United States District Court, D. Nevada
before the court is plaintiff Buesing Corporation's
("Buesing") motion for reconsideration. (ECF No.
51). Defendant Helix Electric of Nevada, LLC
("Helix") filed a response (ECF No. 54), to which
Buesing replied (ECF No. 55).
August 7, 2015, Helix entered into a contract with Buesing
for the performance of certain pile driving construction work
at a project in Henderson, Nevada (the "solar
project"). (ECF No. 33-3). The contract required Buesing
to install 7, 898 piles at a total cost of $313, 296.00 in
accordance with certain project documents, including the SNWA
Ninyo & Moore pile test ("the pile test
report"). (ECF Nos. 1, 33, 33-3). The pile test report
detailed soil and site conditions. (ECF No. 41-3). Based on
the information in the report, Buesing anticipated that it
would install approximately 527 piles per day. (ECF No.
August 31, 2015, Buesing began working on the solar project.
(ECF No. 41). Buesing almost immediately encountered soil
conditions that were different than those disclosed in the
pile test report. (ECF No. 41-6). After four days of work,
Buesing had installed only 500 piles, many of which were
damaged and required removal. Id.
September 11, 2015, Buesing informed Helix that it
encountered differing soil conditions. (ECF No. 41-9). On
September 24, 2015, Helix and Buesing modified the contract
in the amount of $130, 000.00 for "pulling and drilling
for remediation of piles." (ECF No. 41-6). Despite the
modification, Buesing encountered ongoing difficulties and,
on October 2, 2015, the parties agreed to temporarily stop
installing piles. Id.
October 9, 2015, Buesing informed Helix that it "can no
longer continue the pile work" due to the differing soil
conditions. (ECF No. 41-15). On October 12, 2015, Helix sent
Buesing a written notice of default for Buesing's
abandonment of the solar project. (ECF No. 41-16). The next
day, Buesing notified Helix that it would be on the site the
following day "to work through the issues involved in
completing the remediation work." (ECF No. 41-17).
Buesing allegedly did not cure its default but instead
"demobilized its equipment, tapered down, stopped work,
and performed only a minimal amount of sub survey
work[.]" (ECF No. 33).
October 16, 2015, Helix terminated the contract for
Buesing's "failure to perform and job
abandonment." (ECF No. 41-19). On that same day, Buesing
sent a letter to Helix, in which Buesing stated that it had
not abandoned the solar project but that it could not
complete performance without further modification of the
contract. (ECF No. 41-18). Thereafter, Helix contracted with
another company to compete the pile driving work. (ECF No.
21, 2016, Buesing filed a complaint, asserting three causes
of action: (1) declaratory judgment; (2) breach of contract;
and (3) breach of the implied covenant of good faith and fair
dealing. (ECF No. 1). On July 8, 2016, Helix filed an answer
and counterclaim, asserting three causes of action: (1)
declaratory judgment; (2) breach of contract; and (3) breach
of the implied covenant of good faith and fair dealing. (ECF
November 27, 2017, Helix moved for summary judgment on (1)
Buesing's breach of contract claim; (2) Buesing's
good faith claim; (3) Helix's breach of contract claim;
and (4) Helix's good faith claim. (ECF No. 33). On
January 8, 2018, Buesing filed a cross-motion for summary
judgment requesting that the court deny Helix's motion.
(ECF No. 41).
13, 2018, the court issued an order holding that Buesing
breached the contract by failing to install piles in
compliance with the contract. (ECF No. 50). Now, Buesing
moves for reconsideration. (ECF No. 51).
motion for reconsideration "should not be granted,
absent highly unusual circumstances." Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 880 (9th Cir. 2009). "Reconsideration is
appropriate if the district court (1) is presented with newly
discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an
intervening change in controlling law." School Dist.
No. Uv. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
54(b) permits a district court to revise an order that does
not terminate the action at any time before the entry of
judgment. Fed.R.Civ.P. 54(b); see also Los Angeles v.
Santa Monica Baykeeper, 254 F.3d 882, 887 (9th Cir.
2001). However, reconsideration is "an extraordinary
remedy, to be used sparingly in the interests of finality and
conservation of judicial resources." Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (internal
quotations omitted). A motion for reconsideration is also an
improper vehicle "to raise arguments or present evidence
for the first time when they could reasonably have been
raised earlier in litigation." Marlyn
Nutraceuticals, 571F.3 dat 880.