            Case: 17-13380   Date Filed: 01/16/2018   Page: 1 of 8


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13380
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:17-cv-00724-AKK

DAVID JOHNSON CONSTRUCTION CO., INC.,
d.b.a Johnson Heating and Cooling,

                                                           Plaintiff-Appellant,

                                   versus

CLEARING CONSULTING, INC.,
d.b.a. CLEAResult,
TENNESSEE VALLEY AUTHORITY,

                                                       Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                             (January 16, 2018)

Before TJOFLAT, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM:
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      This case arises from the proposed suspension of David Johnson

Construction Company (“Plaintiff”) from a list of contractors affiliated with the

Tennessee Valley Authority (“TVA”).

      Certain qualified contractors are listed on TVA’s Quality Contractor

Network (“QCN”) as part of the “EnergyRight” program offered by the TVA and

administered by Clearesult Consulting, Inc. (“Clearesult”). Plaintiff has been a

listed contractor for over three decades. After a complaint against Plaintiff by

another contractor, Clearesult informed Plaintiff it would be removed from the

QCN for one year. Plaintiff filed suit in Alabama state court, seeking to enjoin its

suspension. After removal to federal court, Defendants moved to dismiss the suit

for failure to state a claim. The District Court granted the motion and dismissed

the suit. Plaintiff then moved to alter, amend or vacate the order of dismissal and

for leave to amend its complaint. The District Court denied the motion, and

Plaintiff appealed.

      On appeal, we must decide whether the District Court abused its discretion

in denying (1) Plaintiff’s Motion to Alter, Amend, or Vacate the Court’s Order of

Dismissal or (2) Plaintiff’s Motion for Leave to File an Amended Complaint. We

find no abuse of discretion in the former, and therefore necessarily find none in the

latter. Accordingly, we affirm.

                                         I.

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      David Johnson Construction Company (“Plaintiff”) provides “heating and

cooling [services] to customers in Northeast Alabama.” Plaintiff has

“participa[ted] in and qualified as a contractor in the Quality Contract Network

(“QCN”) through the ‘EnergyRight’ program offered by” the Tennessee Valley

Authority (“TVA”) for 37 years. Clearesult Consulting Inc. (“Clearesult”)

administers the “EnergyRight” program and oversees QCN contractors in

Northeast Alabama on TVA’s behalf.

      In October 2016, Plaintiff met with TVA and Clearesult representatives to

discuss a complaint lodged against Plaintiff by another contractor. On November

21, Clearesult informed Plaintiff, by letter, that it “would be removed from the

QCN network for a period of one year beginning December 6, 2016.”

      On December 6, 2016, Plaintiff filed suit and moved for a TRO against

Clearesult in Alabama state court, seeking to enjoin Clearesult from suspending

Plaintiff from the QCN. The court ordered the TRO. Because Plaintiff failed to

name TVA as a defendant, the court extended the TRO to allow Plaintiff to amend

its pleading to “add all necessary parties including [TVA].”

      On April 11, 2017, Plaintiff filed its Second Amended Complaint and moved

for a preliminary injunction, adding TVA as a party. The complaint alleged that

the Plaintiff “ha[d] obtained a property right to participate in the ‘EnergyRight’

program as a QCN contractor”; that Defendants’ proposed suspension of the

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Plaintiff from the QCN was “arbitrary, capricious and without justification,”

causing “harm to the Plaintiff’s business” and “damage to the Plaintiff’s

reputation”; and that “[a] substantial portion of the Plaintiff’s gross revenue is

derived from participation in the QCN.”

       TVA removed the action to federal court and moved to dismiss 1 Plaintiff’s

complaint for failure to state a claim upon which relief may be granted, arguing,

inter alia, that “Plaintiff’s desire to continue its participation in the [QCN] is not a

constitutionally protected property right.” Fed. R. Civ. P. 12(b)(6). Plaintiff

responded, arguing that the proposed suspension from the QCN would violate

Plaintiff’s constitutionally protected liberty interest “in maintaining a good

business reputation,” and that “government action that accuses a person of

dishonesty or immorality requires the full protection of due process.”

       Plaintiff also moved for leave to amend its complaint to additionally allege

“that the Defendants’ decision to suspend the Plaintiff from the QCN program was

in violation of Plaintiffs’ [sic] due process liberty right under the 5th amendment.” 2

TVA opposed the motion, arguing that Plaintiff’s proposed amended complaint

failed to plead a due process liberty claim because it “contain[ed] no allegation of a

‘false or defamatory’ communication made by TVA.”


       1
           Clearesult joined TVA’s motion to dismiss.
       2
         Besides the addition of paragraph 9 in the proposed amended complaint, quoted above,
the two complaints are substantially identical.
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      On May 31, 2017, the District Court entered an order granting TVA’s

motion to dismiss and denying Plaintiff’s motion for leave to amend. The Court

concluded that, even with the allegations contained in the proposed amended

complaint, Plaintiff failed to plead facts sufficient to state a claim. Specifically,

the Court found that “the pleadings contained no “factual allegations showing

defamation[,]” a requirement for Plaintiff’s newly asserted due process claim for

violation of a liberty interest, and therefore “the amendment would be futile.”

      Plaintiff then filed a Motion to Alter, Amend, or Vacate under Federal Rule

of Civil Procedure 59(e), and For Leave to File an Amended Complaint under Rule

15(a). The Court denied the motion, first explaining that “[a]fter the dismissal of a

complaint and entry of final judgment [Rule] 15(a) does not apply; the plaintiff

who seeks leave to amend must do so [via] Rule 59(e).” The Court then denied

Plaintiff’s request for relief under Rule 59(e) because it failed to “reference any

newly-discovered evidence and [sought] merely to supplement claims the court

previously found to be insufficiently pleaded or to add new claims that could have

been raised prior to the entry of judgment.”

                                          II.

      Plaintiff now appeals the District Court’s Order denying Plaintiff’s Motion

to Alter, Amend or Vacate and For Leave to File an Amended Complaint.




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      We review both denials for abuse of discretion. Jacobs v. Tempur-Pedic

Int’l, Inc., 626 F.3d 1327, 1343 n.20 (11th Cir. 2010). “A district court abuses its

discretion if it applies an incorrect legal standard, follows improper procedures in

marking the determination, or makes findings of fact that are clearly erroneous.”

U.S. v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015) (citation omitted).

                                           A.

      Federal Rule of Civil Procedure 59(e) provides that “[a] motion to alter or

amend a judgment must be filed no later than 28 days after the entry of the

judgment.” Rule 59(e) motions may only be granted based on “newly-discovered

evidence or manifest errors of law or fact” and “cannot be used to relitigate old

matters, raise argument or present evidence that could have been raised prior to the

entry of judgment.” Jacobs, 626 F.3d at 1344 (quotation marks and citations

omitted).

      Plaintiff’s motion did not even purport to put forth any newly-discovered

evidence or to allege manifest errors of law or fact by the District Court. Instead, it

argued that the Court should vacate its prior judgment because Plaintiff’s “Fourth

Amended Complaint, attached [to the motion], resolves the shortcoming [of its

previous complaints and motions] and alleges abundant factual content under




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which th[e] Court could find the defendants liable.” 3 Essentially, Plaintiff’s

motion “did nothing but ask the district court to reexamine an unfavorable ruling.”

Id.

       Thus, we cannot say the District Court abused its discretion in denying

Plaintiff’s motion because it failed to “reference any newly-discovered evidence”

and sought “merely to supplement claims the court previously found to be

insufficiently pleaded or to add new claims that could have been raised prior to the

entry of judgment.” Accordingly, we affirm.

                                                 B.

       As for Plaintiff’s Motion for Leave to Amend its complaint under Federal

Rule of Civil Procedure 15(a)(2),4 that rule “governs amendment of pleadings

before judgment is entered; it has no application after judgment is entered.”

Jacobs, 626 F.3d at 1344. “[Rule] 15(a) has no application once the district court

has dismissed the complaint and entered final judgment for the defendant. Post-


       3
         On appeal, Plaintiff merely repeats this assertion, arguing that that its proposed Fourth
Amended Complaint “sufficiently stated facts . . . to state a claim against TVA and/or Clearesult
upon which relief can be granted.” Plaintiff also argues that its “initial Complaint against
Clearesult, and the amendment adding TVA as a party, sets out a factual basis for [sic] claim of
defamation.” Then Plaintiff sets out the pleading standard from Twombly and Iqbal, without
explicating how or why its pleadings meet that standard. Regardless, because the District
Court’s ruling on the Rule 59(e) motion was not an abuse of discretion, we need not reach the
question of whether Plaintiff’s complaints state a legally cognizable claim.
       4
          That rule reads in its entirety: “Other Amendments. In all other cases [besides
amendment as a matter of course under 15(a)(1)], a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a).
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judgment, the plaintiff may seek leave to amend if he is granted relief under Rule

59(e) . . . .” Id. at 1344–45 (citations omitted) (brackets original).

      The District Court dismissed Plaintiff’s complaint for failure to state a claim

and entered judgment prior to Plaintiff filing the motion for leave to amend at

issue. And as explained above, the Court properly denied Plaintiff’s request for

relief under Rule 59(e). Thus, we cannot say the District Court abused its

discretion in denying Plaintiff leave to amend its complaint post-judgment.

                                          III.

      For the foregoing reasons, the judgment of the District Court is

AFFIRMED.




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