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Entertainment USA, Inc. v. Moorehead Communications, Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

June 1, 2015



RUDY LOZANO, District Judge.

This matter is before the Court on the Motion to Reconsider filed by Plaintiff Entertainment USA, Inc., on April 16, 2015 (DE# 108). For the reasons set forth below, Plaintiff's Motion to Reconsider (DE# 108) is DENIED.


Plaintiff Entertainment USA, Inc. is one of several companies doing business as One Wireless World ("OWW"). In January 2006, OWW entered into a referral fee agreement ("Agreement") with Defendant Moorehead Communications, Inc. ("Moorehead"). In 2012, OWW filed a complaint against Moorehead alleging that Moorehead had breached the Agreement by refusing to pay OWW referral fees, among other claims. OWW and Moorehead both moved for summary judgment on the meaning of the term "referrals" in the Agreement. OWW argued that "referrals" included locations, individuals, and entities referred by OWW to Moorehead. Moorehead maintained that "referrals" was limited to locations referred by OWW. The parties also disputed the duration of the Agreement, among other issues.

On March 20, 2015, the Court denied OWW's motion for summary judgment and granted in part and denied in part Moorehead's motion for partial summary judgment ("March 20 Order"). (DE# 106.) OWW now brings the instant motion to reconsider the March 20 Order, asserting that the Court made manifest errors of law when it found that (1) the term "referrals" is limited to referred locations, (2) OWW is entitled to referral fees for relocated stores only if it referred the new locations, and (3) the Agreement is terminable at will. These issues have been fully briefed and are ripe for adjudication.


Motions to reconsider serve to correct manifest errors of law or fact or to present newly discovered evidence. Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1269 (7th Cir. 1996). A motion to reconsider performs a valuable function where:

the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare.

Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted). A motion to reconsider is not a vehicle for rearguing previously rejected motions or for rehashing old arguments. Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). The disposition of a motion to reconsider is left to the discretion of the district court. CBI Indus., 90 F.3d at 1270.

In its motion, OWW claims that the Court made a manifest error of law by failing to consider extrinsic evidence when interpreting the Agreement. OWW cites Millner v. Mumby, 599 N.E.2d 627 (Ind.Ct.App. 1992), for the proposition that the Court may consider extrinsic evidence

so long as it has not been offered to vary the terms of the written contract[, ]... to show that fraud, unintentional misrepresentation, or mistake entered into the formation of a contract[, ]... to apply the terms of a contract to its subject matter[, and]... to shed light upon the circumstances under which the parties entered into the written contract.

(DE# 119 at 3 (citing Millner, 559 N.E.2d at 629 (citations omitted)).) In Millner, the court considered extrinsic evidence that had been offered to show one factor in the formation of the contract - that is, which party developed the specifications written into the contract. 559 N.E.2d at 629. "Because this testimony did not serve to vary any term of the contract, the trial court properly admitted it into evidence and considered it in reaching a judgment." Id.

OWW claims that the Court should have considered extrinsic evidence here because it would "explain[] the terms" of the Agreement, apply the terms to its subject matter, and shed light on the circumstances under which the parties entered the Agreement. (DE# 119 at 6; see also id. at 5 n.1 (asserting extrinsic evidence "explains the terms" of the Agreement).) However, Indiana courts have held that "extrinsic evidence is not admissible to add to, vary or explain the terms of a written instrument if the terms of the instrument are susceptible of a clear and unambiguous construction." Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 532 (Ind. 2006) (citation omitted; emphasis added); see Metro Holdings One, LLC v. Flynn Creek Partner, LLC, 25 N.E.3d 141, 157 (Ind.Ct.App. 2014) (same).

While OWW claims that its extrinsic evidence is not offered to vary the terms of the Agreement, that is precisely what it seeks to do. OWW asks the Court to consider evidence in order to vary the meaning of the term "referrals" in the Agreement, a term that this Court found to be unambiguous. Indiana's four corners rule precludes the Court from doing so. "If an instrument is worded so that it can be definitely interpreted and its terms carried out within the instrument by applying that language to the subject matter thereof without contradiction, then the instrument cannot be termed uncertain or ambiguous, and extrinsic evidence is not admissible to vary or contradict its meaning." East v. Estate of East, 785 N.E.2d 597, 601 (Ind.Ct.App. 2003) (citation omitted); see Sees v. Bank One, Ind., N.A., 839 N.E.2d 154, 161 (Ind. 2005) ("As a general proposition a party is excluded from presenting extrinsic evidence of prior or contemporaneous oral agreements offered to vary or contradict the terms of a written contract.") (citation omitted). Indiana courts have repeatedly held that extrinsic evidence should not be considered where a contract is clear and unambiguous. See, e.g., Haub v. Eldridge, 981 N.E.2d 96, 102-03 (Ind.Ct.App. 2012) (reversing denial of summary judgment where trial court erred by considering extrinsic evidence in connection with unambiguous contract language); Keck v. Walker, 922 N.E.2d 94, 102 ...

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