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Buesing Corp v. Helix Electric of Nevada LLC

United States District Court, D. Nevada

March 20, 2019

BUESING CORPORATION, Plaintiffs,
v.
HELIX ELECTRIC OF NEVADA, LLC, Defendants.

          ORDER

         Presently 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).

         I. Facts

         On 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. 41-6).

         On 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.

         On 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.

         On 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).

         On 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. 33).

         On June 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 No. 8).

         On 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).

         On July 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).

         II. Legal Standard

         A 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).

         Rule 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.

         III. ...


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