Asset Group Inc v. Corrugated Erectors Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ASSET GROUP, INC., 	)
)
Plaintiff/Counterclaim Defendant, 	)
)
v. 	) 	Case No. CIV-14-435-SLP
)
CORRUGATED ERECTORS, INC., 	)
)
Defendant/Counterclaimant, 	)
)
and 	)
)
TRAVELERS CASUALTY AND 	)
SURETY COMPANY, 	)
)
Defendant. 	)
)
CORRUGATED ERECTORS, INC., 	)
)
Third-Party Plaintiff, 	)
)
v. 	)
)
GRAVITY-RATTERMAN, LLC, 	)
NATIONAL TRUST INSURANCE 	)
COMPANY, 	)
PHILADELPHIA INDEMNITY 	)
INSURANCE COMPANY, and 	)
GREAT AMERICAN INSURANCE 	)
COMPANY, 	)
)
Third-Party Defendants. 	)
O R D E R
Before the Court is Third-Party Defendant Gravity Ratterman, LLC’s (“Gravity”)
Motion to Reconsider Order [Doc. No. 579] Pursuant to Fed. R. Civ. P. 54(b) [Doc. No.
581], Third-Party Plaintiff Corrugated Erectors, Inc.’s (“Corrugated”) Response [Doc.
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No.583], and Gravity’s Reply [Doc. No. 588]. For the reasons articulated below, Gravity’s
Motion is DENIED.
I. 	Background1
Following significant developments in the case last year, the Court allowed the
parties to submit additional summary judgment motions addressing the developments and
remaining issues. Order [Doc. No. 579] at 2–3. The parties submitted cross-motions for
summary judgment. First, Gravity filed a Motion for Summary Judgment [Doc. No. 560],
and Corrugated filed a Response. See [Doc. No. 569]. Gravity did not file a reply. Second,
Corrugated filed its Amended Motion for Partial Summary Judgment [Doc. No. 566], to
which Gravity responded, see [Doc. No. 571], and Corrugated replied, see [Doc. No. 574].
On January 24, 2025, the Court issued the now-challenged Order [Doc. No. 579], denying
Gravity’s motion and granting Corrugated’s, as stated therein. Now, Gravity asks the Court
to reconsider its rulings in that Order.
II. 	Standards for Motion to Reconsider
A motion to reconsider is not expressly recognized by the Federal Rules of Civil
Procedure. 	See, e.g., Warren v. Am. Bankers Ins., 507 F.3d 1239, 1243 (10th Cir.
2007); Hatfield v. Bd. of Cnty. Comm'rs. for Converse Cnty., 52 F.3d 858, 861 (10th Cir.
1995); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Nonetheless, an
interlocutory order may be revised at any time prior to the entry of a final judgment as part
of the inherent powers of a district court. See Fed. R. Civ. P. 54(b); Warren, 507 F.3d at
1 Given the long, tortured history of this case, the Court confines its recitation of the background
to those facts only most pertinent to the instant Motion.
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1243. 	“Grounds warranting a motion to reconsider include (1) an intervening change in
the controlling law, (2) new evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000) (citations omitted); Van Skiver, 952 F.2d at 1243.
“[A] motion for reconsideration is appropriate where the court has misapprehended
the facts, a party's position, or the controlling law . . . It is not appropriate to revisit issues
already addressed or advance arguments that could have been raised in prior briefing.” Id.
Indeed, “[a] motion to reconsider is not a second opportunity for the losing party to make
its strongest case, to 	rehash arguments, or to dress up arguments that 	previously
failed.” Aceco Valves, LLC v. Neal, No. CIV-21-368-D, 2022 WL 9497361, at *1 (W.D.
Okla. Oct. 14, 2022) (citing Matosantos Com. Corp. v. Applebee's Int'l, Inc., 189 F.R.D.
467, 468 (D. Kan. 1999), aff'd, 245 F.3d 1203 (10th Cir. 2001)). 	Because the conditions
that 	justify 	granting 	a 	motion 	to 	reconsider 	are 	rarely 	present, 	such 	motions 	are
disfavored. 	See Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir.
1995) (“[A] motion for reconsideration is an extreme remedy to be granted in rare
circumstances.”).
III. 	Discussion
As an initial matter, the Court notes that Gravity does not cite any of the above
standards or framework for analyzing a request for reconsideration. 	See generally [Doc.
Nos. 581, 588]. As a result, Gravity also does not explain which basis from Servants would
merit reconsideration. Rather, Gravity merely states the well-settled principle that a court
may modify earlier interlocutory orders. Mot. [Doc. No. 581] at 5–6.
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Undoubtedly, Gravity does not seek reconsideration; it wants an opportunity to
address caselaw it purposefully ignored and to reiterate arguments already rejected.
Gravity’s Motion identifies no intervening change in the controlling law nor new evidence
previously unavailable. 	Gravity’s Motion also does not argue—or even mention—
manifest injustice. 	Thus, deductive reasoning suggests the only basis remaining for
reconsideration is “the need to correct clear error.” Servants, 204 F.3d at 1012 (emphasis
added). 	Although Gravity’s Motion does not expressly claim the Court clearly erred, its
Reply states it filed its Motion “to address what it considered to be an incorrect application
of 15 O.S. 2021, § 221(B) . . . .” Reply [Doc. No. 588] at 2. The Motion, however, goes
beyond just § 221(B) and further argues that the Court relied on “inapplicable”2 cases in
its Order. 	Mot. 	[Doc. No. 581] at 7–10. 	Lastly, it rehashes and restates an argument
already addressed in its summary judgment briefing. Compare Gravity’s MSJ [Doc. No.
560] at 8 (“[Corrugated] must still prove [Gravity] was at fault . . . [Corrugated] still has
the burden to establish liability on the part of [Gravity] . . . .”) with Mot. to Reconsider
[Doc. No. 581] at 21 (“[Corrugated] has the burden to prove its actual liability to Asset and
also to prove the extent of any fault [Gravity] may share in such liability.”).
The Court begins with the argument related to the “inapplicable” cases. 	These
“inapplicable” cases were cited by Corrugated in the summary judgment briefing and rather
2 Gravity takes specific issue with the Court’s application of three cases: Chicago, Rock Island &
Pacific Raltway Co. v. Dobry Flour Mills, 211 F.2d 785 (10th Cir. 1954); Callaway v. Wiltel
Commc'ns, LLC, No. 06-CV-0579-CVE-PJC, 2007 WL 2902878 (N.D. Okla. Oct. 2, 2007); Kelly-
Springfield Tire Co. v. Mobil Oil Corp., 551 P.2d 671 (Okla. Civ. App.. 1976). See [Doc. No. 581]
at 4–10.
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than address them in its Response or a Reply, Gravity left this Court to do the heavy lifting
of analysis. Indeed, the Court noted Gravity’s Response [Doc. No. 571] in the summary
judgment briefing included “just three pages of analysis” and did “not attempt to
distinguish Dobry or present any legal argument as to why it is inapplicable to this case
following the Settlement.” 	Order [Doc. No. 579] at 11. 	The Court then stated,
“Perplexingly, Gravity does not even mention Dobry in its Response, nor did it file a
reply in support of its own Motion to address the case’s applicability.” Id. (emphasis
added). Dropping a footnote here, the Court explicitly stated:
At a previous hearing, the Court suggested the parties’ arguments were akin
to a silent disco; rather than providing law or facts rebutting the opposing
party’s position, each party steadfastly stuck to the argument it wanted to
make. 	Gravity has not strayed from this approach in its briefing. 	Rather
than addressing Corrugated’s arguments under the Dobry line of cases,
Gravity continues beating the drum that such a result violates Okla.
Stat. tit. 15, § 221(B). 	To the extent there is some argument as to why
Dobry is inapplicable here, Gravity has not even attempted to make it.
The Court notes that Corrugated’s reliance on Dobry and its progeny can
come as no surprise to Gravity. Corrugated has promulgated this theory since
at least September 5, 2023, when it made similar arguments in support of its
motion for consent judgment. See [Doc. No. 475] at 9.
Order [Doc. No. 579] at 11, n.7 (emphasis added). Instead of interpreting this bewildered
observation as the admonishment it was intended to be, Gravity apparently believed it to
be an invitation from the Court to address caselaw and arguments it purposefully chose to
ignore. Not so.
For reasons unknown, Gravity chose not to address seminal case law in its briefing
that its adversary repeatedly cited to. 	It left the Court to analyze the cases and their
applicability—and now, Gravity takes issue with the Court’s application of those cases.
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These objections, however, come too late. The Court will not allow a litigant to ignore the
volume of caselaw cited by its opponent in briefing, wait for the outcome, and then
challenge an unfavorable order on the grounds of caselaw that it ignored—whether
purposefully or through neglect. 	This is particularly true where Gravity has entirely
omitted any explanation for why these cases and arguments were not addressed in its
summary judgment briefing. See [Doc. Nos. 581, 588].
Again, each of the cases Gravity challenges were briefed by Corrugated either in its
Partial Motion for Summary Judgment [Doc. No. 566] and/or in its Response to Gravity’s
Motion for Summary Judgment [Doc. No. 569]. In each instance, Gravity failed to address
the cases and their related argument in its Response or a Reply,3 wholly ignoring the cases
and effectively waiving its objections to Corrugated’s application and arguments. 	See
LCvR 7.1(g); Colt & Joe Trucking, LLC v. U.S. Dep't of Labor, 24-CV-00391-KWR-
GBW, 2025 WL 56658, at *17 (D.N.M. Jan. 9, 2025) (“Rather, a party that fails to address
or rebut arguments raised in an opposing party's motion for summary judgment loses the
opportunity to do so later on.”) (citing Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1393
(10th Cir. 1992)); Strauss v. Angie's List, Inc., 2019 WL 399910, at *7 (D. Kan. Jan 31,
2019) (denying motion to alter or amend judgment, noting that the plaintiff “waived any
3 Gravity takes issue with the Court’s Order reciting that Gravity did not file a Reply in support of
its Motion for Summary Judgment, arguing reply briefs are “not encouraged” and “not mandatory”
under the Local Rules of this Court. [Doc. No. 581] at 2–3. “The purpose of a reply brief under
local rule[s] is to rebut the nonmovants’ response, thereby persuading the court that the movant is
entitled to the relief requested by the motion.” Gezu v. Charter Commc'ns, 17 F.4th 547, 556 (5th
Cir. 2021). While a Reply was not mandatory, it certainly was not prohibited. Gravity chose not
to reply. 	There is nothing improper with the Court noting this fact, and Gravity sets forth no
authority to suggest otherwise.
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argument that the continuing [wrong] theory should apply to Defendant's affirmative
defense of laches by failing to raise the argument in prior briefing”), aff'd, 951 F.3d 1263
(10th Cir. 2020). Logsdon v. AT&T Commc'ns of Sw., Inc., 2003 WL 1872993, at *1 n.1
(D. Kan. 2003) (declining to consider argument raised for the first time in a motion for
reconsideration); Jones v. Colvin, No. 14-1311-JWL, 2015 WL 5883910, at *2–4 (D. Kan.
Oct. 8, 2015) (rejecting new arguments that could have been raised in prior briefing).
Further, as Corrugated rightfully points out, Gravity’s arguments related to § 221
and Corrugated’s burden to prove Gravity’s liability merely traverse the same well-worn
path already trodden by prior orders and briefing. See e.g., Gravity’s Resp. [Doc. No. 583]
at 17, n.6 (citing Order [Doc. No. 335]); Order [Doc. No. 536]; Order [Doc. No. 579]. As
such, a motion to reconsider is an inappropriate vehicle to raise them yet again. 	See
Carolina Indus. Products, Inc. v. Learjet, Inc., 194 F. Supp. 2d 1170, 1172 (D. Kan. 2002)
(“A party may not use a motion to reconsider as a vehicle for raising arguments that should
have been raised in the first instance or for rehashing arguments that have previously been
rejected by the court.”). The Tenth Circuit has held that “extraordinary circumstances” are
required to consider arguments in a motion to reconsider that were not presented in the
initially. Paraclete, 204 F.3d at 1012 (“Absent extraordinary circumstances, not present
here, the basis for the second motion must not have been available at the time the first
motion was filed.”). No such “extraordinary circumstances” exist here, and thus, Plaintiff’s
attempts to expand and rehash previous arguments is not a basis on which to grant a motion
to reconsider. See United States v. Nacchio, 555 F.3d 1234, 1252 (10th Cir. 2009) (“Courts
are not disposed to allow litigants to have two or more bites at the proverbial apple.”).
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Upon careful review of the parties’ briefing and the challenged Order, the Court
finds no grounds warranting reconsideration. Gravity points to no statement in the Court’s
Order that is factually or legally incorrect, nor does it identify any actions that are “clear
error” or would result in manifest injustice. 	While the Court declines to reconsider its
Order wholesale for the reasons stated above, the Court’s own review of its Order does not
indicate clear error or incorrect statements of fact or law. Accordingly, Gravity’s Motion
is DENIED.
IV. 	Conclusion
IT IS THEREFORE ORDERED that Third-Party Defendant Gravity Ratterman,
LLC’s Motion to Reconsider Order [Doc. No. 579] Pursuant to Fed. R. Civ. P. 54(b) [Doc.
No. 581] is DENIED.
IT IS SO ORDERED this 7 th day of July, 2025.
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