                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


FMD RESTORATION, INC.,

            Plaintiff/Counter-Defendant,

       v.                                                        Civil Action No. 13-651
                                                                          DAR
BAISTAR MECHANICAL, INC., et al.,

            Defendants/Counter-Plaintiffs.



                                 MEMORANDUM OPINION

       Plaintiff and counterclaim Defendant, FMD Restoration, Inc. (“FMD”) initially brought

suit in a breach of contract action against Defendant and counterclaim Plaintiff Baistar Mechanical,

Inc. (“Baistar”). Baistar asserted a counterclaim against FMD alleging breach of contract. The

case proceeded to a bench trial, following which the court held that while FMD had materially

breached the contract between the parties, Baistar failed to introduce evidence sufficient to

demonstrate actual damages. The court, therefore, entered judgment for Baistar, but awarded only

nominal damages. Baistar now moves for the court to alter or amend its findings of fact pursuant

to Rule 52, and to alter or amend its judgment pursuant to Rule 59(a)(2).


PROCEDURAL BACKGROUND

       FMD filed the complaint in May, 2013, alleging three counts of breach of contract by

Baistar. See Complaint (ECF No. 1). On June 20, 2013, Baistar answered the Complaint and pled

as a counterclaim two counts of breach of contract, and a third count alleging tortious interference

with business expectations by FMD. See Defendant Baistar Mechanical, Inc.’s Counter-Complaint

(ECF No. 5-1). On August 27, 2013, the Court (Jackson, J.) referred the matter to the undersigned
FMD Restoration, Inc. v. Baistar Mechanical, Inc., et al.                                           2


for the possibility of settlement. Order Referring Case (ECF No. 14). On December 12, 2013, the

parties consented to proceed before the undersigned for all purposes. Consent to Proceed before

US Magistrate Judge for All Purposes (ECF No. 18).

         The undersigned held a four-day bench trial concluding on May 23, 2014, after which both

parties were instructed to submit proposed findings of fact and conclusions of law. 05/23/2014

Minute Entry. Baistar submitted its proposed findings on October 27, 2014. See Proposed

Findings of Fact (ECF No. 39). FMD submitted its proposed findings on November 24, 2014. See

Proposed Findings of Fact (ECF No. 40). The undersigned issued a memorandum opinion and an

order of final judgment on June 21, 2016. FMD Restoration, Inc. v. Baistar Mechanical, Inc., No.

13-00651, 2016 WL 3461183 (D.D.C. June 21, 2016); Order of Final Judgment (ECF No. 49).


CONTENTION OF THE PARTIES

         Baistar seeks to amend the court’s findings of fact on the ground that the court “made a

mistake of fact in finding that the breach of contract damages were less than the costs avoided by

terminating FMD with cause.”              Defendant/Counter-Complaintant Baistar Mechanical, Inc.’s

Motion to Alter or Amend Judgment (“Motion”) (ECF No. 50) at 2. Baistar argues that the court

held it to an “unreasonably high standard of evidence,” id. at 3, when it found that Baistar had

failed to show that “the materials supplied and work performed by Mega Construction were within

the scope of FMD’s requirements,” 2016 WL 3461183, at *11. Baistar submits that it “proved

well beyond a preponderance of the evidence that Mega Construction did [replacement work], and

that the work was within the scope” of the contract with FMD. Motion at 3.

         In support, Baistar points to several portions of the trial transcript, wherein Baistar owner

Hung Ku Jun testified about the arrangement between Baistar and Mega Construction. Id. at 3–5.

Baistar argues that Mr. Jun’s testimony was unrebutted by FMD on cross-examination, and there
FMD Restoration, Inc. v. Baistar Mechanical, Inc., et al.                                           3


“is nothing in the record to suggest that the work was not in the scope.” Id. at 5. Accordingly,

Baistar seeks to amend the findings of fact to include the payments to Mega Construction among

Baistar’s actual damages. Id. at 6. Such a finding would necessitate an amendment of the

judgment; awarding Baistar $135,717.10. Id.

         In the alternative, Baistar requests “that the Court open the matter for further proceedings,

to call representatives from Mega Construction and Dominion Millwork to testify as to the work

that was done, and corroborate the testimony of Mr. Jun and the payment documentation.” Id.

         FMD contends that Baistar’s motion should be construed as a Rule 59(e) motion for

reconsideration, and that such a motion is not warranted by the circumstances.

Plaintiff/Counterclaim Defendant’s Memorandum in Opposition and Statement of Points and

Authorities in Support (“Opposition”) (ECF No. 51) at 1–2. FMD argues that none of the criteria

for a Rule 59(e) motion are present because there has been no change in controlling law, new

evidence not available at trial, or a clear error of law. Id. at 2–3. According to FMD, the testimony

cited by Baistar does not support amending the judgment because it contained “many

incongruities,” id. at 3, and demonstrated that Baistar “hired Mega Construction, Delmy

Construction and Dominion Millwork to complete all of the work on the Project; whether or not it

was FMD’s work[.]” Id. at 4–5. Baistar did not file a reply to FMD’s opposition.


APPLICABLE STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 52(b) a party may move, within 28 days of the entry

of judgement, for the court to “amend its findings—or make additional findings—and . . . amend

the judgment accordingly. Fed. R. Civ. P. 52(b). This Rule “permits the trial court to correct

manifest errors of law or fact, make additional findings or take other action that is in the interests

of justice.” Ashraf-Hassan v. Embassy of France, No. 11-805 (JEB), 2016 WL 2626833, at *8
FMD Restoration, Inc. v. Baistar Mechanical, Inc., et al.                                           4


(D.D.C. May 6, 2016) (quoting Bigwood v. Defense Intelligence Agency, 770 F. Supp. 2d 315, 318

n.2 (D.D.C. 2011)). The decision of whether to grant such a motion is left “to the sound discretion

of the trial judge and is not an avenue for relitigating issues upon which the moving party did not

prevail at trial.” Id. (quoting Material Supply Int’l, Inc. v. Sunmatch Indus. Co., Ltd., No. 94-1184,

1997 WL 243223, at *2 (D.D.C. May 7, 1997)). Accordingly, the moving party “bears a heavy

burden in seeking to demonstrate clear error of manifest injustice necessitating amendment of the

judgment.” Id. Rule 52 “cannot be a substitute for an appeal” and cannot be used as “a second

opportunity to litigate a point, to present evidence that was available but not previously offered, or

to advance new theories by moving to amend a particular finding of fact or conclusion of law.”

Salazar v. District of Columbia, 685 F. Supp. 2d 72, 75 (D.D.C. 2010) (citing 9C Wright & Miller,

Federal Practice and Procedure, § 2582 (3d ed. 2009)).

         Pursuant to Rule 59, a party may “open the judgment if one has been entered, take

additional testimony, amend findings of fact and conclusions of law or make new ones, and direct

the entry of a new judgment.” Fed. R. Civ. P. 52(a)(2). As with motions brought under Rule 52,

“Rule 59 motions may not be used to religitate old matters, or to raise arguments or present

evidence that could have been raised prior to the entry of judgment.” Salazar, 685 F. Supp. 2d at

75 (citing 11 Wright, Miller & Kane, Federal Practice and Procedure, § 2810.1 (2d ed. 2009);

Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008); Klayman v. Judicial Watch, Inc., No. 06-670

(CKK), 2007 WL 1034936, at *2–3 (D.D.C. Apr. 3, 2007); United States v. Western Elec. Co.,

Inc., 690 F. Supp. 22, 25 (D.D.C. 1988)). “The purpose of Rule 59(a)(2) is not to introduce new

evidence that was available at the time of trial but was not proferred[.]” Ashraf-Hassan, 2016 WL

2626833, at *11 (citing Chavez v. City of Albuquerque, 640 F. Supp. 2d 1340, 1343 (D.N.M.

2008)). A trial court “should be most reluctant to set aside that which it has previously decided
FMD Restoration, Inc. v. Baistar Mechanical, Inc., et al.                                             5


unless convinced that . . . refusal to revisit the earlier decision would work a manifest injustice.”

Id. (citing Barnes v. Alves, 304 F.R.D. 363, 366–67 (W.D.N.Y 2015)).


DISCUSSION

         Baistar has failed to demonstrate that any of the grounds warranting relief pursuant to either

Rule 52 or Rule 59 are present in this case. Accordingly, the court will deny the motion for the

reasons set forth below.

         Baistar does not argue that there has been any change in controlling law, nor does it argue

that any new evidence has come to light that was not available during the trial. Instead, Baistar

seeks to amend the court’s findings because, it argues, the court held it to “an unreasonably high

standard of evidence,” Motion at 3, when the court found that Baistar had failed to show that the

replacement costs to Mega Construction were within the scope of the contract with FMD, see 2016

WL 3461183, at *11. Baistar claims that the testimony of Mr. Jun was more than sufficient to

show that the materials supplied and the work performed by Mega Construction were within the

scope of the contract with FMD; in fact, Baistar argues that “[t]here is nothing in the record to

suggest that the work was not in the scope.” Motion at 5.

         The court did not find this argument persuasive during trial, and it has no need to re-litigate

the issue at this time. Post-trial motions under Rule 52 and Rule 59 are not to be used when a party

is merely seeking to re-litigate a finding that was made during the course of trial. See Salazar, 685

F. Supp. 2d at 75. The court held that there was conflicting evidence in the record about whether

all of the work done by Mega Construction was within the scope of the contract with FMD, and

subsequently found that Baistar had failed to “offer evidence sufficient to prove by a

preponderance of the evidence that FMD was required by the terms of the subcontract to provide

millwork and fire doors.” See 2016 WL 3461183, at *10. The court regards Baistar’s argument
FMD Restoration, Inc. v. Baistar Mechanical, Inc., et al.                                            6


that “[t]here is nothing in the record to suggest that the work was not in the scope[,]” see Motion

at 5 (emphasis added), as tantamount to a request that Baistar be relieved of its burden of proof.

Thus, the court has no basis upon which to alter or amend its findings of fact or conclusions of law

based on the argument presented by Baistar.

          Similarly, Baistar has not offered any persuasive rationale for the court to “open the matter

for further proceedings” at this time. See Motion at 6. Rule 59 is not to be used to introduce new

evidence that was available at the time of trial. See Ashraf-Hassan, 2016 WL 2626833, at *11.

Baistar offers no explanation for why it did not call a representative from Mega Construction or

Dominion Millwork to testify during trial, and there is no allegation that any such representative

was unknown or unavailable to Baistar during the trial itself. Baistar cannot now seek to utilize

Rule 59 to save itself from litigation decisions it has since reconsidered. See Does v. Bush, No.

05–313, 2007 WL 2007614, at *1 (D.D.C. July 11, 2007) (“[T]he law is clear that a Rule 59(e)

motion is not . . . a means to bring before the Court theories or arguments that could have been

advanced earlier.”) (quoting W.C. & A.N. Miller Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C.

1997), aff’d sub nom. Hicks v. United States, No. 99–5010, 1999 WL 414253 (D.C. Cir. May 17,

1999)).


CONCLUSION

          For the reasons outlined above, the court will deny Baistar’s motion. An appropriate Order

accompanies this Memorandum Opinion.



                                                                              /s/
                                                                DEBORAH A. ROBINSON
March 30, 2017                                                  United States Magistrate Judge
