WENDY L. HAGENAU, Bankruptcy Judge.
This matter came before the Court on Defendant Shechem Industries, Inc.'s ("Shechem") Motion for Entry of Final Judgment Under Rule 54(b) ("Motion") (Docket No. 91) and Plaintiff's response objecting to the entry of final judgment ("Objection") (Docket No. 94). For the reasons stated below, the Court denies Plaintiff's Objection and grants Shechem's Motion.
Plaintiff Jason Pettie ("Plaintiff") filed this adversary proceeding on October 30, 2015, seeking to avoid certain transfers from Debtor Rocky White ("Debtor") to Defendants Kevin Ringo ("Ringo") and Shechem Industries, Inc. ("Shechem"). Specifically, the complaint sought: to avoid the transfer of the Debtor's interest in a certain business entity to Ringo under state law (Counts 1-3), to avoid a transfer of real property located at 1390 Hillside Drive, Grayson, Georgia ("Hillside Property") to Shechem under 11 U.S.C. § 548 (Counts 4-5), the recovery of the avoided transfers to Ringo and Shechem (Count 6), the turnover of the Hillside Property under 11 U.S.C. § 542 (Count 7), a claim for open account against Shechem (Count 8), and a claim for unjust enrichment against Shechem (Count 9).
On June 6, 2016, Shechem filed a motion seeking summary judgment on Counts 7 through 9 (Docket No. 42). The Court granted the motion in part, granting summary judgment in favor of Shechem on Counts 7 and 8 while denying summary judgment as to Count 9 without prejudice to later renewal (Docket No. 66). Shechem also filed a motion seeking summary judgment on Counts 4 and 5 (Docket No. 61) and later a renewed motion seeking summary judgment on Count 9 (Docket No. 78). The Court ruled in favor of Shechem on all remaining counts on October 24, 2016 (Docket No. 86) (together with Docket No. 66, the "Summary Judgment Orders"). Approximately five months later, Shechem filed the Motion seeking the certification of the Summary Judgment Orders as final orders pursuant to Fed. R. Civ. P. 54. In response, Plaintiff filed the Objection stating that certain new evidence created a dispute as to the facts surrounding the unjust enrichment claim, Count 9. The Court held a status conference on May 4, 2017, where it stated it would construe Plaintiff's Objection as a request for the Court to effectively reconsider the order granting summary judgment in favor of Shechem.
The new evidence alleged by Plaintiff was the testimony of Joe Forrester,
Reconsideration of Summary Judgment Order
Fed. R. Civ. P. 54(b), made applicable to this proceeding by Fed. R. Bankr. P. 7054, states in pertinent part that "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 a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Rule 54 therefore grants the Court discretion to revise or reconsider its orders at any time prior to final judgment.
Though Rule 54(b) does not provide any guidelines for determining whether reconsideration of a non-final order is appropriate, courts within the Eleventh Circuit have agreed that "a motion for reconsideration should only be granted if there is (1) an intervening change in controlling law, (2) newly discovered evidence, or (3) the need to correct clear error or prevent manifest injustice."
Plaintiff does not specify which specific standard is the basis for the Objection, however. Plaintiff fails to argue any change in controlling law or clear error of law or fact, instead stating that "a grant of summary judgment can be revised as evidence warrants." Accordingly, the Court will construe the Objection as based on newly acquired evidence. For an order to be revised on the basis of new evidence, the moving party must establish that the evidence in question is in fact "new" or was previously unavailable.
Plaintiff has failed to carry his burden as to both the documentary evidence submitted with the Objection and the testimonial evidence of Joe Forrester. With respect to the documents submitted as exhibits to the Objection, it is undisputed that Plaintiff was in possession of each of the documents while Shechem's summary judgment motions were pending. With respect to the testimonial evidence from Mr. Forrester, Plaintiff conducted a deposition of Mr. Forrester on February 9, 2016, approximately four months prior to Shechem's first motion for summary judgment. Additionally, Plaintiff does not dispute that the relevant documents were in his possession when he deposed Mr. Forrester. Plaintiff could have raised questions regarding the payment of taxes and insurance prior to Shechem's summary judgment motions had he so decided. "[I]f the movant had the opportunity to present the evidence or litigate the issue earlier, but did not do so, either because of inadvertence or strategic maneuver, the Rule 54(b) motion should be denied."
Furthermore, even if the Court did consider the submitted documents and Mr. Forrester's trial testimony to be newly discovered evidence, it would not materially affect the Court's analysis of the unjust enrichment claim, as the Court previously considered the possibility that Shechem did not pay the taxes and insurance for the Hillside Property. Plaintiff argued in response to Shechem's renewed motion for summary judgment that Shechem did not actually pay the taxes and insurance on the Hillside Property, even though no evidence was presented on this point. The Court held that even assuming Plaintiff's position were supported with evidence, the Court's conclusion would not change—Shechem was not unjustly enriched.
Certification of Summary Judgment Order as Final Under Rule 54
Fed. R. Civ. P. 54(b) governs the certification of judgments as final, stating in relevant part "[w]hen an action presents more than one claim for relief . . . the court may direct entry of a final judgment as to one or more, but fewer than all, claims . . . only if the court expressly determines that there is no just reason for delay." To make a determination under Rule 54(b), courts must engage in a two-step process: first, making a determination that a "final judgment" has been entered, and second, finding that there is no just reason to delay certification of the final judgment.
To qualify as a final judgment, "[i]t must be a `judgment' in the sense that it is a decision upon a cognizable claim for relief, and it must be `final' in the sense that it is `an ultimate disposition of an individual claim entered in the course of a multiple claims action.'"
The Court must next determine whether there is any just reason for delay. In making its determination, a court "must take into account judicial administrative interests as well as the equities involved."
Accordingly, it is hereby