W4 Farms, Inc. v. Tyson Farms, Inc.

W4 Farms, Inc. v. Tyson Farms, Inc., 2017 NCBC 97.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
SURRY COUNTY 16 CVS 1112

W4 FARMS, INC.; W4 POULTRY
FARMS, LLC; and CHARLES JOEY
WHITE,

Plaintiffs,
ORDER AND OPINION ON
v. DEFENDANTS’ MOTION FOR
RECONSIDERATION
TYSON FARMS, INC. and TYSON
FOODS, INC.,

Defendants.

1. THIS MATTER is before the Court on Defendants Tyson Farms, Inc. and

Tyson Foods, Inc.’s (collectively, the “Defendants”) Motion for Reconsideration of

Defendants’ Partial Motion to Dismiss Plaintiffs’ Second Amended Complaint (the

“Motion”). Having considered the Motion and the briefs in support of and in

opposition to the Motion, the Court DENIES the Motion.

Royster and Royster, PLLC, by Brian A. Royster, and Goldasich &
Associates, LLC, by J. Andrew Fulk, Dennis E. Goldasich, and Justin C.
Owen, for Plaintiffs.

Cranfill Sumner & Hartzog LLP, by F. Marshall Wall and Katherine
Barber-Jones, and Shook, Hardy & Bacon, by Mark C. Tatum, for
Defendants.

Robinson, Judge.

I. PROCEDURAL AND FACTUAL BACKGROUND

2. The Motion requests that the Court reconsider portions of its Order and

Opinion on Defendants’ Partial Motion to Dismiss (the “Opinion”) entered on July 24,
2017. (ECF No. 80.) The Court incorporates herein the procedural and factual

background set forth in Sections II and III of the Opinion and only recites subsequent

procedural and factual background to the extent necessary to resolve the Motion.

3. In the Opinion, the Court granted in part and denied in part Defendants’

partial motion to dismiss (the “Motion to Dismiss”) under Rule 12(b)(6) of the North

Carolina Rules of Civil Procedure (“Rule(s)”). The Court granted the Motion to

Dismiss as to Plaintiffs’ claims for negligent misrepresentation and negligence and

dismissed these claims with prejudice. (Order & Op. ¶ 55.A.) The Court denied the

Motion to Dismiss as to Plaintiffs’ claims for breach of contract, breach of the implied

covenant of good faith and fair dealing, fraud, fraud in the inducement, unfair and

deceptive trade practices (“UDTP”), vicarious liability, and punitive damages.

(Order & Op. ¶ 55.B.)

4. On August 17, 2017, Defendants filed the Motion requesting

reconsideration of portions of the Opinion pursuant to Rules 54(b) and 60(b). (ECF

No. 89.)

5. The Motion has been fully briefed and is now ripe for resolution. Pursuant

to Rule 7.4 of the General Rules of Practice and Procedure for the North Carolina

Business Court, the Court elects to rule on the Motion without a hearing. The Court

first considers the Motion under Rule 60(b) and then under Rule 54(b).
II. RULE 60(b)

6. While the Motion states that it is brought pursuant to Rule 60(b),

Defendants’ briefing and argument on the Motion are limited to subsection (6) of Rule

60(b). Rule 60(b) provides in its entirety as follows:

On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order, or proceeding
for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59(b);

(3) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;

(4) The judgment is void;

(5) The judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated,
or it is no longer equitable that the judgment should have prospective
application; or

(6) Any other reason justifying relief from the operation of the judgment.

N.C. Gen. Stat. § 1A-1, Rule 60(b).

7. To the extent that the Motion seeks reconsideration of the Opinion under

any subsection of Rule 60(b), the Motion must be denied. The Opinion granting in

part and denying in part Defendants’ Rule 12(b)(6) Motion to Dismiss is an

interlocutory order. E.g., Grant v. Miller, 170 N.C. App. 184, 186, 611 S.E.2d 477,

478 (2005). It is well established under North Carolina law that, “[b]y its express

terms, Rule 60(b) only applies to final judgments, orders, or proceedings; it has no

application to interlocutory orders.” Pratt v. Staton, 147 N.C. App. 771, 775, 556
S.E.2d 621, 624 (2001); Sink v. Easter, 288 N.C. 183, 196, 217 S.E.2d 532, 540 (1975)

(“Rule 60(b) . . . has no application to interlocutory judgments, orders, or proceedings

of the trial court. It only applies, by its express terms, to final judgments. In this

context, the prior denial of defendant’s Rule 12(b) motion . . . constituted nothing

more than an interlocutory order.” (citations omitted)); Rupe v. Hucks-Follis, 170 N.C.

App. 188, 191, 611 S.E.2d 867, 869 (2005) (concluding that the trial court had no

authority under Rule 60(b) to grant relief from an interlocutory order denying

defendants’ motion to dismiss); O’Neill v. S. Nat’l Bank, 40 N.C. App. 227, 231, 252

S.E.2d 231, 234 (1979) (“Since the denial of a Rule 12(b)(6) motion to dismiss is not a

final judgment or order, [defendant]’s motion for relief from the [o]rder . . . could not,

as a matter of law, have been proper under Rule 60(b), and the trial court should not

have considered the motion.”).

8. Therefore, the Motion under Rule 60(b) is denied.

III. RULE 54(b)

9. The Motion also requests reconsideration under Rule 54(b). Under Rule

54(b), interlocutory orders are “subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights and liabilities of all the parties.”

N.C. Gen. Stat. § 1A-1, Rule 54(b). “Although the North Carolina courts have not

formulated a standard to guide trial courts in considering a motion to amend an

interlocutory ruling under Rule 54(b), federal case law addressing similarly worded

portions of Federal Rule 54(b) provides useful guidance.” In re Se. Eye Center-

Judgments, 2017 NCBC LEXIS 77, at *9 (N.C. Super. Ct. Aug. 22, 2017). A motion
for reconsideration under Rule 54(b) is within the trial court’s discretion. Akeva

L.L.C. v. Adidas Am., Inc., 385 F. Supp. 2d 559, 565 (M.D.N.C. 2005); Ward v. FSC I,

LLC, 2017 NCBC LEXIS 19, at *6 (N.C. Super. Ct. Mar. 7, 2017). “Most courts have

adhered to a fairly narrow set of grounds on which to reconsider their interlocutory

orders and opinions.” Akeva L.L.C., 385 F. Supp. 2d at 565. These grounds include

“(1) the discovery of new evidence, (2) an intervening development or change in the

controlling law, or (3) the need to correct a clear error or prevent manifest injustice.”

RF Micro Devices, Inc. v. Xiang, 1:12CV967, 2016 U.S. Dist. LEXIS 74550, at *3−4

(M.D.N.C. June 8, 2016). “Such problems rarely arise and the motion to reconsider

should be equally rare.” DirecTV, Inc. v. Hart, 366 F. Supp. 2d 315, 317 (E.D.N.C.

2004) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). “A motion

for reconsideration is not a vehicle to identify facts or legal arguments that could have

been, but were not, raised at the time the relevant motion was pending.” Julianello

v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015). “The limited use of a motion to

reconsider serves to ensure that parties are thorough and accurate in their original

pleadings and arguments presented to the Court. To allow motions to reconsider

offhandedly or routinely would result in an unending motions practice.” Wiseman v.

First Citizens Bank & Tr. Co., 215 F.R.D. 507, 509 (W.D.N.C. 2003).

10. Defendants argue that reconsideration under Rule 54(b) is necessary

because the Opinion was based on clear error, and Defendants request that the Court

reconsider the following issues:
1. Whether the [Broiler Production Contract] is a “contract for goods and
services,” as stated by counsel for Plaintiffs, or a contract for services
only;

2. Whether the [Broiler Production Contract] contains warranties or
representations as to the quality of birds placed by [Defendants] on
Plaintiffs’ farm or the application of the warranty disclaimer. [sic]

3. Whether the parenthetical clause in Paragraph 7 of the [Broiler
Production Contract] . . . modifies both “property” and “product,” or only
“product,” the word immediately preceding the clause; and [sic]

4. Whether Plaintiffs’ Second Amended Complaint is sufficient to rebut
the presumption that the merger clause in the [Broiler Production
Contract] prevents modification to add representations and warranties
concerning the chickens or modify the disclaimer of warranties. [sic]

5. Whether Plaintiffs have alleged any sufficiently specific
representations or a factual basis for a belief concerning bird quality to
meet the pleading standard for fraud claims.

(Mot. Recons. Defs.’ Partial Mot. Dismiss 1−2, ECF No. 89.)

11. As to the first issue, Defendants contend that the Opinion “is in error by

failing to find the [Broiler Production Contract] to be a contract for services only” and

“North Carolina law does not support that the [Broiler Production Contract] is a

contract for goods and services[.]” (Reply Supp. Mot. Recons. Defs.’ Partial Mot.

Dismiss 4, ECF No. 105; Mem. Supp. Mot. Recons. Defs.’ Partial Mot. Dismiss 5−9,

ECF No. 90.) The Opinion, however, did not address whether the Broiler Production

Contract is a contract for goods or services because such a determination was

immaterial to the Court’s resolution of the Motion to Dismiss. Even so, Defendants

have failed to show why reconsideration is necessary or appropriate on this basis.

Defendants argue that the Uniform Commercial Code does not apply, (Mem. Supp. 7,

9); but the Opinion did not construe the Broiler Production Contract as a contract for
the sale of goods—it did not apply the Uniform Commercial Code, N.C. Gen. Stat.

§ 25-1-101, et seq., or cases thereunder to the Broiler Production Contract in

determining whether the allegations were sufficient to state a claim. Therefore, to

the extent that Defendants seek reconsideration of this issue, the Motion must fail.

12. With respect to the second issue, Defendants argue that the Opinion was

based on clear error in failing to conclude that the Broiler Production Contract does

not contain any representations or warranties made by Defendants regarding chicken

quality. (Mem. Supp. 9−11; Reply Supp. 4.) Defendants, however, argued this same

point in depth in support of the Motion to Dismiss. (See, e.g., Mem. Supp. Defs.’

Partial Mot. Dismiss Pls.’ Second Am. Compl. 17, ECF No. 47.2 (“[T]he [Broiler

Production] Contract omits and disclaims any representations as to the type or

quality of the chickens. . . . [T]he [Broiler Production] Contract discloses that there is

no enforceable agreement regarding quality in or outside of the written [Broiler

Production] Contract.”).) “Reconsideration by re-argument is not proper under Rule

54.” Brunson v. N.C. Dep’t of Soc. Servs., No. 5:09-CT-3063-FL, 2011 U.S. Dist.

LEXIS 20469, at *7 (E.D.N.C. Mar. 1, 2011). Having fully considered this point in its

original determination of Defendants’ Motion to Dismiss, the Court declines to

reconsider this issue.

13. Likewise, as to the third issue, Defendants assert that the Opinion was

based on clear error in concluding that the parenthetical in the disclaimer provision

could be interpreted to modify both “property” and “product” and, thus, is ambiguous.

(Mem. Supp. 12−15; Reply Supp. 5.) Defendants argue that “the Court’s reading [of
the parenthetical] is inconsistent with general rules of grammar and punctuation,

and [Defendants] w[ere] not able to supply this analysis prior to the decision because

the issue was not raised until oral argument.” (Mem. Supp. 5.) In support of the

Motion to Dismiss, however, Defendants argued that the Broiler Production Contract

unambiguously disclaims any representations regarding the quality of chickens.

(Mem. Supp. Defs.’ Partial Mot. Dismiss 16−17.) Further, as Defendants correctly

note, during the hearing on the Motion to Dismiss, the Court discussed the

parenthetical with counsel at length. Now, Defendants “essentially attempt[] to

present a better or more compelling argument in favor of [their] position, which courts

routinely hold to be inadequate on a motion for reconsideration.” RF Micro Devices,

Inc., 2016 U.S. Dist. LEXIS 74550, at *5 (quotation marks omitted). “Hindsight being

perfect, any lawyer can construct a new argument to support a position previously

rejected by the court, especially once the court has spelled out its reasoning in an

order.” Potter v. Potter, 199 F.R.D. 550, 553 (D. Md. 2001). Having previously argued

that the Broiler Production Contract unambiguously disclaims any representations

regarding chicken quality, Defendants cannot use a motion for reconsideration to

present further arguments, in light of the Opinion, in support of their position.

Defendants’ argument in this regard is rejected.

14. Turning to the fourth issue set forth in the Motion, Defendants argue that

the Opinion was based on clear error in finding that the allegations of fraud are

sufficient to rebut the presumption, created by the merger clause, that the writing

contains the complete agreement of the parties. (Mem. Supp. 15−20; Reply Supp. 5.)
Defendants state in their brief that, during the hearing on the Motion to Dismiss,

“the Court raised questions regarding the operation of the merger clause, which

[Defendants] did not raise in initial briefing and so did not fully address in [their]

arguments.” (Mem. Supp. 4 (emphasis added).) Although Defendants apparently

overlooked, and thus failed, to address the operation of the merger clause in either of

their briefs on the Motion to Dismiss, the Court inquired of counsel during the

hearing as to whether the breach of contract claims, notwithstanding the existence of

the merger clause, must survive if the fraud in the inducement claim survives.

Contrary to Defendants’ contention, however, the Opinion did not discuss the

implications, if any, of the fraud allegations on the enforceability of the merger clause.

Instead, Defendants attempt to use the Motion to raise a new argument, in light of

the Court’s inquiries, in further support of their position that the Broiler Production

Contract does not contain any representations with respect to chicken quality. “When

parties file a motion with the court, they are obligated to insure that it is complete

with respect to facts, law and advocacy.” Potter, 199 F.R.D. at 553. “[Defendants]

cannot utilize [their] motion for reconsideration to take a second bite at the proverbial

apple, and [their] new arguments pertaining to the possibility of shaping relief are

therefore unavailing.” Ali v. Carnegie Inst. of Wash., 309 F.R.D. 77, 85 (D.D.C. 2015).

The Court rejects this basis for reconsideration.

15. As to the fifth and final issue raised in their opening brief, Defendants

contend that “the Court erred in concluding that Plaintiffs’ allegations are sufficient

to meet the pleading standard for fraud claims.” (Reply Supp. 6; Mem. Supp. 20−23.)
Defendants made this same argument—that the allegations are insufficient to satisfy

the pleading standard for fraud—in support of the Motion to Dismiss and, in essence,

“attempt to re-litigate the same issues that already have been decided.” Brunson,

2011 U.S. Dist. LEXIS 20469, at *7. “It is improper to file a motion for

reconsideration simply to ask the Court to rethink what the Court had already

thought through – rightly or wrongly.” Wiseman, 215 F.R.D. at 509 (quotation marks

omitted). “[A] motion to reconsider may not be used to raise arguments . . . that could

have been addressed or presented previously.” Jiangmen Kinwai Furniture

Decoration Co. Ltd v. IHFC Props., LLC, 1:14CV689, 2017 U.S. Dist. LEXIS 132246,

at *18 (M.D.N.C. Aug. 18, 2017). “It is hard to imagine a less efficient means to

expedite the resolution of cases than to allow the parties unlimited opportunities to

seek the same relief simply by conjuring up a new reason to ask for it.” Potter, 199

F.R.D. at 553.

16. In their reply brief, Defendants contend, for the first time, that

reconsideration is necessary for a sixth reason—to prevent manifest injustice in that

Plaintiffs are using their Second Amended Complaint as a “juggernaut” to make

discovery requests that are overly broad and unduly burdensome, and that to allow

Plaintiffs’ “factually insufficient” fraud claims to go forward would put an undue

burden on Defendants. (Reply Br. 6−9.) This latter argument assumes that the Court

agrees with Defendants that reconsideration of the Opinion, at least to the extent

that it deals with the fraud claims, is warranted, and, as discussed above, the Court

does not so agree. To the extent that Defendants contend that Plaintiffs’ discovery
requests are overly broad and unduly burdensome even based on the claims as

pleaded, this is not a proper basis for reconsideration. “In the context of a motion for

reconsideration, manifest injustice is defined as an error by the court that is direct,

obvious, and observable.” RF Micro Devices, Inc., 2016 U.S. Dist. LEXIS 74550, at *6

(quotation marks omitted). Plaintiffs’ discovery requests are the subject of Plaintiffs’

pending motion to compel, and the Court will properly consider the propriety of those

requests in connection with that motion. Plaintiffs’ allegedly unreasonable and

overbroad discovery requests do not constitute an error by the Court that is “direct,

obvious, and observable” so as to justify reconsideration of the Opinion under Rule

54(b). The Court therefore rejects Defendants’ sixth basis for reconsideration.

17. In sum, the Court concludes, in its discretion, that reconsideration of the

Court’s Opinion under Rule 54(b) is not appropriate.

IV. CONCLUSION

18. For the foregoing reasons, the Motion is DENIED.

SO ORDERED, this the 19th day of October, 2017.

/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases