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Nixon v. Nationwide Mutual Insurance Co.

United States District Court, N.D. Alabama, Western Division

October 11, 2017

CRAWFORD NIXON, Plaintiff,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant.

          MEMORANDUM OF OPINION

          L. Scott Coogler, United States District Judge

         Plaintiff Crawford Nixon (“Nixon”) filed this action against Nationwide Mutual Insurance Company (“Nationwide”), alleging that Nationwide breached its Standard Flood Insurance Policy (“SFIP”) with Nixon by denying Nixon's claim for benefits under the SFIP. Before this Court is Nixon's second motion to alter or amend judgment. (Doc. 79.) In the motion, Nixon urges this Court to reconsider under Federal Rule of Civil Procedure 59(e) its Order granting summary judgment in favor of Nationwide (the “Summary Judgment Order”) and its Memorandum of Opinion and Order denying Nixon's first motion to alter or amend (the “First MAA Order”). Nixon argues this Court committed a manifest error of fact because it construed Nixon's previous pleadings to not include claims for repair to the structure of Nixon's home (“structure damages”). For the reasons stated below, Nixon's second motion to alter and amend is due to be DENIED.

         I. Relevant Procedural History

         On March 21, 2017, the Court entered the Summary Judgment Order in favor of Nationwide and dismissed Nixon's claim. (See Doc. 72.) The Court found that Nixon had failed to show he was entitled to damages to repair flood-related land erosion (“land damages”) or damages for relocating his home (“relocation damages”). Nixon filed a timely motion to alter or amend judgment under Rule 59(e) on April 3, 2017. (Doc. 73.) After the motion was briefed by both parties, the Court on September 13, 2017, entered the First MAA Order, which denied Nixon's motion. (Doc. 77.)

         On September 25, 2017, Nixon filed his second motion to alter or amend judgment. (Doc. 79.) The Court entered an Order, (doc. 80), prompting Nationwide to respond to Nixon's second motion to alter or amend. The Order stated that upon receipt of Nationwide's response the Court would consider Nixon's motion without further notice to the parties. Nationwide responded, and although the Court's Order did not give Nixon leave to file a reply to Nationwide's response, he did so anyway on October 6, 2017. (Doc. 82.) The Court considers Nixon's reply that was filed without leave, although the content of the reply does not change the ultimate result of this Order.

         II. Discussion

         a. Nixon's Second Motion to Alter or Amend is Not Timely

          Under Rule 59(e), a “motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). The Court may not extend Rule 59(e)'s time limit, according to Rule 6(b)(2). Thus, the Court is without discretion to allow Nixon's motion to be heard if it is untimely under Rule 59(e) and cannot extend the twenty-eight day limit. See Wright v. Preferred Research, Inc., 891 F.2d 886, 890 (11th Cir. 1990).

         To determine whether Nixon's motion is timely, the Court has to determine which order Nixon's motion seeks to alter or amend: the Court's March 21, 2017 Summary Judgment Order or the September 13, 2017 First MAA Order. In his second motion to alter or amend, Nixon begins by stating the Court failed in both orders to address structure damages; however, he focuses his arguments almost exclusively on the contents of the Court's Summary Judgment Order. Nixon does not argue that the Court's First MAA Order was wrong in its consideration of the interpretation of the meaning of “dwelling” in the SFIP, which was the sole issue challenged by Nixon's first motion to alter or amend:

[Nixon] moves the Court to reconsider the portion of its order granting summary judgment for the Defendant discussed at pages 10-12 of its [Summary Judgment Order]. . . . Specifically, the Court stated that the term “dwelling, ” defined as a “building, ” did not include soil providing lateral and subjacent support to the structure. Plaintiff respectfully submits that this is incorrect.

(Doc. 73 at 1.) Nixon's second motion to alter or amend in reality does not challenge the Court's First MAA Order, but rather its earlier Summary Judgment Order.

         Nixon nonetheless argues in his current motion that he is actually challenging the First MAA Order because it failed to address a statement about damages to his home made in a footnote to his first motion to alter or amend. This sole reference to structure damages in Nixon's first motion to alter or amend is buried in his argument that the term “dwelling” includes soil under the building.

         Nixon states in a footnote that: “[Nationwide's representative and expert] testified that the term ‘dwelling' includes the exterior stairs, the slab and wooden pilings, and the subterranean soil providing support. The flood in this case damaged each such element. Yet the Court's decision bars coverage for all of this.” (Doc. 73 at 2 n.1 (internal citations omitted).) Nixon's non sequitur footnote, without any citation to any legal authority, is not enough to raise an argument about structure damages. The footnote quotes Nationwide's representative and expert's testimony, but does not show how that testimony has any bearing on Nixon's right to recovery for structure damages. Even after Nationwide's response to Nixon's first motion to alter or amend addressed the definition of “dwelling, ” Nixon did not use his reply brief to correct the Court's focus to structure damages and instead continued to argue about the meaning of “dwelling.” (See Doc. 76.) Nixon cannot make the second motion to alter or amend timely by saying he challenges the Court's First MAA Order, where the second motion to alter or amend-outside of its lone reference to the Court's supposed failure to address the non sequitur footnote- solely disputes the basis for the Court's earlier Summary Judgment Order. See Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 (11th Cir. 2004) (appellant cannot incorporate arguments made in lower court by reference in appellate brief).

         Nixon's second motion to alter or amend is an attempt to have the Court revisit the legal and factual basis of its March 21, 2017 Summary Judgment Order and not the grounds for its September 13, 2017 First MAA Order. The motion was filed well after the twenty-eight day period following the Court's grant of summary judgment in favor of Nationwide on March 21, 2017. Thus, even if Nixon's ...


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