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