G & E Real Estate, Inc. v. Avison Young - Washington, D.C., LLC , 201 F. Supp. 3d 50 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
G&E REAL ESTATE, INC.,
Plaintiff
v.
Civil Action No. 14-418 (CKK)
AVISON YOUNG–WASHINGTON, D.C.,
LLC, et al.,
Defendants
MEMORANDUM OPINION and ORDER
(August 18, 2016)
Before the Court is Plaintiff’s [144] Motion for Reconsideration. Plaintiff seeks
reconsideration of the Court’s Order dated February 26, 2016, to the extent that the Court
granted summary judgment to Defendants on the breach of contract claim against Defendant
Analytic Services (“ANSER”) (Count I) and the tortious interference with contract claim against
the Avison Young Defendants (Count II). Upon consideration of the pleadings, 1 the relevant legal
authorities, and the record as a whole, the Court concludes Plaintiff has provided no basis for the
Court to reconsider its Order granting summary judgment to Defendants on Count I and Count II
of the operative complaint. Accordingly, Plaintiff’s [144] Motion for Reconsideration is
DENIED.
I. BACKGROUND
The Court presented the background of this case at length in its Memorandum Opinion
accompanying the Order resolving Defendants’ motions for summary judgment. See generally
1
The Court’s consideration has focused on the following documents:
• Pl.’s Mot. for Reconsideration (“Pl.’s Mot.”), ECF No. 144;
• Avison Young Defs.’ Mem. in Opp’n to Pl.’s Mot., ECF No. 145;
• Opp’n of Def. Analytic Services, Inc., to Pl.’s Mot., ECF No. 146;
• Pl.’s Reply Mem. in Further Supp. of its Mot. (“Pl.’s Reply”), ECF No. 147.
1
G&E Real Estate, Inc. v. Avison Young-Washington, D.C., LLC, No. CV 14-418 (CKK), 2016
WL 777908, at *2-*3 (D.D.C. Feb. 26, 2016); see also id. at *4-*11 (discussion of contract-
related claims). Given the limited scope of the issues presented in the pending motion, there is no
need to do so again here. Instead, the Court reserves a presentation of any relevant background
for the issues discussed below.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 54(b) provides that “any order ... that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at
any time before the entry of a judgment adjudicating all the claims and all the parties' rights and
liabilities.” “The Court has broad discretion to hear a motion for reconsideration brought under
Rule 54(b).” Flythe v. D.C., 4 F. Supp. 3d 216, 218 (D.D.C. 2014) (quoting Isse v. Am. Univ., 544
F. Supp. 2d 25, 29 (D.D.C. 2008)). “[T]his jurisdiction has established that reconsideration is
appropriate ‘as justice requires.’ ” Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005). In
general, “a court will grant a motion for reconsideration of an interlocutory order only when the
movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence
not previously available; or (3) a clear error in the first order.” Stewart v. Panetta, 826 F. Supp.
2d 176, 177 (D.D.C. 2011) (quoting Zeigler v. Potter, 555 F. Supp. 2d 126, 129 (D.D.C. 2008)).
III. DISCUSSION
As the basis for Plaintiff’s Motion for Reconsideration, Plaintiff argues that there was a
clear error of law in the Court’s original Memorandum Opinion accompanying the Order
2
resolving Defendants’ motions for summary judgment. 2 Because Plaintiff never presented the
arguments that are the basis for its Motion for Reconsideration in opposing summary judgment,
in the first instance, the Court declines to exercise its discretion to reconsider its previous
decision.
With respect to the claims at issue in the Motion for Reconsideration, the Court
previously outlined the parties’ arguments in the briefing on the motions for summary judgment
as follows:
ANSER argues that the Tenant Representation Agreement was an executory
contract with respect to the bankruptcy proceeding and that it was never assumed
by the bankruptcy estate or assigned to BGC. Because the Tenant Representation
Agreement was executory but was not assumed or assigned, ANSER argues, BGC
had no stake in the contract that it could assign to Plaintiff G&E. Plaintiff
responds that ANSER had materially breached the Tenant Representation
Agreement prior to the filing of the bankruptcy petition and that, therefore, the
contract could not be assumed or assigned through the bankruptcy process.
Instead, the breach of contract claim, they argue, was assigned to BGC along with
other such claims through the bankruptcy process. ANSER responds that there
was no material breach of the Tenant Representation Agreement prior to the
bankruptcy petition and that, even if there were such a breach, that it would not be
sufficient to render the Agreement non-executory because the agreement was not
terminated at that time. In essence, this amounts to a dispute about (1) whether
Plaintiff has identified sufficient evidence of a relevant material breach to require
factual resolution by a jury and (2) whether, legally, a material breach without any
attempt to terminate is sufficient to render a contract non-executory.
G&E I, 2016 WL 777908 at * 5.
In other words, as relevant here, Defendants argued that BGC—the entity from which
Plaintiff purports to trace the claims at issue in the pending Motion for Reconsideration—had no
stake in the underlying contract that it could subsequently assign to Plaintiff. Plaintiff presented
only one legal theory in response: that Defendants had breached the contract prior to the
2
Plaintiff does not present any other basis for a motion for reconsideration, such as an
intervening change of law or the discovery of new evidence. See Stewart, 876 F. Supp. 2d. at
177.
3
February 20, 2012, bankruptcy petition. See G&E I, 2016 WL 777908, at *10 (“Plaintiff
responds that the contract was materially breached prior to the bankruptcy petition and that the
associated claims, therefore, were properly assigned to BGC and then to Plaintiff.”); see also,
e.g., Pl.’s Opp’n to ANSER’S Mot. for Summary Judgment, ECF No. 128, at 14 (“Plaintiff was
not required to assume the Brokerage Agreement pursuant to Section 365 of the Bankruptcy
Code because the Agreement had already been breached”); id. at 14-15 (“A contract that has
terminated or expired prior to the filing of a bankruptcy petition is no longer executory. …
Because the Brokerage Agreement had been breached and was therefore terminated prior to
G&E’s bankruptcy petition, there was nothing left to assume.”).Therefore, Plaintiff argued that
the Tenant Representation Agreement was no longer executory as of the bankruptcy petition, and
the contract and tortious interference claims were assigned to BGC during the bankruptcy
proceedings. The factual predicate for this argument—the sole argument presented—was
necessarily limited to events that occurred prior to the bankruptcy petition. See G&E I, 2016 WL
777908, at *6 (quoting Pl.’s Opp’n to ANSER’s Mot., ECF No. 128, at 16-17, 18-19).
The Court resolved the motions for summary judgment on the basis of the record then
before the Court. The only legal theory—and associated factual predicate—proffered by Plaintiff
as to how BGC had obtained contract claims that it could, in turn, assign to Plaintiff was that of a
pre-petition breach of contract. The Court thoroughly analyzed the record and concluded that
there was no breach of contract prior to the bankruptcy petition. Id. at *8. 3 Accordingly, the
Court concluded that the Tenant Representation Agreement was executory at the time of the
3
Plaintiff does not now contest the Court’s conclusion that there was no pre-petition breach of
contract. Pl.’s Mot. at 7 n.4 (“Although G&E Real Estate contended that ANSER had materially
breached the Tenant Representation Agreement before Grubb & Ellis filed for bankruptcy on
February 20, 2012, the Court held otherwise, and G&E Real Estate does not contest that finding
here.”).
4
bankruptcy petition. Because the pre-petition breach was the only basis Plaintiff identified for
BGC having obtained a stake in the contract claim (which would allow it to survive summary
judgment), and because the record did not show a pre-petition breach, the Court concluded that
BGC had not acquired any stake in the contract claim. Because BGC never acquired a stake that
could be subsequently assigned to Plaintiff, Plaintiff has no stake in the contract claim.
Therefore, Plaintiff could not pursue that claim in this action. Id. For the same reasons, the Court
in addition concluded that Plaintiff had never acquired a tortious inference with contract claim
that it could pursue in this litigation. Id. at *10. Accordingly, the Court granted summary
judgment to Defendants on those claims.
The Court’s analysis and its conclusion was properly limited to the legal theory and
factual predicate that were presented by the parties for the Court’s consideration. The Court did
not reach issues that were not presented by the parties at that time. 4 However, as the basis for its
Motion for Reconsideration, Plaintiff presents a wholly new legal theory, with a new factual
predicate, as to why Plaintiff’s contract-based claims presented in Counts I and II of the
operative complaint should have survived Defendants’ motions for summary judgment.
Specifically, Plaintiff argues that the disputed claims should survive summary judgment because
of a post-petition breach of contract. 5 In Plaintiff’s present motion, Plaintiff relies solely on a
putative breach that occurred on June 11, 2012, several months after the February 20, 2012,
4
Even Plaintiff acknowledges that that, in resolving Defendants’ motions for summary
judgment, “the Court followed the parties’ primary focus on the pre-petition events.” Pl.’s Mot.
at 5.
5
Plaintiff never claims that this theory was presented to the Court in the original briefing on the
motions for summary judgment. See id. at 7 n.4 (explaining that Plaintiff had previously relied
on a pre-petition breach).
5
filing of the bankruptcy petition. See Pl.’s Mot. at 14-15. Plaintiff argues that, as a result of the
alleged June 2012 breach, its claims should survive summary judgment. 6
The legal theory on which Plaintiff now relies—that of a post-petition breach allows the
claims to survive summary judgment—and the associated factual predicate were never presented
to the Court in opposing Defendants’ motions for summary judgment. 7 Because this theory was
not presented to the Court, the Court did not commit clear legal error in failing to address the
new arguments that Plaintiff now presents. Plaintiff’s new theory is based on an entirely different
factual predicate (a post-petition breach) than the one on which Plaintiff relied in opposing the
motions for summary judgment (a pre-petition breach). As a result, the Court’s failure to
consider a theory and a factual predicate that were not placed before it does not constitute legal
error, let alone the type of clear legal error that warrants the Court’s exercise of its discretion to
reconsider its prior decision.
In addition, Plaintiff argues that the Court’s prior legal analysis was in error because it
failed to address several related legal principles. Specifically, Plaintiff now argues for the first
time that a rejection of a contract in bankruptcy is considered a breach before the date of the
petition, rather than a termination. See Pl.’s Mot. at 7-9. Plaintiff also argues for the first time
that whether or not a contract claim by a debtor exists is a matter of state contract law, rather than
of federal bankruptcy law. See id. at 10-11. Similarly, Plaintiff argues for the first time that a
6
Notably, the Plaintiff’s legal theory and the associated factual predicate evolved yet again in its
reply in support of its Motion for Reconsideration. In its reply, Plaintiff only relies on breaches
that it claims occurred on February 27, 2012; February 29, 2012; and April 4, 2012, rather than
the alleged June 2012 breach identified in the Motion for Reconsideration itself. See Pl.’s Reply
at 9. But it is too late to raise a new argument in a reply brief that could have been raised in the
original motion.
7
Nor is that there anything to justify the failure to present those arguments at that time. The
Court notes that Plaintiff was represented by able counsel throughout these proceedings.
6
debtor—or its assignees—may pursue a contract claim even for a rejected contract because a
breach by a non-debtor would make the assumption of the contract futile. See id. at 12-14.
Plaintiff argues that the Court erred in failing to address these and related legal principles in
resolving the motions for summary judgment. The Court disagrees. As to each of these areas of
law that Plaintiff now highlights, there was no need for the Court to address them in considering
Defendants’ motions for summary judgment. As explained above, Plaintiff presented a single
theory as to how BGC acquired a stake in the contract-related claims—a pre-petition breach. The
Court properly resolved the motions for summary judgment on that basis. The Court had no
occasion to address the several legal propositions that Plaintiff now emphasizes because Plaintiff
had not raised them. Moreover, these legal arguments were not raised by implication by
Plaintiff’s sole theory as to how the claims survived summary judgment—that of a pre-petition
breach. Accordingly, the Court did not commit clear legal error in resolving the motions for
summary judgment.
Nor is there any reason to address, now, the merits of the legal propositions raised by
Plaintiff for the first time in the Motion for Reconsideration. Plaintiff failed to raise those issues
in opposing summary judgment, and it is too late to do so now. In particular, the Court notes that
there has never been full briefing on these issues because of Plaintiff’s own choice not to raise
them in opposing the motions for summary judgment.
In sum, the Court resolved Defendants’ motions for summary judgment based on the
arguments and factual predicate presented to the Court at that time. Plaintiff now raises new
arguments that were never before presented. The Court had no occasion to reach these not-yet
presented arguments in resolving Defendants’ motions for summary judgment. The Court,
therefore, will not exercise its discretion to consider for the first time arguments that Plaintiff
7
failed to place before the Court in opposing summary judgment. In addition, insofar as Plaintiff
now attempts to re-litigate any issues that were, in fact, presented in the parties’ prior briefing on
Defendants’ motions for summary judgment, the Court sees no basis to reconsider its prior
analysis with respect to any such issues. Accordingly, the Court’s original Order resolving the
Motions for Summary Judgment stands, in full, for the reasons previously stated in its thorough
Memorandum Opinion.
IV. CONCLUSION and ORDER
For the foregoing reasons, as well as the reasons stated in the [138] Memorandum
Opinion issued in this case on February 26, 2016—which the Court fully incorporates and makes
part of this Memorandum Opinion and Order—it is hereby ORDERED that Plaintiff’s [144]
Motion for Reconsideration is DENIED.
The Court will issue a separate Order scheduling a Status Conference to discuss further
proceedings in this case.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
8