United States District Court, D. Oregon, Portland Division
CAMPBELL GLOBAL, LLC, a Delaware limited liability company; and BASCOM SOUTHERN, LLC, a Delaware limited liability company, Plaintiffs,
AMERICAN STATES INSURANCE COMPANY, an Indiana corporation; AMERICAN ECONOMY INSURANCE COMPANY, an Indiana corporation; GENERAL INSURANCE COMPANY OF AMERICA, a New Hampshire corporation; and FIRST NATIONAL INSURANCE COMPANY OF AMERICA, a New Hampshire corporation, Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN, Chief United States District Judge
matter comes before the Court on the Motion for
Reconsideration  filed by Plaintiffs Campbell Global,
LLC, and Bascom Southern, LLC; and the Motion to Strike
Plaintiffs' Exhibits  filed by Defendants American
States Insurance Company, American Economy Insurance Company,
General Insurance Company of America, and First National
Insurance Company of America. Plaintiffs alternatively move
for entry of a partial final judgment pursuant to Federal
Rule of Civil Procedure 54(b) as to the Stage One claim for
breach of contract. Defendants oppose Plaintiffs' Motion
for Reconsideration, but do not oppose Plaintiffs'
alternative Motion for a partial final judgment.
reasons that follow, the Court GRANTS Defendants' Motion
to Strike Plaintiffs' Exhibits , DENIES
Plaintiffs' Motion for Reconsideration  in part
insofar as Plaintiffs seek reconsideration of the Court's
Opinion and Order , but GRANTS Plaintiffs' Motion
 in part insofar as Plaintiffs' seek a partial, final
judgment on the Stage One claim.
Defendants' Motion to Strike
their Motion, Defendants move to strike the Declarations of
the Honorable Braxton L. Kittrell, Jr. [48-1], Edward F.
Travis [48-2], and Tony Logan [48-3], the arbitrators in the
underlying arbitration. In those Declarations the arbitrators
each indicate they intended the Arbitration Award to sound in
both contract and in negligence, and not solely in contract
as this Court found in its Opinion and Order . Defendants
move to strike the Declarations on two bases: (1) the
Declarations were not part of the stipulated record on
summary judgment and, therefore, the Court should not
consider them on this Motion for Reconsideration; and (2)
even if Plaintiffs had included the arbitrators'
Declarations in the record on summary judgment, they would
have been inadmissible.
Court agrees with Defendants on both bases. In lieu of
discovery on the Stage One claims, the parties submitted a
stipulated record on summary judgment that did not include
the arbitrators' Declarations. Moreover, the Declarations
are external to the stipulated record insofar as they were
not referenced or otherwise incorporated in the record and
did not exist at the time that the parties litigated the
Cross-Motions for Summary Judgment. Consideration of the
Declarations at this late date would deprive Defendants of
the benefit of their bargain to limit the scope of the
summary-judgment record considered while still requiring
Defendants to forego the right to discovery before
dispositive-motion practice on the Stage One claim. Finally,
Plaintiffs have not established any good cause for why they
did not previously obtain or include the Declarations in the
record on summary judgment. Accordingly, the Court concludes
it would be inappropriate to consider the Declarations on
Plaintiffs' Motion for Reconsideration.
event, the Court notes the Declarations would be
inadmissible. In general, “[p]arties cannot call on
arbitrators to explain anything ‘vague and uncertain in
their award.'” Am. Family Mut. Ins. Co. v.
Spectre West Builders Corp., No. CV09-968-PHX-JAT, 2011
WL 488891 (D. Az. Feb. 4, 2011) (quoting Alexander v.
McNear, 28 F. 403, 406 (C.C.D. Cal. 1886)); see also
Ghebreselassie v. Coleman Sec. Servs., Inc., No.
88-6122, 1990 WL 4661, at *3 (9th Cir. Jan. 25, 1990) (noting
an “arbitrator's declaration explaining the award,
which stated a different basis for his decision” would
not have been admissible if the plaintiff had objected). The
Court finds the purpose of the arbitrators' Declarations
is to explain the basis of the Arbitration Award, and not, as
Plaintiffs contend, to explain procedural aspects of the
arbitration or to demonstrate the matters submitted and
considered by the arbitrators.
on this record the Court grants Defendants' Motion to
Strike Plaintiffs' Exhibits . The Court will not
consider the arbitrators' Declarations or any argument
that relies on the arbitrators' Declarations in deciding
Plaintiffs' Motion for Reconsideration.
Plaintiffs' Motion for Reconsideration
noted, Plaintiffs move the Court to reconsider its Opinion
and Order  on the basis that the Court clearly erred when
it (1) concluded the damages awarded in the arbitration were
for breach of contract, and (2) found Defendants did not have
a duty to indemnify Plaintiffs for the attorney fees awarded
by the arbitrators. Pursuant to Federal Rule of Civil
Procedure 54(b), “any order or other decision, however
designated, 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
judgment.” Fed.R.Civ.P. 54(b). “A motion for
reconsideration can be granted if the court 1) is presented
with new evidence, 2) committed clear error or the first
decision was manifestly unjust, or 3) is aware of an
intervening change in law.” Tranxition, Inc. v.
Lenovo (United States), Inc., No. 3:12-cv-01065-HZ, 2015
WL 9918263, at *1 (D. Or. Apr. 1, 2015). Parties seeking
reconsideration must do more than “re-rais[e] arguments
previously made or assert[ ] new legal theories or new facts
which could have been presented before the initial
hearing.” Sam v. Deutsche Bank Nat'l Tr.
Co., No. 03:13-cv-01521-MO, 2013 WL 6817888, at *2 (D.
Or. Dec. 23, 2013).
arguments regarding the Court's finding that the
Arbitration Award sounded in contract are largely
re-statements of the arguments that they made during the
course of litigating the Cross-Motions for Summary Judgment.
Accordingly, the Court concludes Plaintiffs have failed to
establish the Court clearly erred in so finding.
also contend the Court clearly erred when it found Defendants
did not have a duty to indemnify Plaintiffs for attorney fees
and costs that the arbitrators found Plaintiffs liable to
pay. Defendants rely on Hunters Ridge Condominium
Ass'n v. Sherwood Crossing, LLC, 395 P.3d 892,
904-06 (Or. Ct. App. 2017), to argue the attorney fees should
have been covered under the policies as supplementary
payments, not as damages for the breach of contract.
Court noted in its Opinion and Order, the only apparent basis
for the award of attorney fees by the arbitrators was the
lease between Plaintiffs and the Grays. Op. and Or. , at
10. Moreover, the arbitrators expressly included the attorney
fees and costs in the award of damages. The Arbitration Award
the Claimants' remaining claims for negligence and breach
of contract, the Respondents' Motion for Judgment as a
Matter of Law is ...