                      NOT RECOMMENDED FOR PUBLICATION
                              File Name: 17a0278n.06

                                        No. 16-4018
                                                                                  FILED
                                                                             May 18, 2017
                                                                         DEBORAH S. HUNT, Clerk
                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT

GMS MANAGEMENT COMPANY, INC.,                         )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
                                                              ON APPEAL FROM THE
v.                                                    )
                                                              UNITED STATES DISTRICT
                                                      )
                                                              COURT     FOR      THE
EVANSTON INSURANCE COMPANY,                           )
                                                              NORTHERN DISTRICT OF
                                                      )
                                                              OHIO
       Defendant-Appellee.                            )
                                                      )
                                                      )

BEFORE:       SUHRHEINRICH, BATCHELDER, and STRANCH

       ALICE M. BATCHELDER, Circuit Judge.                This case arises from the untimely

reporting of an insurance claim and the subsequent denial of coverage. The district court

properly granted summary judgment in this declaratory judgment action, and we AFFIRM.

       GMS Management Company, Inc. (“GMS”) owns apartment buildings in Ohio and held a

tenant discrimination liability insurance policy with Evanston Insurance Company (“Evanston”).

On August 16, 2013, GMS received notice from the Ohio Civil Rights Commission (“OCRC”)

that Thomas Fasanaro had filed a housing discrimination charge against GMS. The notification

letter informed GMS that it could engage in mediation, potentially resolving the charge before

investigation began, or investigation would proceed. GMS opted to engage in mediation on its

own and did not notify Evanston of the charge. On December 3, 2013, after mediation failed and

the OCRC began investigation, GMS reported the claim to Evanston.
No. 16-4018, GMS Mgmt. Co. v. Evanston Ins. Co.


        The insurance policy required that a claim be “promptly reported” to Evanston, and

reported “in no event later than sixty (60) days from the date of the institution of any legal or

administrative proceeding.” (Formatting altered). The policy further stated that reporting within

the requisite sixty days was a “condition precedent to coverage.” (Formatting altered). Based on

this language, and GMS’s failure to report the claim for almost four months after receiving

notice, Evanston denied coverage to GMS.

        GMS filed a declaratory judgment suit against Evanston, alleging that Evanston’s denial

of coverage was a breach of the insurance contract and in bad faith. The district court granted

summary judgment to Evanston on both claims, finding that Evanston properly denied coverage

and that the denial was not in bad faith. The district court also denied GMS’s motion to alter or

amend judgment, filed under Federal Rule of Civil Procedure 59(e), because the motion raised

new arguments that GMS had failed to raise at summary judgment.

        GMS appeals the denial of its Rule 59 motion, raising certain arguments that were raised

for the first time in that motion. We review for abuse of discretion the denial of a Rule 59(e)

motion. Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).

GMS has not demonstrated that the district court’s denial of the Rule 59 motion, and its refusal

to consider GMS’s improperly raised arguments, were an abuse of discretion. “A plaintiff

cannot use a Rule 59 motion . . . ‘to raise arguments which could, and should, have been made

before judgment issued.’” Id. at 616 (quoting Sault Ste. Marie Tribe of Chippewa Indians v.

Engler, 146 F.3d 367, 374 (6th Cir. 1998)). Accordingly, we find no error in the district court’s

refusal to consider these arguments and deem them forfeited on appeal. See Jones v. Select

Portfolio Servicing, Inc., ___ F. App’x ___, No. 16-5313, 2016 WL 6936526, at *3 (6th Cir.




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No. 16-4018, GMS Mgmt. Co. v. Evanston Ins. Co.


Nov. 28, 2016); Wardle v. Lexington-Fayette Urban Cty. Gov’t, 45 F. App’x 505, 511 (6th Cir.

2002).

         To the extent that GMS has properly presented other arguments, we find them meritless.

After carefully reviewing the record, the applicable law, and the parties’ briefs, we are convinced

that the district court did not err in its conclusions. The district court’s opinion carefully and

correctly sets out the law governing the issues raised and clearly articulates the reasons

underlying its decision. Thus, issuance of a full written opinion by this court would serve no

useful purpose. Accordingly, for the reasons stated in the district court’s opinion, we AFFIRM.




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